Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

I beg to move amendment No. 14, in

clause 7, page 5, line 34, at end insert—

'(d) in contravention of the express wishes of the source of the information.'.

Mrs Irene Adams (Paisley North, Labour)

With this it will be convenient to discuss the following:

Amendment No. 13, in

clause 7, page 5, line 38, at end add—

'(4) Subject to subsection (2), the Agency must permit medical research to be submitted for peer-review publication.'.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

Amendment No. 14 states that the agency must not publish any matter in contravention of the express wishes of the source of that information. It has been drafted to give assurance to those bodies with which the Health Protection Agency may co-operate in the acquisition of information. We have previously discussed those at some length. It would give them confidence that information would not be divulged. Clearly, there are overriding considerations to do with the Data Protection Act 1998 and the public interest. However, it is very important when information is shared between bodies and individuals that it is done in a spirit of security, particularly in some of the areas that the agency will be dealing with, which are quite sensitive.

Amendment No. 13 deals with ethics. It is now accepted as ethically unacceptable to conduct biomedical research, particularly that involving consent and human subjects, if it is not to be put into the public domain, whether the results are positive or negative. It is important, and certainly in line with the spirit of the age, that that should be reflected in the Bill, especially as the agency will be intimately involved with research on human subjects. I would be grateful if the Minister considered both amendments.

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

The clause takes forward a proposal made in the 2002 consultation paper that received wide support. Subsection (2) sets three limitations on the agency's powers. It makes it clear in paragraph (a) that publication is not permitted if it contravenes the Data Protection Act 1998. Paragraph (b) states that the agency must not contravene express restrictions in other Acts, and paragraph (c) states that it must not publish if it is not in the public interest to do so.

Amendment No. 14 proposes an additional limitation: the agency should not have the power to publish if publication were to contravene the express wishes of the source of the information. I appreciate that some people would not be willing to share information with the agency if they believed that there was a risk that it might be published without their consent. I agree that the agency's effective functioning could be damaged if essential information were withheld. However, the amendment is not the right way to deal with those problems.

In effect, the amendment would wreck the provision, because the agency would lose the power to publish if it was the wish—or even the whim or caprice—of the source of the information that publication should not take place. Not many would find that acceptable. I am sure that the hon. Gentleman can think of many circumstances in which the sort of information that we would expect to be published could be prevented from being made available in the public domain.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

The Minister has satisfied most of my concerns. However, the amendment includes the phrase ''express wishes''. It does not allow the agency to ask a third party, ''Do you mind if we publish?'' It has to have a person's express wishes. When disclosing information to the agency, the body concerned would have to say expressly that the information was for the agency's eyes only.

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

I can still envisage such a provision being against the public interest or against the interests that the HPA is designed to protect and enhance—I am sure that the hon. Gentleman can imagine such circumstances—and it could be against the public interest even if it is expressly articulated as the hon. Gentleman suggests. It is for the agency to build confidence among those with whom it has dealings. We should remember that clause 5 provides for a mutual duty of co-operation. Those bodies do not have a choice; they have to co-operate with the agency. After all, the body has the security of knowing that the agency must not publish if publication is not in the public interest.

Amendment No. 13 would make it the duty of the agency to allow medical research—presumably carried out by the agency's employees and/or contractors—to be submitted for peer-review publication. However, publication would not be permitted in contravention of subsection (2). Again, I am sympathetic to the main concern—the view that people engaged in research should be able to make the results of their research available—and I warmly welcome the view that we should encourage peer review before publication, in order to ensure some quality control of what is put in the public domain. However, we have made it clear in other contexts that we are in favour of openness as a general rule. Indeed, I mentioned earlier that we are looking for research findings in general to be published.

