Clause 152
Coroners and Justice Bill
Roger Gale (North Thanet, Conservative)
I remind the Committee that with this we are discussing the following: amendment 50, in clause 152, page 100, line 8, at end insert—
‘(1A) No information-sharing order may authorise data to be shared in any way that might result in the date being used for a purpose different from that for which its collection was originally authorised.’.
Amendment 51, in clause 152, page 100, line 9, at end insert—
“‘an appropriate person” means any public authority within the meaning of section 6 of the Human Rights Act 1998, and, for the purposes of that section, any use of data under an information sharing order shall count as exercising a function of a public nature and shall in no circumstances count as an act whose nature is private;’.
Amendment 52, in clause 152, page 100, leave out lines 24 and 25.
Amendment 53, in clause 152, page 100, line 27, leave out ‘it is satisfied’ and insert ‘the following conditions are met’.
Amendment 54, in clause 152, page 100, leave out lines 29 to 32 and insert—
‘(a) the order will not authorise data to be used in any way that implies any new government policy or any deviation from previously announced government policy, and “government policy” in this section means only that policy to which there is clear and unambiguous reference in the speeches or other remarks of Ministers during the passage of a bill or bills in Parliament,
(b) the order is proportionate to the policy objective it seeks to further, and’.
Amendment 356, in clause 152, page 100, line 30, leave out ‘secure a relevant policy objective’ and insert ‘serve the public interest’.
Amendment 55, in clause 152, page 100, line 33, leave out from ‘order’ to end of line 35 and insert
‘does not, other that with that person’s consent, interfere with or restrict any person’s right to or interest in privacy, whether that right or interest arises under any statute or at common law or in any other way.’.
Amendment 56, in clause 152, page 100, line 41, at end insert—
‘(5A) No information-sharing order shall be made unless the authority making the order identifies and publicly declares which existing government policy the order would further, the evidence for the existence of that policy in the speeches or remarks of Ministers during the passage of bills in Parliament and a statement of how the order will further that policy.’.
Amendment 57, in clause 152, page 101, line 8, at end insert
‘, except that such person must be a public authority for the purposes of section 6 of the Human Rights Act, and no power granted under this subsection shall be used to authorise any person further to share data;’.
Amendment 58, in clause 152, page 101, leave out lines 13 and 14.
Amendment 59, in clause 152, page 101, leave out lines 18 and 19.
Amendment 61, in clause 152, page 101, leave out line 22 and insert—
‘(h) modify any statutory instrument made under the Data Protection Act or any statutory instrument made under any other enactment, but may not modify any statute or any rule of common law.’.
Amendment 60, in clause 152, page 101, leave out line 22.
Amendment 147, in clause 152, page 103, line 13, at end insert ‘and
(c) undertake a privacy impact assessment.’.
Amendment 357, in clause 152, page 103, line 13, at end insert ‘and
(c) supply a full privacy impact assessment.’.
Amendment 148, in clause 152, page 103, line 14, after ‘order’, insert ‘and privacy impact statement’.
Amendment 149, in clause 152, page 103, line 18, at end insert
‘and comment on the compatibility of the proposals with all data protection requirements laid down in statute.’.
I have had a look at the grouping of amendments. It is fairly comprehensive and it might be for the convenience of the Committee if we treat our discussions also as a stand part debate. Members of the Committee might like to bear that in mind when seeking to make contributions to the debate.
David Howarth (Cambridge, Liberal Democrat)
The hon. Member for Stafford was in the middle of an intervention at the end of this morning’s sitting, and I would be glad to hear the rest of it.
Roger Gale (North Thanet, Conservative)
Order. This Chairman takes the view that interventions fall when the guillotine comes down. However, if the hon. Gentleman wishes to give way to the hon. Member for Stafford, he may do so.
David Kidney (Stafford, Labour)
Does the hon. Gentleman agree with Sir Mark Walport, who said that he never envisaged that clause 152 would deal with medical records, and that he expected a separate scheme especially for medical records? The fact that observers fear that medical records could go willy-nilly everywhere under the clause shows that it is too widely drawn and needs restricting. Does the hon. Gentleman accept that the present group of amendments does not quite meet the objections that Richard Thomas disclosed to us in his evidence, and in his memorandum that we have received since then?
David Howarth (Cambridge, Liberal Democrat)
I accept both those points. The evidence of Richard Thomas and Mark Walport shows that the Government’s case that they were simply following the Thomas and Walport review is not right. Both Richard Thomas and Mark Walport have clarified their position and say that they are worried that the clause is now far too wide. The hon. Gentleman might also be right that our amendments to tease out the Government’s position are not the proposals that Walport and Thomas wanted to see.
The hon. Gentleman made an important point about medical records, and perhaps now is the right time to mention that the BMA said that there will often be a big benefit for medical research in being able to share information, but that the information does not have to be associated with a named individual. The BMA’s support for data sharing was support for anonymous data to be shared for medical research purposes, not for the purposes allowed under the clause. I should have referred to the use of pseudonyms rather than the data being completely anonymous. We need to track through an individual to undertake the research properly, but the individual must not be named.
Tim Boswell (Daventry, Conservative)
Although I do not dissent from the thrust of the hon. Gentleman’s argument, does he agree that one of the difficulties behind such matters is something that I have already mentioned in Committee? The Government tend to take an on-off view of data sharing, as if everything has to be shared rather than just salient parts of the record, which may or may not be anonymised for the purpose for which they required to be shared?
David Howarth (Cambridge, Liberal Democrat)
I am sure that is right, but the way to proceed is that mentioned by the hon. Member for Stafford, which is under a specific scheme for pseudonymised medical record sharing. We are talking about an important special case.
Alun Michael (Cardiff South and Penarth, Labour)
In his introductory remarks, the hon. Member for Cambridge was painting the clause as a great plot. However, his argument is now much more to the point. It is about how we undertake the appropriate use of data. Does he accept that it is all about making the right judgments according to the right principles, and the importance of the code of conduct applying in all cases?
David Howarth (Cambridge, Liberal Democrat)
I agree that the code of conduct is important, but we have to get the primary legislation right, so that we do not allow the Government too broad a power. We have to somehow control it by using the code of conduct, which will not be all that clear in individual cases. It is important to get the powers right first so that it is more difficult to use them disproportionately. I am not sure whether it is a conspiracy, though I suspect that the right hon. Gentleman is right, but it has become a habit.
My underlying worry about the clause is that it has become a habit to draw up such statutory powers over-broadly. That is how the problems of detail are solved—not by thinking hard about them and being more specific. It seems that the tendency is to solve them by saying, “We will grab the broadest possible power and leave the problems until later.” That is not good enough. Our duty as parliamentarians is to ensure that the powers are incapable of being used in an inappropriate way.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
The hon. Gentleman’s point is reinforced when one looks at proposed new section 50B:
“An information-sharing order may provide for the creation of offences triable either way which are punishable—
(a) on conviction on indictment, by imprisonment for a term not exceeding the specified period or to a fine or to both”.
Here we have vague crime and sentencing-making powers that are not described in the Bill, which will be left to a subsequent or the present Secretary of State to devise, about which he and I as Members of Parliament have absolutely no idea. If we are to make the criminal law, it should be clear in the Bill.
David Howarth (Cambridge, Liberal Democrat)
That is an important principle. As the penalties and the consequences get worse, the need for parliamentary scrutiny rises. The breadth of the powers are breathtaking in the way that they have been written. The data can be shared with any person or organisation, presumably in any part of the world, not just with someone or with an organisation in Britain, and certainly not just with an organisation that is bound by the Human Rights Act and is not an organ of the state.
An order can be made in pursuance of any relevant policy without any restriction at all. Among the many consequences of an order, or part of the content of an order, is the power to amend primary legislation to change any enactment. It is important to bear in mind that when Mark Walport and Richard Thomas wrote their report, they made it clear that they did not envisage such breadth. They talked about specific circumstances and they now object, and I strongly object, to the possibility of using an information-sharing order to override the provisions of the Data Protection Act.
Walport and Thomas envisaged information-sharing orders subject to the Data Protection Act and all eight of the data-sharing principles, which include the idea that data collected for one purpose should not be used for another. The Government should acknowledge that the Bill as drafted goes way beyond the evidence and policy base that they thought they had in the Walport and Thomas report.
I will go through the points that our amendments raise and ask the Government to comment on them individually. My first point concerns amendment 49 and how information-sharing orders can be in favour of “any person”. I realise, and we debated it earlier, that there are examples of the line being blurred between the public and the private sector. It is now often difficult to tell where that line lies. I can see the origin of “any person” in that. However, to leave the wording unrestrained like that has many dangers.
What happens in the case of data that are controlled by foreign corporations and Governments, and especially by organisations that are not subject to the Human Rights Act, and therefore are not subject to the controls and respect for individual rights and freedom that the Act establishes? I know what the problem is, but I cannot accept that the solution is simply to leave it to Ministers to make up their minds later whether, in any particular case, the person with whom data have been shared is appropriate.
I consider amendment 52 to be the most important in the group, and if I am not happy with the Government’s reply, I shall press it to a Division. The amendment would remove from the definition of “sharing” data that are used for a different purpose from the one originally authorised. That is automatically a violation of the principles of data protection, and I object to a provision in the Bill undermining data protection.
We need to be clear. The idea that Mark Walport and Richard Thomas put forward—that the orders are not meant to be used to undermine the Data Protection Act—is inherently contradicted by the clause. If the Government accept, as I hope they will, Mark Walport’s and Richard Thomas’s criticisms, it follows that they must remove those words.
We have already covered some of the examples. For instance, the medical example is relevant when it comes to using information for difference purposes, as is the identity card database example. The DNA database example is especially relevant, because using DNA in a criminal investigation is very different from using DNA for all the other purposes for which it could be used by the state or others. Amendment 52 is crucial, and I am more interested in the Government’s reply on it than any other point that I make.