The Government fund various ways of making the results of medical research accessible, but I shall not go into detail. The publication of research can sometimes be important to people's careers, but although we are enthusiastic about the value of publishing research, there is no getting away from the fact that the amendment is another attempt to set out in too prescriptive a fashion how the agency should conduct its affairs. I refer to our debate earlier this morning in which hon. Members expressed concern about the degree of micromanagement. I sympathise with the concerns behind the hon. Gentleman's probing amendment, but we do not want to get into micromanaging the agency's affairs in primary legislation. That is why I recommend that hon. Members resist the amendment if the hon. Gentleman presses it to a Division.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

I am grateful to the Minister for setting out her thoughts on these issues. I will deal with amendment No. 13 and the issue of ethics first, as that is the most straightforward. In a sense, the agency will be bound by the normal rules of ethics: its projects will be subject to scrutiny in the same way as any other institution's projects would be. The nature of its work may add a certain flavour to the deliberations, but they are subject to ethical scrutiny, and an ethics committee would require that any research should be published; that is axiomatic. The amendment would, I hope, simply cement what is good practice and ethically defensible.

Perhaps the Minister will give this complicated area further thought before Report, because an agency that deals with biomedical research needs to be directed to comply with what is now accepted practice—not accepted best practice, but obligatory practice—in the publication of results. People working in this area in the public sector often require some assurance that their research will be published in the normal way. A concern of scientists who work in the public sector is that their research may not be dealt with as it would be by a university, for example. Of course, universities are funded by Government, but in an independent way. It would be helpful if some further thought were given to that point.

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

This is a matter for all sorts of people. For example, editors of peer-review publications have an important role. When and whether to submit things for publication is a matter for expert judgment. There are a lot of standard issues; we do not want to single out the agency. I want to make it clear that we expect the agency to follow a policy similar to that of the National Radiological Protection Board: the only exception to its policy on publications is the commercial work that is conducted on a confidential basis.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

It is helpful to have that on the record; I thank the Minister for her helpful intervention.

I will now deal with amendment No. 14. I am mindful of the Minister's cause, and I am beginning to wonder whether my amendment should have been a sort of second-order enjoinder on subsection (2), because, paragraphs (a), (b) and (c) clearly have primacy. On reflection, the insertion proposed in my amendment might have been a second-order insistence that the agency should not publish matters that are clearly subject to the Data Protection Act 1998 and the public interest. In general, we need to give third parties some confidence that information on sensitive issues that is shared with the agency—I hope that such information will be shared—will be dealt with in a privileged way if that third party feels that that is necessary and has expressly said so. Otherwise, there is room for—

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

I am sorry; I missed that. Is the hon. Gentleman referring to clause 7(2)(a), because that paragraph states that the agency must not publish any matter

''which contravenes the Data Protection Act 1998''?

I think that that is what he is arguing for, so I am slightly confused.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

Yes, of course information must not conflict with the Data Protection Act, and must be published in the public interest. For example, if information came into the agency's possession—

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

I am sorry; I am not sure that the Bill states that it must be published in the public interest. It states that the agency must not publish if that is not in the public interest. That is not sophistry.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

I could not possibly accuse the Minister of sophistry. Perhaps I should explain the point of amendment No. 14 in a little more detail. It is intended to put pressure on the agency to take note of the express wish of any third party with which it deals that information that the third party has given to it should not be published. The reason is to ensure that third parties will be forthcoming with the agency, as far as possible.

I absolutely accept the Minister's comments on paragraphs (a), (b) and (c) and the fact that my proposed paragraph (d) would cut across the entire subsection. She is right, and my intention in drafting the amendment was not to do that. However, she may want to consider—and those who draft amendments

on her behalf may want to give some thought to—a way of giving third parties the assurance that information that they may give the agency will be dealt with in a privileged way.

I should like to discuss the public interest in more depth on clause stand part, if I may. At present, however, the point I want to raise is that if it is clearly in the public interest that information given to the agency by a third party should be published, but the third party says that it does not want it published, that is just tough. It is in the public interest and will be published. I fully accept that my amendment might cut across that and I should not want that to happen.

On reflection, following the Minister's assurances, I shall not press amendments Nos. 13 and 14, but it would be reasonable for the Minister to reflect on the ethics of those amendments and find a form of words that would allow third parties to have confidence that the information that they shared with the agency would be dealt with in a privileged way, unless other considerations overrode that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

My concern with clause 7 has to do with the phrase ''in the public interest''. I know that Lord Fowler was greatly exercised by that in another place, and railed against it. We are right to be concerned because the phrase can mean all sorts of things. We need to be clear about who decides what is or is not in the public interest, and about the circumstances in which something might be deemed to be in the public interest.

It is easy to put the words almost glibly into the Bill; they appear often in legislation. However, to protect the liberties of individuals we need to be clear about what is in the public interest. The agency will deal with much sensitive information—some of the most sensitive information that it is possible to deal with, in the light of the terrorist threat and others. I suspect that the term ''the public interest'' will send shivers up the spine of many of us. It can be and is misused—not just in this country—to justify certain actions.

Precisely who will deem something to be in the public interest under the Bill, and who will decide that in the final event? Will the Minister define specifically the instances in which she envisages that invocation being used?

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

Neither the Bill nor other legislation defines when publication would not be in the public interest. All the circumstances of a case have to be considered, and those are not readily specified in legislation. Ultimately, as I have said, it is for the courts to decide whether publication is not in the public interest. However, as the hon. Gentleman says, we all accept that, given the nature of some of the material that the agency might deal with, there will be times when publication would not be in the public

interest. National security and defence interests might be prejudiced, or information might touch on confidential aspects of an individual's health.

The reference in subsection (2)(c) to the public interest is to balance the references in subsections (2)(a) and (2)(b) to duties in statute. I understand that, without it, the implication might be that common law duties could be ignored. The agency, as a public authority, is obliged by section 6 of the Human Rights Act 1998 to act compatibly with human rights—that includes the right to respect for private and family life in article 8—which are given effect in domestic law by a mixture of statute and common law. Without the reference to a public interest test in subsection (2)(c), the power to publish in subsection (1) could be interpreted as overriding interests such as those protected by the duties of confidentiality.

I reassure the hon. Gentleman that subsection (2) is not code for, ''The agency cannot publish material that Ministers do not want published.'' I think that he was hinting at that in the second part of his remark. The question of whether publication is not in the public interest is to be determined objectively—ultimately, in the event of a challenge, by the courts. In that respect, the limitation in subsection (2)(c) does not differ from those in subsections (2)(a) and (2)(b).

No doubt there will be times when the agency will want to consult Ministers and others before taking a decision to publish. However, the decision rests with it. Subsection (1) identifies the agency as the body that has the power to publish, and as the body in subsection (2) that is subject to the few limitations that are set out in that power. That was discussed at some length in another place and I believe that consensus was achieved as a result of the debates.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.

Question proposed, That the Chairman do report the Bill, as amended, to the House.

Dr Andrew Murrison (Shadow Minister, Public Services, Health & Education; Westbury, Conservative)

Before we wrap up, may I say what a pleasure it has been to serve on this Committee. It has been a consensual Committee and a great deal of humour has been expressed all round. I congratulate you, Mrs. Adams, on the way in which you and Mr. Forth have discharged the office of Chairman. I thank the Clerks, also, for the assiduous way in which they have conducted their business, and the messengers who have patiently stood through our deliberations. I also thank the Minister for the helpful way in which she has approached our proceedings.

Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Health; Welwyn Hatfield, Labour)

I join the hon. Gentleman in thanking you, Mrs. Adams, and Mr. Forth for your chairmanship, and in thanking members of the Committee for their good humour during the useful debate of this short Bill. It is my pleasure to record that this has been the briefest Committee stage of a Bill for which I have been responsible as a Minister. The short time that it has spent in Committee is no doubt partly as a result of the nine and a half hours' consideration that it received in another place, but also because it is well thought through and short. I have been responsible for many of the largest Bills, with the longest-lasting Committee stages, in the history of the House, so I am very happy to have served on one of the shorter ones. I am grateful to hon. Members for their co-operation throughout.

Mr Paul Burstow (Shadow Secretary of State for Health, Health; Sutton & Cheam, Liberal Democrat)

I associate myself with the comments of the hon. Member for Westbury and the Minister. I add my thanks for the work that was done in the other place. I am sure that that helped to facilitate the speedy passage of the Bill through this Standing Committee.

Mrs Irene Adams (Paisley North, Labour)

I thank everybody on the Committee, the Minister, the Opposition, the Whips for expediting matters, the doorkeepers for their patience and the Clerk, without whom I could not function. I thank my co-Chairman, Mr. Forth, and my assistant, Mr. Hall, and everyone for their good humour and, most of all, their brevity, which will allow this Chairman to get an earlier flight home.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at five minutes to Ten o'clock.