The other amendments are more technical, but there are still weaknesses in the clause. Amendments 53 to 56 would change the part of the clause that says that the authority—the Government Minister—needs to be satisfied, before an order can be made, that it
“is necessary to secure a relevant policy objective”,
that it
“is proportionate to that...objective”,
and that it balances
“the public interest and the interests of any person affected by it.”
That strikes me as being far too weak. Our proposals test ways in which the measures in subsection (4) can be strengthened.
Amendment 53 would remove the subjective element. Instead of a decision being made on the basis that the conditions are satisfied in the opinion of the Minister, there would be a requirement for the conditions to be satisfied. That goes back to the point made by the right hon. Member for Knowsley, North and Sefton, East on judicial review. We need to ensure that there is a proper basis for effective judicial review, and give the courts a clear way into the substance of a decision.
Amendment 54 raises the problem of what constitutes a “relevant policy objective”. How do we know what the Government’s relevant policy objectives are? Could they make new objectives up on the spot, including ones that undermine the principles of data protection? There must be some control over that concept.
Walport and Thomas make it clear that information sharing orders should not be used in a way that changes policy under any circumstances. If that is to be achieved, we must be able to identify what existing policy is, and we cannot allow the use of that phrase in the Bill to justify a change simply because the Government now say that our policy is something different.
George Howarth (Knowsley North and Sefton East, Labour)
I am grateful to the hon. Gentleman, but there should be reliance on the word “relevant”. If something was not relevant, his fears would be upheld in any reasonable legal process that followed.
David Howarth (Cambridge, Liberal Democrat)
It could be relevant but new—that is the problem. To follow what Walport and Thomas said about not allowing the orders to be part of a change of policy, we must have a list of existing policies and apply them in the relevant way. We cannot have a new but relevant policy that would justify a change. That important point is what lies behind amendment 56.
Amendment 55 raises the point that a fair balance between the public interest and that of the individuals concerned will always, in the minds of Ministers, come out in favour of the public. That is the job of a Minister—they are supposed to think about the interests of the public. If we are going to protect the interests of individuals and their right to privacy, we must say so far more clearly, rather than simply allowing Ministers to do a balancing test in their own heads, which will inevitably come out in one direction. That is what amendment 55 seeks to achieve.
Amendment 57 is about the problem that the information sharing order could grant powers to do whatever to anyone. It ought to be restricted to people or organisations that count as public authorities and are covered by the Human Rights Act. The amendment also seeks to stop onward delegation of powers to people or organisations that are not covered by the Human Rights Act.
Amendment 59 seeks to remove what I think is a rather weird provision in the clause. In the list of things that the order can do, proposed new paragraph (f) states:
“provide for a person to exercise a discretion in dealing with any matter”.
I do not know what is envisaged, so I want to ask the Government what such a matter could be, and about the possibility of allowing someone to have discretion over whether to ignore the data protection principles.
Amendments 60 and 61 are about any enactment provision. They seek in one case to remove, and in the other case replace, a Henry VIII clause that allows Ministers to change primary legislation by order. I have had a couple of conversations with a leading legal historian who asked me to mention the fact that calling such clauses Henry VIII clauses is a bit of a calumny on Henry VIII, since he never got this power through Parliament—it would not let it through, which illustrates how serious such powers are. The orders should certainly not be allowed to change the Data Protection Act—Walport and Thomas are clear about—or, of course, the Human Rights Act. Whether orders should be allowed to change any primary legislation is, in practice, a more difficult question. If there is going to be such a power, it needs to be very specific and not what seems to be a catch-all.
Those are our central amendments, but there are also amendments 147 to 149, on privacy impact statements, which are a useful technique recommended by the Information Commissioner. If the Government are not going to do anything else at this point, they should think about more effective use of privacy impact assessments.
In the end, the question before us is that raised by the right hon. Member for Knowsley, North and Sefton, East: is what is being proposed justified by the size of the problem identified? The answer to that is that it cannot be. The breadth of the power proposed goes way beyond the inconveniences first identified as the problem to be solved. What are we introducing instead? Through all the submissions from a whole host of organisations, from Privacy International to the British Medical Association—I shall not read them all out because we know them from having received all the briefings—the theme is that the provisions are destructive of trust in the Government and in professionals, such as doctors, doing their jobs. I am perfectly willing to accept that that was not the intention, but I am afraid that that is the effect. The clause has to be changed very clearly and very soon, otherwise people will start to suspect that the intention of the Government is changing in favour of doing something that they really should not be doing.
Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)
Good afternoon, Mr. Gale. The clause is horrible and we would intend to strike it out, although it could be improved if the Minister accepted two of our amendments and two of the amendments tabled by the hon. Member for Cambridge, which we have signed.
Our amendment 356 would remove the phrase
“secure a relevant policy objective”
and insert “serve the public interest”. Amendment 357 is similar to amendment 147, which was tabled by the hon. Member for Cambridge. It demands that the designated authority wanting to make an information sharing order must supply a full privacy impact assessment. We also support the hon. Gentleman’s amendment 52—that is why we signed it—because it removes the frightening proposed new subsection (3)(b) that enables information collected for one purpose to be shared out with organisations for a wholly different purpose. That is a wide-ranging part of the clause, the consequences of which would be to give much more power to Her Majesty’s Government. I ask the Minister to accept the amendments because they would improve an unsatisfactory clause.
We are not at all happy with the clause. From what the excellent Information Commissioner told us the other day in the evidence session, he wanted more powers, which is what clause 151 is all about. However, I do not believe that he wanted to see the Government take for themselves the extra powers to share data—between Departments, as well as with the private sector. He did not want that at all; he was tactful when he spoke to us, but to me he looked uneasy and far from happy.
David Kidney (Stafford, Labour)
This cannot be right. The hon. Gentleman says that he trusts the Information Commissioner, but he is now misrepresenting his views. The commissioner wrote the report that recommended the fast-track procedure to enable data sharing to take place. How can the hon. Gentleman say that he is backing the Information Commissioner in opposing the clause?
Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)
The clause goes much further than the Thomas and Walport review. Perhaps I am a suspicious person, but judging from the mood music at the evidence session, the Information Commissioner did not look to be enamoured with the clause.
In this technological age, more data are always going to be shared. We accept that medical records are going to be shared among hospitals and GP practices, and that the police and the Driver and Vehicle Licensing Agency are sharing more and more data. We recognise that the fight against crime requires more data to be exchanged and shared. There are increasing numbers of CCTV cameras, and local councils are going to share that information with the local police. There was a recent example of that in my constituency. An unfortunate Polish migrant worker was minding his own business in the centre of King’s Lynn when he got beaten up by a bunch of drunken hooligans. The incident was caught on CCTV and the four people involved were then prosecuted, convicted and sent to prison. That is an example of CCTV cameras working well and how data should be shared.
We accept that in this terrifying, terrorist environment there will be more and more data sharing. We want the police and security services to retain the powers that they have, and that will mean more data sharing. However, a balance needs to be struck between the needs of the police in fighting crime and the rights of the individual.
I recently saw a quote from Sir David Omand, the Cabinet Office’s former security intelligence co-ordinator, saying:
“Finding out other people’s secrets is going to involve breaking everyday moral rules.”
The intrusive mining of databases, including accessing phones, could involve “breaking everyday moral rules”. We have to go so far, but surely there is a stage beyond which we should not go. However, much of the data that are shared could, and should, be shared on a voluntary basis. The public do not mind some of their data being shared and we all know what sort of data that is.
Alun Michael (Cardiff South and Penarth, Labour)
I am following the hon. Gentleman with some interest. The idea that there should be a balance between the public and individual interest is one of the basic principles of data sharing. However, he seems to be straying into saying that he accepts that there will be more data sharing, but that it should be done on the basis of common sense. Is that really a basis for decision making? I accept that judgment needs to be applied, but is it enough to leave things to common sense? Does he accept that there are occasions when data that should be shared are not shared, because of the tendency in some courts to retreat into a comfort zone of saying that the safest thing to do is not to share it?
Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)
My concern is that if the Government are given more powers, they are going to use those powers on an increasingly draconian basis. One can look at any Government and see them using their powers in the way I described the other day as “Executive creep”. They want to find out more about what people are doing.
The role of quangos and agencies has grown enormously over the past few years and the private sector has become more involved in working for Departments under contract. I cited this morning some of the Departments that are using private sector agencies. I mentioned that the Office of the Solicitor General has a large contract with Logica. I talked about the Department for Business, Enterprise and Regulatory Reform, and I remind the Committee that, as at June last year, it had 165 databases, of which 90 were maintained by external companies that are private sector contractors.
The MOJ owns and maintains 74 different databases. In a recent parliamentary answer, the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston, did not break down—like some Departments did—which of those 74 were wholly owned by the Department and which were maintained by the Department but run by the private sector. I will be coming back with questions about that because obviously quite a few of those databases are run by major IT companies such as Logica and Autonomy. We do not mind that, because they are excellent companies, but we are looking at some very sensitive databases, such as ARIA, which is the asylum and immigration system, the magistrates courts’ database, the centralised attachment of earnings system, C-NOMIS, and the recorded appearances database.
My concern is that more of that data will be shared between Departments without the necessary checks, because the clause does not carry those checks. Perhaps it would not matter so much if we could trust this Government and if they have had a good record on handling and storing our data, but can we trust them? I am not going to give the Committee a long list of some of the scandals over the loss of data that have occurred in the past few years, where data have not been properly looked after, but the Government are incompetent.
The other thing that worries me is that the Government are becoming increasingly illiberal. I would never have guessed that, as a mainstream Conservative, I would be finding myself way to the left of this Government on some libertarian issues. If one looks at the national ID card scheme, the extra powers that bailiffs have to break in and enter people’s homes to enforce not Crown court or magistrates court debts but civil debts and the other hare-brained schemes that they have come up with, one sees that they are becoming more and more illiberal. In the Bill, we have secret inquests, and now the data-sharing proposals, which just go too far.
Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)
I thought that the hon. Gentleman said earlier that he believes in the use of common sense, not statutory rules. But he now seems to be arguing that there ought to be a proper framework against which any Government can be held to account, which we all agree with. His current argument suggest that the proper way forward is voluntarism, but I do not follow how that works.
Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)
At the moment, a lot of voluntary arrangements are in place and a huge amount of data are shared between Departments. What is happening at the moment across Departments leads to the necessary level of data being shared. It is our proposition that when the Government make mistakes over how data are handled and stored, they should be held to account—we argued earlier that the Government should not have Crown immunity. But we also feel strongly that the powers under the clause just go too far. It is not just me who is saying that, because Liberty, which the hon. Member for Cambridge quoted earlier, said that it
“strongly opposes these amendments as the powers it gives are extraordinarily broad and make a mockery of the safeguards contained in the DPA (Data Protection Act 1998).”
The Joint Committee on Human Rights, a hugely eminent Committee of parliamentarians, said in its 14th report:
“We fundamentally disagree with the Government’s approach to data sharing legislation, which is to include very broad enabling provisions in primary legislation and to leave the data protection safeguards to be set out later in secondary legislation.”
We heard Dr. Meldrum from the BMA say the other day that the clause could seriously undermine the confidence that patients have in doctors. It could lead to patients being reluctant to disclose personal information, and even making them reluctant to go to a surgery in the first place.
This morning, we received a briefing from the Wellcome Trust, the Medical Research Council and the Academy of Medical Sciences, which states:
“However, we recognise that patient records are both sensitive and personal, and therefore should be protected by robust safeguards. The research benefits will only be realised if there are appropriate mechanisms in place so that the public, patients and doctors are able to trust that their data will be kept secure and confidential.”
It is about trust, and the clause represents the final breakdown of the privacy contract between the state and individuals. That is why we will vote against the clause, unless the Minister comes up with serious concessions. I believe that she is aware of the widespread public opposition, and Labour Members, who have so far been silent in the debate, must understand the level of public concern.
Alun Michael (Cardiff South and Penarth, Labour)
The hon. Gentleman is on a rant that seems to be designed for press consumption. Labour Members are taking part in a constructive debate with the Minister, who appears to be listening, so will he stop ranting?
Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)
I have been expressing my views forcefully, but I do not regard that as a rant. Conservative Members take the clause very seriously. We have co-operated with the Minister on many parts of the Bill. We started off in a spirit of bipartisanship and co-operation, and we want to work with the Minister and produce good legislation. My concern is that tagging on this clause will substantially undermine a really good Bill.
Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)
Is the Conservative position that the current legislation is adequate, that voluntarism where it can sensibly be arranged is good, and that no additional framework of rules is needed, or is it that there should be some changes to the statutory framework, but that the changes are the wrong ones?
Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)
It is both. We feel that the current rules are working well, although there could be improvements. We do not feel that this is the way to go about it because we feel that—this is my last point—if one destroys public trust and confidence, undermining the vital privacy contract between the public and the Government, it leads to a breakdown in trust and public opposition, cynicism and apathy, which will undermine the Government’s whole data protection programme.
George Howarth (Knowsley North and Sefton East, Labour)
I had intended to catch your eye before the hon. Gentleman challenged us to do so, Mr. Gale. I want to make a few remarks, and I should say at the outset that I am a member of the Intelligence and Security Committee. What I have to say on that score will be fairly restricted, but it gives me a particular vantage point from which to consider data sharing.
I do not want to be unkind to the hon. Gentleman, because I know that he means well, but there is a world out there and activities taking place of which he almost failed to take any account. Various general secretaries of the Security Service have given estimates of how many plots there are at any given time. I do not intend to go into figures, but a conservative estimate is that there are more than 100 terrorist plots at any one time in the UK. That means that there are many networks of people plotting to carry out some appalling incident that would result in the loss of many lives. There cannot be any disagreement between any of us that that is going on. Some of those plots might overlap but many people are involved.
The technologies that those people use move on rapidly, and they become aware of changes very quickly. They have the resources to access those technologies and the skills to make use of them. The state and its agencies cannot broadcast what they are doing and cannot in every case defend publicly what they are doing; it is the nature of the activity that prevents them from doing so. They do not have the power to share data mined from a lot of different places. Are we saying that the civil liberty issues are greater than the threat?
Jeremy Wright (Whip, Whips; Rugby and Kenilworth, Conservative)
I understand the right hon. Gentleman’s argument, but we believe that the power is far too broad. His argument is about the interests of national security, but “national security” or the interests thereof are not mentioned in the clause. Will he explain why such broad powers are necessary to fulfil the objectives that he has described?
George Howarth (Knowsley North and Sefton East, Labour)
I thought that I was doing that. The clause is so drafted—the hon. Member for Cambridge said that it was broadly drafted—because technologies change so rapidly, as do the methods used by the groups involved in such activities. If we were to be so precise in drafting the clause, it might remove the possibility of data sharing in the future by means that we cannot even imagine. We must rely on achieving a balance between the two principles.
David Howarth (Cambridge, Liberal Democrat)
I want to return to the right hon. Gentleman’s central point, which is that there is a big threat so such measures should be allowed. No one is denying that there is a threat, but the problem is that such measures are taken time and again, whatever is before the House. We are always asked to compare the size of the threat with a particular loss of freedom or a particular loss of rights. We should stop doing that and look instead at the whole picture to see what we have lost in total and ask whether, given the threat, it is proportionate. The threat is there, but we must bear in mind the whole picture. We have drifted time and again into accepting the argument and, at some point, we need to call a halt and look back to see where we have come from.
George Howarth (Knowsley North and Sefton East, Labour)
I understand the hon. Gentleman’s point, which follows his earlier observations, but he is being myopic. It is as though there is a static situation and that, consequently, we can fix a position at a given time in legislation, which will inevitably cover all eventualities in the future. The position is not like that.
I do not claim to be the world’s greatest expert in such matters, but I know that agencies have to run very fast to keep up with how technologies are being used. If the world was as the hon. Gentleman would like it to be, his argument would hold up. Unfortunately, it is not and, for that reason, we need to have fairly broad powers, and I shall explain how such powers should be supervised in a moment.
Jeremy Wright (Whip, Whips; Rugby and Kenilworth, Conservative)
I understand the right hon. Gentleman’s point about the fast-moving and changing situation, and nothing that I am putting to him suggests that we should be specific or prescriptive about the mechanism that should be used.
Information sharing is necessary. I accept that, under proposed new section 50A(4)(c), the safeguard states that
“the provision made by the order strikes a fair balance between the public interest and the interests of any person affected by it”,
but proposed new paragraph (a) states that
“the sharing of information enabled by the order is necessary to secure a relevant policy objective”.
That is defined not terribly reassuringly in the explanatory notes as
“For an appropriate minister it is a policy objective of that Minister.”
In other words, under proposed new subsection (4)(a), any policy as defined by a Minister will do. If the right hon. Gentleman is right—I am sure that he is—and we need the powers for certain restrictive national security-related purposes, why on earth do we not say so in the Bill?
George Howarth (Knowsley North and Sefton East, Labour)
I did not draft the Bill. The hon. Gentleman’s question might be better directed at the Minister. It is not always necessary to spell out in a Bill the purposes of a specific power, provided that proper supervision can be relied on in whatever context it is used.
Alun Michael (Cardiff South and Penarth, Labour)
I want to pick up my right hon. Friend’s point about the speed of change. He is right that the idea of winding back to see where we were 10 years ago and then looking at how we went forward is belied by changing technology. Technology changes not only on an annual basis, but on a monthly or even on a weekly basis. It is important for police and intelligence services to understand and pick up the nature of the trends, which may involve money laundering, fraud or many other activities. I therefore agree with my right hon. Friend that the picture is not that simple. The complexity challenges us, as legislators, to introduce simple legislation, but deal with things flexibly, although the issue is not so simple to deal with.
George Howarth (Knowsley North and Sefton East, Labour)
If I were to be drawn too much on the technology involved, my office would probably laugh out loud when they read the Hansard report of our proceedings. I am afraid that I am somewhat technologically challenged when it comes to what my right hon. Friend has referred to, but his general point is correct.
Finally, I want to talk about the powers that would be vested in Ministers in pursuit of a particular policy, to which the hon. Member for Rugby and Kenilworth, who intervened on me a moment ago, referred. First, the agencies that I am referring to are well supervised already. I know that the Intelligence and Security Committee, of which I am a member, does not meet universal approval in every quarter, but I can assure the Committee that we try hard to provide proper supervision.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
I want to be clear, although it may be irrelevant to the right hon. Gentleman’s point. Will he confirm that the committee of which he is a distinguished member is not a Committee of the House, but one appointed by the Prime Minister and accountable to him but not to the House generally or, through us, to our constituents.
George Howarth (Knowsley North and Sefton East, Labour)
The hon. and learned Gentleman knows full well that that is the case, although I do not intend to get involved in that argument. The ISC is not a committee accountable to the House; we rarely meet in public, although there are plans afoot for that to happen on some occasions. We report to the Prime Minister, and we do so before our reports are made public. Quite often, for reasons that I am sure people will understand, sections of those reports have to be redacted, because we may refer to information that might not be appropriate in the public domain.
Our committee deals with an intercept commissioner, and the directors of the agencies are subject to higher supervision. There is a whole series of checks and balances to ensure that the agencies do not abuse their privileged position.
Roger Gale (North Thanet, Conservative)
Order. I indicated and meant that if the Committee wanted a stand part debate now it could do so—we are certainly getting wider than the amendments. When I said a stand part debate, however, I meant on the clause and not on the entire Bill.
David Howarth (Cambridge, Liberal Democrat)
The point made by the right hon. Gentleman, as I understand it, is that bodies such as the ISC can provide oversight that is as good as giving people rights in court. The trouble with that is illustrated by the Binyam Mohamed case, in which the ISC was dependent on information from the Security Service and the Secret Intelligence Service—or from the Prime Minister, technically. In that case, the 42 missing documents were never given to the ISC, so its original investigation was fundamentally flawed. The only time that the existence of those documents came into public view, and the only way in which the ISC could get them, was when there was a court case because an individual had had their rights violated, which brought the whole thing out into the open.
George Howarth (Knowsley North and Sefton East, Labour)
The hon. Gentleman’s information is not quite correct. I am probably straying rather far from the clause but I mention this for the sake of accuracy. We were asked to look at the phenomenon of extraordinary rendition—had it occurred, who was involved and what was known by who? We did not look into that particular case; we looked at it as one of a number of cases that were allegedly part of that process, and at whether British agencies had any knowledge of what was going on. I do not say that we necessarily got it right, nor do I concede that we got it wrong. It was part of a broader investigation and not based only on that one case.
I am trying to conclude my point about what Ministers do and do not do. The hon. Member for North-West Norfolk gave the impression that anything Ministers do must, by definition, be for grubby reasons. I no longer have to defend what Ministers do or do not do—I am pleased to say—but my right hon. Friend the Member for Cardiff, South and Penarth and I, and others at different times, have had to make decisions about particular cases. I have made that point previously. An obvious case in point, which my right hon. Friend will remember, is that of prisoner recall. The police might be concerned about the activities of someone who is potentially subject to recall. Facts are put before a Minister, who has to decide what is the right thing to do.
I am convinced—and I am sure that this was equally true of Ministers in previous Governments—that in such cases, enormous lengths are gone to so as to ensure that we are being fair and acting in a way that does not discriminate against somebody just because they are subject to recall. My right hon. Friend and I—and other Ministers, I am sure—have laboured for many hours over individual cases to be sure to get it right.
The second point, which I have also made in a previous debate, is that in my experience, Ministers are always well aware that any decision of this kind could ultimately be made the subject of a judicial review. Without going into too much detail, hon. Members might recall a decision that the then Home Secretary, who now goes under the grand title of Lord High Chancellor, my right hon. Friend the Member for Blackburn (Mr. Straw) had to make over the Pinochet case. The Home Office built a cordon sanitaire around him because he was making what was in effect a quasi-judicial decision as a Minister. Whether or not people agree with the outcome, the process that he went through was painstaking and exhaustive. I am sure that Ministers in previous Governments will also have gone to such lengths when undertaking such a process. It is not something that Labour Ministers do and others do not. It is a responsibility that Ministers of all parties take seriously.
That returns to the point that the hon. Member for North-West Norfolk made about trust. We sometimes need to accept that Ministers have to act in the public interest to the best of their ability, and that they will go to great pains to ensure the right decision. Without that trust and power invested in somebody’s hands, we would not be able to protect the country as we do at the moment.
I realise that these are difficult issues and that sometimes civil liberties and the need to protect the public seem to clash. That is an inevitable consequence of the insecure world in which we now live. If we accept that, we must also accept that in some circumstances, Ministers must be trusted to do the right thing.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
It is easy in debates such as this to patronise from one angle and from another to appear to be underplaying or undervaluing the concerns that people who take a different view have on the issues that we are describing. Having heard some of the contributions from Labour members, it is possible for a reasonable person to comment, “Don’t worry your pretty little heads. We’ve got everything under control and we are doing the best that we can for you. We cannot tell you everything that you need to know, but trust us because we are getting it right. We are doing our best. Our motives are of the purest.” And that may well be the case.
Equally, if one looks at the context of the debate—in the room and more widely—there is plenty of room for suspicion, cynicism and ridicule. Ridicule is one of the most powerful weapons that the Opposition have when dealing with a Government who are sure about themselves and what they do. Whether one has the genius of Kafka or Laurel and Hardy, both types of genius are apt to be applied when one considers this type of legislation and clause 152.
There has been press comment today about data sharing and Government powers to control our lives and the information about us. That is placed in the context of the ridiculous sight of the Secretary of State for Justice, to whom the right hon. Gentleman referred, complaining that he has been the victim or the subject of a Nigerian scam. An incompetent impostor in Lagos tried to pretend that he was the Secretary of State for Justice who had had his wallet stolen in a restaurant in Lagos and asked the readers of the e-mail to please send $3,000 to help him get back home.
That is funny for a number of reasons. It makes the Secretary of State look ridiculous, and Conservative Members do not object to that. Whether he is called the Lord High Chancellor or anything else, he has occasionally allowed himself to look ridiculous. He is made to look even more ridiculous—
Jeremy Wright (Whip, Whips; Rugby and Kenilworth, Conservative)
Will the hon. and learned Gentleman give way?
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
May I continue to demonstrate how ridiculous the Secretary of State is by pointing out that he is the man who, when he was Home Secretary, as the right hon. Gentleman pointed out, set up a taskforce, or some such body, to interdict or to prevent computer hacking and the misuse of private information. I am not sure how far that has taken us, but he is a Secretary of State who is part of a Government responsible for the loss of millions of items of private data stored on our behalf by them.
Jeremy Wright (Whip, Whips; Rugby and Kenilworth, Conservative)
I wonder whether my hon. and learned Friend would care to comment on the Lord Chancellor’s remark that at least it was reassuring that people were not taken in by the scam. Another possible explanation is that nobody wanted him back from Lagos.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
The ridicule piles upon the ridicule. My hon. Friend says that nobody was taken in by the scam, but the Secretary of State’s staff were taken in—not his ministerial staff, because I think it went to his private e-mail account. By virtue of their having replied to the request, it triggered a whole system of—
Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)
May I say that the hon. and learned Gentleman seems to have the genius of Kafka?
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
Let us see whether the Secretary of State really is some form of insect or a real Secretary of State. I get to the church by way of the moon.
If I achieve nothing else this afternoon—
Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)
Given us a good laugh.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
I may have done that, but I possibly have cheered up the Committee. However, I hope that I will also have provoked the Government and their supporters into standing up and justifying clause 152, as currently drafted.
The hon. Member for Cambridge and my hon. Friend the Member for North-West Norfolk have given us a learned dissection of the beast on the slab. We are grateful for that, but it is important that we use all weapons at our disposal to expose the ridiculous nature of the Government and what they are seeking to do—and they are seeking to do it half-blind.
Of the number of press articles written today, some suggest that we are about to move into a period of deep darkness, in which personal liberty is put at risk. However, a number of journalists and commentators have said that that is unlikely. Let us take two examples. One is written by Andrew Gilligan. [Interruption.] Mr. Gale, did you hear the groan from Government Ministers when I mentioned Andrew Gilligan, the man who, I suspect, has been proved to have been right about the Government’s ability to construct facts.
Russell Brown (Dumfries and Galloway, Labour)
A man who once worked for a Back-Bench Member of Parliament and was reported to have been less than competent.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
I thought that the hon. Gentleman was going to say something interesting, but I am delighted to welcome his first contribution to debates on the Bill.
I remind the Committee of what Mr. Gilligan said:
“Britain will never be Nazi Germany. But in our steady march towards a police state, this could be something of a Niemöller moment. Until recently, perhaps even until now, New Labour ministers’ mocking claim that civil liberties were a concern only for the ‘dinner party crowd’ had some truth.”
He then referred to the report mentioned by my hon. Friend the Member for North-West Norfolk, written by Sir David Omand on behalf of the Institute for Public Policy Research. The report, Andrew Gilligan says, makes reference to
“active government proposals for ‘data-mining’, where the private and personal data of everyone in the country—telephone records, emails, shop transactions, our very movements as tracked by number-plate recognition cameras and CCTV—is fed into giant computer banks to be analysed for ‘suspicious’ activity...‘Such sources have always been accessible to traditional law enforcement seeking evidence against a named suspect already justified by reasonable suspicion,’ says Omand. However, ‘application of modern data mining and processing techniques does involve examination of the innocent as well as the suspect to identify patterns of interest for further investigation...Finding out other people’s secrets is going to involve breaking everyday moral rules.’”
That final quotation was also referred to by my hon. Friend. In short, Sir David said that privacy is up for grabs. Mr. Gilligan continued:
“Privacy, in short, if Sir David and his colleagues like the Home Secretary Jacqui Smith have anything to do with it, is over. He even says so (‘modern intelligence access may have to be at the expense of some aspects of privacy’).”
There is plenty to read and plenty to be gained from Mr. Gilligan’s piece. It demonstrates that newspaper commentators write what they think but that they also reflect what their readers think. There is growing concern among the public that the Government, for good measure or for bad, are allowing powers to be taken which erode unnecessarily the right of the individual to conduct himself freely within society.
George Howarth (Knowsley North and Sefton East, Labour)
Since the right hon. Gentleman has prayed in aid Sir David Omand quite extensively, can he share with the Committee what Sir David’s conclusion was?
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
The hon. Gentleman knows the answer to that as well as I do. Let me tell the Committee about another commentator, Mary Riddell, who wrote in The Daily Telegraph today about the subject. [Interruption.] If the right hon. Members for Knowsley, North and Sefton, East and for Cardiff, South and Penarth would like to make their own speeches, we will be happy to listen to them.
Alun Michael (Cardiff South and Penarth, Labour)
The hon. and learned Gentleman’s contribution seems to draw tremendously on media reports rather than on direct comments from people. My right hon. Friend the Member for Knowsley, North and Sefton, East asked him a simple question about Sir David’s conclusions. Does he agree with them? Does he know what they are? Would he like to share with us his summary of them?
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
The important point is not his conclusion. I am sorry that the right hon. Gentleman has not got the point, which is about the analysis of the intrusion into the rights and liberties of the citizen. It may be of no importance and, if I have got it wrong, the right hon. Gentleman will tell me. I want to provoke the Labour party and the Government into defending the clause, but I have yet to hear a good defence. I will continue to provoke them, here or outside, until the Government and their supporters—such as they are—advance rational, cogent and sensible reasons for allowing the Government to garner themselves the powers under the clause.
Mary Riddell, who I referred to a moment ago, said that
“even if we are not heading for dystopia, something strange is happening to law and order.”
If we, as representatives of the public, do not recognise that, we are not doing our job properly. She continued:
“This suggestion was floated on the day that Binyam Mohamed was flown back to Britain”—
the suggestion was from the mouth of Sir Ken Macdonald, the former Director of Public Prosecutions—
“legislators have foolishly pursued tough terror laws when we should be locking up City fraudsters instead.”
She commented:
“Sir Ken’s sensible, if wishful, suggestion also had a wider point: that the ‘liberty-sapping addictions’ of the Home Office are a useless way to tackle terror. Indeed, they may promote not only jihadism but insurgency of all kinds. Already, the unease engendered by a collapsing economy risks being fuelled by political paranoia. Secrecy and suppression are enmeshed with the unrest seeping on to the streets.”
Those are the views of rational people, who are listening to what is going on outside in the street. If we do not listen ourselves then, as night follows day, we will pass clauses such as this one, to the disbenefit of our constituents, and contribute to the general undermining of confidence in criminal justice.
Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)
My hon. and learned Friend has touched on a vital point. The security services and the police already have ample powers to look at the data of suspects. The clause will lead to data mining of private data and of the details of many innocent people, which will lead to the breakdown of trust. It will also hinder the war against terror, rather than the other way around.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
I agree entirely. The sooner we can get that into the collective mind of the Government, the sooner we may get a better clause. Mary Riddell adds:
“As the former Whitehall security chief, Sir David Omand, implies, the security services will soon be privy to our every detail, from our dwindling savings to our taste in shower gel. Most galling is the imbalance of data-sharing, under which ministers know everything about us while we know little about them. True, we may discover an MP’s outlay on Philippe Starck lemon-squeezers, or whether he or she (legitimately, of course) declares a top bunk in a youth hostel as a primary residence.
On the other hand, we can’t know what was in the Iraq war Cabinet minutes, because Jack Straw has defied two rulings that they should be released. That veto is as rash as it is disgraceful. Not only does it suggest an illiberal government—an impression borne out by the Justice Secretary’s Coroners and Justice Bill, which promotes secret military inquests and, in Clause 152, a sweeping sanction for data swapping—it also gives the appearance of a government with shameful secrets to hide.”—[Interruption.]
I hear a lot of squawking and squeaking from Labour Benches. If the Government do not realise that that is what people think and that perceptions are as important as facts, they are walking themselves up a blind alley to their detriment. We have now reached the stage at which the Government are not believed even on those rare occasions when they tell the truth. They must come to terms with the matter.
Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)
While we all like to have our morning newspapers read to us, instead of reading them ourselves, how does the extent to which the hon. and learned Member for Harborough is doing it, including reading out passages—admittedly not written by him, but by esteemed members of the journalistic profession—that he knows to be inaccurate help the Committee to develop his argument?
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
I most certainly do not know the passages to be inaccurate.
Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)
Secret military inquests? There are none.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
If the Minister is to base her reputation on the introduction by Mary Riddell of the word “military” to describe secret inquests, she has completely lost all sense of proportion. When we dealt with clause 11—[Interruption.]
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
I am happy to reply to questions from Labour Members. I would be even more delighted to hear them justify clause 152. I have yet to hear them do so, but I am sure that such an opportunity will arise—[Interruption.]
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
Having demonstrated with some degree of fairness and accuracy the dangerous position into which the Government are leading us, let me briefly pick out one or two of the egregious provisions under clause 152, which ought to worry Labour Members but apparently do not. Proposed new section 50A(3) states:
“For the purposes of this Part a person shares information if the person—
(a) discloses the information by transmission, dissemination or otherwise making it available, or
(b) consults or uses the information for a purpose other than the purpose for which the information was obtained.”
Proposed new section 50A(4) states:
“A designated authority”—
shorthand for a Minister of one sort or another—
“may make an information-sharing order only if it is entitled to make the order by virtue of section 50C and it is satisfied—
(a) that the sharing of information enabled by the order is necessary to secure a relevant policy objective”.
My hon. Friend the Member for Rugby and Kenilworth has already drawn attention to the relevant part in the explanatory notes, but that is drawn from the interpretation measure under the Bill of “relevant policy objective”—proposed new section 50F, on page 105, which is not even halfway through it.
Proposed new section 50F(1) states that a relevant policy objective means,
“in the case of an information-sharing order made by the Scottish Ministers, a policy objective which relates to—
(i) matters within the legislative competence of the Scottish Parliament”,
and so it goes on for the Welsh, the Northern Irish or British sphere. A relevant policy objective is as Lewis Carroll might have described it.
Under proposed new section 50A(4)(b), a designated authority must be satisfied
“that the effect of the provision made by the order is proportionate to that policy objective”.
If we do not know what that is until the Minister condescends to tell us and self-certifies it, how can we reach a rational conclusion now or later about the proportionality of the order?
Proposed new section 50A(4)(c) requires that
“the provision made by the order strikes a fair balance between the public interest and the interests of any person affected by it.”
Again, we are talking about wholly undefined concepts. We cannot work out the balance or the relationship between two concepts about which we are told nothing.
Proposed new section 50B on page 101 is entitled,
“Information-sharing orders: supplementary provision”.
It states:
“An information-sharing order may—
(a) confer powers on the person in respect of whom it is made;
(b) remove or modify any prohibition or restriction imposed...on the sharing of the information by that person or on further on onward disclosure of the information;
(c) confer powers on any person to enable further or onward disclosure of the information;
(d) prohibit or restrict further or onward disclosure of the information;
(e) impose conditions on the sharing of information;
(f) provide for a person to exercise a discretion in dealing with any matter;
(g) enable information to be shared by, or disclosed to, the designated authority;”
Finally, and this really is breathtaking, it may “modify any enactment”. That means that it may modify any primary or secondary legislation.
This is a modification to the law of the land by ministerial fiat, not by the House of Commons and the other place. It does not stop there, as I mentioned to the hon. Member for Cambridge. Subsection (2) states:
“An information-sharing order may provide for the creation of offences triable either way”
either in a magistrates court or the Crown court. Those offences are punishable
“on conviction on indictment, by imprisonment for a term not exceeding the specified period or to a fine or to both”.
At least in the Bill the Government condescend to tell us what the specified period of imprisonment means. In the case of a summary conviction it is 12 months, or six months in Northern Ireland—I do not know what they have done to be favoured by a lesser period of imprisonment. In the case of conviction on indictment, it is two years. You could go to prison for two years, Mr. Gale, for a criminal offence that has so far been left undescribed and was created by a power that is ill-defined or undefined.
The Government complain that we are making far too much of clause 152. It is little wonder that the public are concerned, as are people like Mary Riddell and Andrew Gilligan and plenty of others. It is little wonder that my hon. Friends and I, whether we win or not, will stand up and be counted. We will vote with our words and exercise our rights as MPs to seek to remove this subsection from the Bill.
On Saturday, in London and across the country, an event called the convention on modern liberty is being held. It will represent the most concerted coming together yet of people who are concerned about the destruction of our democratic way of life. I shall attend that event and contribute to it, and I hope that I will see members of the Labour party there too to speak out against this and many other similarly egregious provisions that the Government see fit to impose on the people of this country.
David Kidney (Stafford, Labour)
When Parliament passed the Data Protection Act 1998, it was contemplated that data might be shared after the Act was passed. There are exemptions and exceptions in the Act to permit data sharing. The House of Commons research paper for the Bill, number 09/06, says that few of the exemptions and exceptions are blanket in nature. That suggests that some of them are blanket in nature. Exceptions are not something new in terms of allowing data sharing. However, until now, when Parliament has felt the desire to allow data sharing, it has had to pass specific permission through an Act of Parliament. That same research paper talks about such provisions in the Digital Switchover (Disclosure of Information) Act 2007, the Serious Crime Act 2007, last year’s Education and Skills Bill and the Pensions Bill.
I was at the annual meeting of the parliamentary warm homes group at the end of last year, where members of energy companies said to me, “If only we could have access to information on who gets pension credit, we could tell them that they could have energy efficiency measures done to their homes completely free of charge. It would certainly reduce their Bills and may actually save their lives.” They asked me whether I thought that that was a desirable policy objective, and I must admit that it is a tempting aim to want to save people’s lives and cut elderly people’s fuel bills. Against that, do people in receipt of pension credit want, without their permission, other people to know that they are in receipt of it? That one example shows us how difficult the issue is.
I take exception to some of the comments that have just been made and to some of the newspaper reports about the provision, because of the complete absence of the Information Commissioner from the debate, when his report started the entire enterprise. Recommendation 8(a) of his report was for
“a new statutory fast-track procedure”
to allow data sharing. “Primary legislation”—it has turned out to be the Bill—should grant
“the Secretary of State...a power by Order...to remove or modify any legal barrier to data sharing...or creating a new power to share information where that power is currently absent.”
That is an eye-opening recommendation, but it is the recommendation of an office that the official Opposition find so trustworthy that he alone among the organisations of this country should have the power, as we heard this morning, to enter premises without a warrant, and yet so trustworthy that in the afternoon his opinion is completely disregarded and trashed. There should be some balance in the debate. The Information Commissioner’s report and recommendations wrestled with serious issues such as whether we can save the lives of elderly pensioners at Christmas time.
The commissioner went too far in his recommendations. The Government have been given an inch and taken a mile—clause 152 is unsatisfactory. I am happy to be on the record saying that. However, the intention behind the clause is entirely honourable and probably desirable. I would like there to be a section 152 in the final Act after Royal Assent, but not in this form.
George Howarth (Knowsley North and Sefton East, Labour)
I want to identify with the point of my hon. Friend. I do so with a particular apology to the Committee: having taken part in the debate, I have a meeting at the Department for Business, Enterprise and Regulatory Reform with a local firm shortly, so I may not be able to stay for the entire debate. However, I make it clear that my hon. Friend’s last point is a good one.
David Kidney (Stafford, Labour)
Although I have not had a huge number of representations from constituents, they have expressed concerns about the clause as drafted—two in total, although one mentioned the British Computer Society, which apparently also opposes the clause in its present form. I assume that the society has a reasonable number of members whom it is accurately representing in its objections to the present provision.
When I became a member of the Committee, it crossed my mind that I would want to table amendments to the clause. I e-mailed the Information Commissioner asking for a briefing to enable me to understand the issues and perhaps identify what the right amendments would be. I do not criticise his reply, but it was that, as I was a Member, I would hear his evidence in Committee and get his memorandum like everyone else. I heard his evidence and asked him whether he expected the Government’s provision to enable a Minister to repeal by order the Data Protection Act or the Human Rights Act. He said no, he had not appreciated that that might be the consequence. I listened to his evidence and read his memorandum, but together they did not quite give me the feel for what the amendments should do to make some sense of the clause.
In my exchange with the hon. Member for Cambridge, I asked if he thought his amendments quite did it, and he said that he did not think that they did. I have come to the conclusion that there will have to be nothing less than a rewrite. When completed, the clause will have to have a less complex definition of data sharing, a more agreed basis for the weighing of different policy objectives—with the example I gave about pension credit, one can see how two desirable things come into conflict with each other—and something about how far the order-making power can go in repealing primary legislation. Perhaps the Information Commissioner did not appreciate what he was unleashing when he made that suggestion in his report.
I hope that the Minister will say that she understands the objections, that she wants a provision such as this in the final Act, but that she agrees it should be in a different form.
Alun Michael (Cardiff South and Penarth, Labour)
My hon. Friend makes a valid point, and I agree with a lot of what he is saying. However, he referred, as others have done, to the capacity for repealing primary legislation, as if somehow whole swathes of legislation could be removed as a result of the clause. My reading of the intention is that it would merely remove obstacles to data sharing where it is necessary to do so. Like him, I think that there is probably a need for some redrafting, but is it not right that there should be some capacity for removing unintended obstacles that may occur in legislation from time to time, as long as it is done in a manner consistent with data sharing principles?
David Kidney (Stafford, Labour)
This is my final point. My right hon. Friend is absolutely right. Certainly, the Information Commissioner thought that there might be obstructions to data sharing at the margins of Acts of Parliament that were not contemplated at the time, and that it would be neat and tidy to put them out of the way now that we see that that is desirable. He did not anticipate that an entire Act of Parliament such as the Data Protection Act 1998 itself could be repealed by an order. Does that mean that on a legal challenge, if the Government ever tried to do such a thing, the court could say, adopting the purposive interpretation of the Act, “I don’t think Parliament intended the Minister to have that power”? Maybe. Of course now, as a result of Pepper v. Hart, the judge could read the contributions to our debate and say, “I’m sure that’s not what was intended,” but it would be better if the Bill imposed limitations to make it clear that that could not happen.
Tim Boswell (Daventry, Conservative)
I apologise to the Committee for my absence this morning, which, sadly, resulted in my missing some useful prior exchanges on this matter and related issues. However, we occasionally have clashes, as was acknowledged by the right hon. Member for Knowsley, North and Sefton, East, who is now leaving the Committee. I do not take an absolutist view. I think that there are, properly, arguments on both sides of the issue. I have listened to them with some interest.
I start by declaring an interest, which I share with the right hon. Member for Cardiff, South and Penarth. I am a member of the Parliamentary Information Technology Committee, PITCOM, and now a director of EURIM. I hasten to say—I exempt the right hon. Gentleman from this—that I am not at the high-tech end of the spectrum. I am at the end that concerns itself with the application of public policy. When one considers the measures in the round, one finds areas of concern on both sides, which is why I say that the issue is one of balance.
As the right hon. Member for Cardiff, South and Penarth said powerfully to the Committee, there may well be national security implications. In some interesting cases, data mining may be appropriate. I remember reading a fascinating article that started with what one might call a conventional appraisal. If someone is accessing jihadist material and information about self-made explosives on the internet, they might well be of some interest to the security services. On the other hand, one can launder such interest by putting oneself down for an awful lot of pornographic websites, which somehow throws people off the scent. I say that because I have some idea of the complexity.
The hon. Member for Stafford, reasonable as ever, made a point about a cause that I share with him, which is warm homes. It would be nice if one could just give the various fuel charities access to the pension credit database so that they could give money to pensioners at Christmas. At that point, one must realise that it is not always necessary to break the principles of the Data Protection Act 1998 in order to assess them.
My hon. Friend the Member for Rugby and Kenilworth will be aware of a controversy involving constituents of both his and mine and relating to admissions to schools in his constituency. I have been approached on that case by a number of parents. As they came from different sources, I have not thought it proper to say, “Get in touch with Mrs. X.” I have thought—I am sure that Members have different practices—that the right way to do it is to say, “If you wish to get in touch with a number of people who are organising parents, I will supply that information if you like.” In other words, the direct approach—“Who’s on pension credit?” or “Who has said they’re worried about the Rugby schools’ admission policy?”—is not immediately transferable but passes through the membrane of consent. That is a first and prior defence.
Having said that, consent is certainly not a sufficient solution to our problems. The major area of concern, and why we should condition the clause, is this. People are not concerned about criminality—we do not expect the criminal to give consent for information to be shared—but, on the other hand, in our day-to-day lives, we implicitly give consent for our information to be shared in ways that are sometimes a little sinister or even eerie.
I have two cases in mind. Like many people, I use the online system for renewing my road tax, which works well. It suddenly occurred to me that the tax people knew with which insurers I had concluded a contract. I also did not know that I had given any consent to the Government to know that. No doubt it was somewhere in the small print.
The second case is similar. Because of a geographic anomaly—I live in a different county from my postcode—for years, my wife had not been able to get a protocol for online internet supermarket shopping. When she eventually broke through, the supermarket said, “Don’t worry, we’ll fill in your first week’s order because we know exactly what you have”. They knew the exact pattern of her shopping because, like many of us, she holds a loyalty card from the supermarket. Nothing of that is improper, and it does not directly involve the Government, but it is the kind of thing that makes us sit up and worry.
The important principle of consent must be balanced against the principle of fighting crime and terrorism, and other major Government policies—I agree with what was said on how wide those principles have been taken. On the other hand, there is the feeling of public unease and distrust. That is not simply about what data have been lost, but, overall, that the general public may be losing control of the situation.
Having mentioned the right hon. Members for Knowsley, North and Sefton, East, and for Cardiff, South and Penarth, who are on the Government side, I should like to mention my colleagues on the Opposition Front Bench. I was wondering whether it was possible to call my hon. Friend the Member for North-West Norfolk a Dave Spart-type radical, let alone my hon. and learned Friend the Member for Harborough. I did not detect Dave Spart-style radicalism in anything that they said, only in the passion with which they expressed their reservations, which I share.
I do not wish to detain the Committee as many of the issues have been rehearsed, but I would like to make two or three points. The first is on the question of discretion, which appears on page 101 of the Bill, which uses the words,
“provide for a person to exercise a discretion when dealing with any other matter”.
I am anxious not to trespass on your indulgence, Mr. Gale, by talking about another piece of legislation—my Exercise of Reasonable Discretion Bill will shortly have its Second Reading—which the hon. Member for Stafford, who I praised earlier, has sponsored. The purpose of that Bill is to allow Ministers to use their common sense. The difficulty is when the conditioning under which that is done—the fact that Acts can be set aside or whatever—is so fundamental that it might be considered a power too far. I will be interested to hear any arguments that Ministers make against that Bill on Second Reading because they could relate to this issue.
From what I have seen of it, historically, one of the protections for the citizen has been what I might loosely call the inefficiency of the structure of government. Government has been organised in silos, and substantially remains that way. Information does not readily and totally flow across departmental boundaries, nor automatically between Government and public authorities such as local authorities. Although that is irritating, and has given rise to some of the problems in both crime fighting and wider areas of public policy that Government Members have talked about, it has stopped the whole thing getting out of control.
As technology changes and the information can be transferred quickly and electronically and perhaps with insufficient safeguards under the clause and its amendments, so it opens a much wider access to information. Something that I have banged on about twice before in this Committee, but I will say again, is that I am concerned about what the private sector will do when information is passed. Should it be conditioned to enclose only those fields of information that are appropriate?
There is a danger, at the moment, that if it is agreed between Department A and Department B that this information should be passed and that there should be an information sharing order which overrides legislation, at that point they get the crown jewels, the whole lot, not the relevant portion of the file.
Alun Michael (Cardiff South and Penarth, Labour)
The hon. Gentleman referred earlier to membership of PITCOM and other parliamentary bodies. I am not sure that that is a declaration of appropriate interest, although I agree that they exist. Does he agree that there is information that sometimes ought to be shared across public bodies and does not flow because of the difficulties of getting that information across? Does he also agree that there should be a capacity for requiring those bodies to share appropriate information and to do so in accordance with data sharing principles?
Tim Boswell (Daventry, Conservative)
I would need to look at the small print, but the way the hon. Gentleman expressed it—as reasonably as ever—is acceptable. However, he has conditioned it within the data sharing principles and not as subverting those principles. One should not subvert primary legislation unless there is a specific reason for doing so. I am not an absolutist; there are arguments for instances where we should share more information, and that is what the Thomas and Walport review was about. We need to find sensible, practical conditions, which are not completely set by the clause.
I have suggested one condition that can be dealt with in a data-sharing order. There should be field protection—not necessarily the whole file passing, but only those relevant portions. The second point that concerns me is passing on information. Again, the Bill provides for the sharing of information, including the private sector, and its being passed on to third parties. There is no doubt that when people join the public service and become civil servants they sign the Official Secrets Act and are conditioned. However, those protections tend to become attenuated outside the public sector, let alone outside the jurisdiction and overseas.
My third point—I am not sure whether it has already been made and forgive me if it has—is the question of any financial nexus involved. I see no reference to finance—I may have missed it—and whether a designated authority might, in pursuit of its policies, charge for information and if so, on what basis. Would it be a cost recovery charge, or would there be an attempt to make a commercial profit? It could be argued that, if the public expenditure survey had been particularly tight and the authority was a bit short of money, securing a relevant policy objective might include raking in some value. If such commercial purposes were allowed, that would put a rather different construction on the motives for transferring the information.
We all share some disquiet about the specific drafting, some understanding that there is probably a need for change in this area, and some wish to produce a less enabling provision that is better conditioned as to the type of information, occasion and safeguards. We will all express that to different effect and we look forward to the Minister’s response.
This is not an issue affecting only the United Kingdom. A number of Committee members are involved in the Parliamentary Assembly of the Council of Europe. I have started putting toes into the water as to whether we might try to press for a European-wide convention on data sharing. We would want it to be pretty wide, like most Council conventions.
My motive in putting it forward is that I have been reading articles on the French concern about the so-called EDVIGE system, which concern what information can be kept together. In virtually all Western countries where liberties are regarded as important, one finds that these issues are around. In the end, they came back to my wife’s feeling of unease about the supermarket knowing what she spent her money on. She understands why that happens, and she certainly understands that she has implied consent for it. However, if we feel that people are taking over from us, we lose all faith.
The convenience and exigencies of Government, and even the real issues about terrorism, do not by themselves justify selling civil liberties lightly. If we have to do it—it is a sad analogy, but I will use it—I would much rather that we gave ground like a first world war general, fighting for every inch, making every bit of the case. We should not have the general enabling powers in clause 152, which might be used appropriately in some cases by present and future Ministers, but, sadly, we can be fairly certain that in some cases they will not.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I have a long speech in response to this passionate debate, but I am minded not to refer too much to it. I intended to come on to the detail of the amendments and to explain the background to the provision. I might touch on that background, because there is common ground as to the fact that some data sharing needs to be done. It can be done and has a positive aspect in improving not only the efficiency of public services but enhancing the quality of them for the people whom we represent.
Before I do that, let me make it absolutely clear, on the record, that I acknowledge that the clause as drafted has the potential to be far wider than it is intended to be. In explaining the background, I want to establish the principles on which I hope that we agree, and then, perhaps in asking the hon. Gentlemen not to press their amendments, I will put a proposal to them as to how we might move forward.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
The Minister’s comments are extremely generous and most welcome. Just so that we can understand, as Government outsiders, the mechanics by which a Bill arrives at Second Reading in this condition, and bearing in mind what she has just said, when did she first come to the conclusion that she has just announced?
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I would love to say to the hon. Member for North-West Norfolk that it was on listening to his cogent comments that I came to that conclusion. I have considered the matter over the past few weeks, on Second Reading and in discussion with my fellow Minister. We feel that, although we are debating the matter now, there is more work to be done. The work is ongoing, and we are in discussions with the Information Commissioner. The Thomas and Walport report is important, and much of this part of the Bill is based on the Information Commissioner’s recommendations. We will continue to have discussions with the commissioner, but I want to have further positive and constructive discussions with members of the Committee.
Richard Thomas and Sir Mark Walport’s data-sharing review recommended that where there is a genuine case for removing or modifying an existing legal barrier to information-sharing, a new statutory fast-track procedure should be created. They recognised that the default position in the public sector has been to legislate, creating large numbers of specific legal gateways for sharing personal data, and that the legislation itself does not inhibit such sharing in the majority of cases.
I want to turn to the comments made by the hon. Member for Cambridge, with which I agree in many respects. He asked how others, including those elsewhere or outside this Committee, have the view that sharing data is unprecedented, that it is not part of what happens at the moment, and that the information-sharing orders are something more than is currently available. Under the second data protection principle in the Data Protection Act 1998, data controllers, as a matter of course, are able to further process the data that they hold for any purpose that they wish, providing that the further purpose is not incompatible with the original purpose and other requirements under data protection law, so there is already some data sharing going on. In saying that, I hope that we can establish that, in principle, there is nothing wrong with sharing data in a properly constructed fashion.
Tim Boswell (Daventry, Conservative)
Just for the record, will the Minister note that certainly in my time as a Minister in the Department for Education, I was aware of a limited data-sharing exercise that was available at that time, which was in relation to dealing with criminality and fraud? So it is by no means unprecedented, and it is no part of our arguments to suggest that it is.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I appreciate the hon. Gentleman’s comments. Richard Thomas and Mark Walport felt that there were occasions where perfectly beneficial and harmless opportunities for sharing data were prohibited by the law, and we fully support their comments.
David Howarth (Cambridge, Liberal Democrat)
There are two separate things here. The first is whether there is a need for data to be shared, literally with a different organisation or a different part of the same organisation beyond the existing authorisation. I thought that I made it clear before the break that there are genuine problems and inconveniences in the present system.
The second, separate point concerns using data for a purpose different from the original one for which they were collected. As I understand it, the second data protection principle states that data may only be obtained for a lawful purpose and may not be used for any other purposes apart from the ones that were authorised. That is the heart of the problem about the breadth of the clause, which defines data sharing, not as sharing, but as using data for a different purpose, which is quite a different problem.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
That is perhaps the one place where the hon. Gentleman and I will have to part company. I will give two examples, the first of which is from the Local Government Association. It responded to the data-sharing review by saying:
“a vulnerable elderly person can benefit where the council’s adult social care service shares information with the local health service; a young person’s preparation for employment may be facilitated if their school liaises with the local Learning and Skills Council to produce a rounded profile of attainment and training requirements...Government and citizen alike expect effective liaison of this sort to happen.”
The second example arose when I was recently discussing the clause with a local councillor—not from my own borough, but elsewhere in London. He said that his council had an action plan to get the levels of violent crime on a particular estate down radically. It was entirely underpinned by effective partnerships between agencies—the council, the police, youth workers and a variety of others. That obviously required effective data sharing. The councillor said:
“The inability to share and access relevant information and intelligence can only hinder the assessment process and the ability to address the needs of the young person at risk”.
The amendment would narrow the situation too much. We need to find another way to ensure that data can be shared properly and appropriately, even if they were originally gathered for a different purpose from the one for which they are being shared.
I want to put on record that the clause is not meant to allow indiscriminate information sharing. An order-making power will permit Ministers in specific circumstances to introduce specific proposals, subject to robust scrutiny by both the Information Commissioner and Parliament.
To respond to my right hon. Friend the Member for Knowsley, North and Sefton, East, one reason why the Bill is drafted so broadly is that it was felt to be difficult to predict every single instance in which an information-sharing order would be necessary. That said, the individual order could be drawn tightly, setting out the classes of information to be shared, who could share them and for what purposes.
The hon. Member for Daventry suggested that the way around the issue is to seek consent. In many instances, that is certainly true, but some—usually the poorest and most vulnerable in society—might not be in a position to provide new consent each time information needs to be shared. For example, if a husband whose wife died had to sort out all the different forms, it might be simpler to allow the authority to do it for him.
Tim Boswell (Daventry, Conservative)
I would like to record my assent to the Minister’s point. There will be some cases where it is sensible. What I do not want is for that practice to override generally the principle of consent, where it can be obtained.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
Amendments 54 and 56 would mean that an order could be made only in relation to an existing Government policy and could not deviate from previously announced policy, requiring a Government policy to have been clearly signalled or referred to in speeches or other remarks made during the passage of a Bill through Parliament, which is entirely unrealistic. The Government make announcements and speeches on policy issues using a variety of parliamentary processes. Policy intentions are signalled by consultations, White Papers and other publications. Parliament now has and will retain the opportunity to scrutinise and comment on Government policy, and nothing suggested in the measures would take away from that.
Jennifer Willott (Cardiff Central, Liberal Democrat)
On policy objectives, has the Minister considered the suggestion made by Richard Thomas in his evidence to us? Rather than just having a broad brush covering any policy objective, he suggested, highlighting specific areas that he flagged up, including law enforcement, the improvement of public services and research and statistics. That would be much more tightly drawn than the current wording.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I can see the merits of what Richard Thomas said, but that proposal could be too restrictive. There may be instances in which that list is not comprehensive enough, and I do not think that he mentioned any mechanism to allow additions to the list. I want to reflect on the provision and see whether it could be better defined, but leaving it to the Information Commissioner to determine such things, as in the amendments tabled by the hon. Lady and the hon. Member for Cambridge, is not appropriate. It is appropriate for Ministers to determine policy and for Parliament to determine whether that policy is suitable. Richard Thomas and Mark Walport certainly wanted to remove or modify the existing legal barriers that prevent some important data sharing from taking place.
It is clearly nonsense to think of striking out the Data Protection Act or the Human Rights Act, and the clause must be modified so as to ensure that that does not happen. Nevertheless, as my hon. Friends have said, this is about sharing information and my hon. Friend the Member for Stafford summed up how we should be taking the clause forward more succinctly than I have done.
It is important that we recognise that the public have a right to high-quality public services, which is not always met by public institutions. If we are to deliver those services, we need to share personal information in a secure and appropriate fashion. We can do that only if we have the mechanisms to do so within the Bill. In that way, we will improve opportunities for the most disadvantaged people, provide more customer-focused public services and reduce burdens on businesses. We must strengthen the protection of personal data and restore public confidence in its security. Risks are always attached to any form of information sharing, and we do not underestimate that, but that should not blind us to the potential benefits.
I would like to offer Opposition Members the opportunity to sit down outside the Committee, go through the clause again and look at the general principles that we agree on about where data sharing could be a useful tool in improving public services. Let us see whether we can come up with a more streamlined version that takes into account the fact that Parliament has a role in scrutinising the decisions of Ministers and that in his report the Information Commissioner sees the benefit of removing the current legal barriers. As a result, we will give the people whom we represent better public services.
Jeremy Wright (Whip, Whips; Rugby and Kenilworth, Conservative)
I want be clear about what the Minister is suggesting that the Committee does now procedurally. Will she invite her colleagues to vote for the clause to stand part, given that we both agree that it is flawed, or does she suggest that the Government withdraw the clause at this point?
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I am suggesting that at this stage, colleagues on both sides of the Committee agree that the clause stand part of the Bill. I will then be prepared to sit down and discuss it in further detail. Discussions with the Information Commissioner are taking place, and I will be meeting people at the British Medical Association next week to discuss the issues of medical records and so on.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
The Minister has been very generous both in her remarks just now and when dealing with other provisions in the Bill, particularly in relation to clause 11. I get the impression that she is not entirely confident that the Bill as it currently stands is as it should be. It might be that it has been drawn together from a number of different departments within her Ministry. If there are any other bits of the Bill that she is not entirely satisfied with, will she let us know, so that when we enter into the discussions that she has invited us to, we can have an agenda of things that the Government have put into the Bill that they would like to see taken out or amended? In that way, we will not waste the time of Mr. Gale, Mr. Cook and Officers of the House during the later stages of the Committee.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I have gone on the record on more than one occasion saying that I have never, during my 17 or so years in Parliament—I suspect that this is also true historically—seen a Bill that began and ended in the same form. All Bills, wherever they start from, end up being amended in some way. That is the purpose of Committee and other parts of the parliamentary process.
I have made a constructive suggestion to the Committee, which I hope is taken in good faith. There are already discussions with other organisations about this part of the Bill, and I am happy to continue those discussions with Committee members.
David Howarth (Cambridge, Liberal Democrat)
In view of the Minister’s generosity about renegotiating the content of the clause, I shall not go through the debate in any great detail answering the points raised.
It has been a wide-ranging debate, including questions such as, “What were Sir David Omand’s conclusions in his Institute for Public Policy Research paper?” If hon. Members want to come and talk to him about that later, they are welcome, although I should mention that they are suspiciously like the remarks made by the right hon. Member for Knowsley, North and Sefton, East. I do not want to go through a competition with Conservative Members as to who is the greater friend of liberty, except to say that those of us who have been in Liberal politics all our lives are glad to welcome temporary allies from time to time, depending on which of the other two parties is in government or opposition.
My overall conclusion is similar to that of the hon. Member for Stafford. We have a small, modest problem that requires a small, modest solution. At present, we have a modest problem that is being dealt with by a massively over-broad clause. I do not want to go through the individual details, but will dwell on the one point on which we still disagree—I am not sure whether we disagree because we do not understand one another or because we really disagree. However, I want to have another go at explaining why it is that the problems of sharing data and of using it for different purposes are very different, which is why my amendment 52 is so important.
Data can be moved to different organisations, if they are to be used for the same purpose as in the first organisation. That is a different problem from completely changing what the information is used for, whether in that organisation or a different one. A fanciful but hopefully clear example might involve people writing to their local council objecting to a particular planning application. The council collates the objectors for the purpose of writing a report for the council committee. Later, however, the same council uses that list of people for a different purpose, such as trying to persuade them to take a different view on an entirely different matter, or as a list of people to investigate for antisocial behaviour.
When faced with that sort of problem, the fundamental issue is consent. If we give someone information for one purpose, but they want to use it for a different purpose, they should come and ask whether they are allowed to use the information for a different purpose. That relates to the issue with club cards and so on, which is a similar problem. One of the worries that a lot of us who do not tend to use club cards have is that we are not too sure about the purpose to which we are consenting.
Tim Boswell (Daventry, Conservative)
Following that argument, will the hon. Gentleman concede that there may be a problem in defining the purpose for which the original legislation was introduced? Legislation may simply include a provision that something should be collected without having an essay on the purposes for which it should be collected or even for which it should be used.
David Howarth (Cambridge, Liberal Democrat)
As a matter of parliamentary scrutiny, it is up to us during the passage of such legislation to ask the Government to make it absolutely clear what the purpose is.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
To use an example with which the hon. Gentleman might be more familiar than visiting supermarkets, I draw attention to the discovery process within civil litigation. Parties to civil litigation are required to exchange documents at certain stages in the litigation on the understanding that such a process is to be used only for the purposes of litigation. The Government will understand that only too well, because the Leader of the House in her previous existence as a lawyer was held in contempt for doing the wrong thing.
David Howarth (Cambridge, Liberal Democrat)
I am not too sure whether the hon. and learned Gentleman is right that, at this stage in my life, I am more familiar with that example than that of supermarkets—I fear that I am more familiar with supermarkets—but he has cited a good example. We ought to be clear that the problems of sharing and of different purposes are so different that, when the Government rewrite the clause, they should separate them entirely. In fact, two completely different clauses might be needed.
David Howarth (Cambridge, Liberal Democrat)
Or, as the hon. and learned Gentleman has said, a different Bill might be needed.
Unless the Government understand the worries about using information for different purposes, they will not know why Opposition members object to the process. It comes down fundamentally to violation of the principle of consent. Even though I am grateful for the concessions that the Minister has made, I am willing to take up her offer to talk about what might replace the clause. I am happy to ask the Committee for consent to withdraw amendment 49 and not to vote on other amendments, but I want to press amendment 52 to a Division. I beg to ask leave to withdraw the amendment.
Alun Michael (Cardiff South and Penarth, Labour)
I beg to move amendment 155, in clause 152, page 100, line 8, at end insert—
‘(1A) In carrying out the requirements of an information-sharing order, a designated authority must have regard to the code of practice issued in pursuance of section 52A.’.
Roger Gale (North Thanet, Conservative)
With this it will be convenient to discuss the following: amendment 358, in clause 152, page 100, line 35, at end insert ‘and
(d) that any data sharing complies with the requirements of the data-sharing code.’.
Amendment 154, in clause 153, page 107, line 8, after ‘Act,’, insert—
‘(aa) encouragement to data controllers to realise the importance of balancing all appropriate considerations, including all aspects of the public interest and the protection of personal information, in reaching a judgement about what data to share, how and when to do so, and what conditions to apply to shared data,’.
Alun Michael (Cardiff South and Penarth, Labour)
I am grateful for the opportunity to return to some specifics that were touched on previously. I shall try not to repeat the matters that have already been covered. I welcome the way in which the Minister responded to the earlier debate. To accept that there are problems and to undertake to deal with them is a sign of maturity, and it is worthy of support and praise. I want to take up her acceptance that there are problems with the drafting of this part of the Bill and to make a couple of suggestions that I hope she will take into account when she redrafts the provisions.
I support the capacity of Ministers to require data to be shared and their ability to be able to remove obstacles to the sharing of information, as long as they require the public bodies to do so in ways that are consistent with data management principles. The idea that the intention of the order is to subvert data protection principles is the real problem. If it is to require the sharing of data in accordance with data-sharing principles and to remove some perceived obstacles or to clarify the situation for Departments or Government organisations, that seems entirely reasonable. However, I do not believe that it is the intention of Ministers to subvert the principles, so let us make that explicit in the Bill.
Amendment 155 would add the words
“In carrying out the requirements of an information-sharing order, a designated authority must have regard to the code of practice issued in pursuance of section 52A”.
In considering that, my hon. Friend might even want to strengthen it to “follow the requirements of” the code of practice—one Opposition amendment uses the words “comply with”.
The important thing is to make it clear that an order to share data does not mean that data sharing can be done willy-nilly or that there is a complete removal of principles. That should be explicit. In my experience, there is nothing that requires things to be more explicitly stated in a Bill than data protection, even things that are already the case, as in the example that I gave earlier of making it clear to local authorities and the police that they can share information for the purpose of preventing and reducing crime. I hope that the Minister will say that it is the intention not for any order to override the central and basic principles of data management, but to require sharing of that data in accordance with data-sharing principles.
The second amendment that I have tabled is also about trying to get the message across that there is no nice, comfortable place where either everything or nothing is shared, although it would be much easier for people if that were the case. Sadly, on occasion, lawyers and data protection officers have retreated into that citadel instead of accepting that judgments must be made.
My second amendment would insert into the requirements for what should be in the guidance
“encouragement to data controllers to realise the importance of balancing all appropriate considerations, including all aspects of the public interest and the protection of personal information, in reaching a judgement about what data to share, how and when to do so, and what conditions to apply to shared data”. My hon. Friend might well respond by saying, “Well, that’s common sense and good practice.” I agree, but I do not think that there is any harm in spelling it out that the order requirements would not do away with the requirements to apply those principles and common sense.
In accordance with the comments that you made earlier, Mr. Gale, I want to mention a couple of points on clause stand part in order to get them out of the way and, hopefully, to hear a response from the Minister. There was an exchange between the Minister and the hon. Member for Cambridge about sharing personal data; indeed, the hon. Member for Cambridge said that he wanted to press the point to a vote. I honestly do not think that he has got it right. I do not think that he understands the overlap between personal data and the sort of information that is needed, that people expect to be shared and that is important for the development of public policy, particularly at the very local level.
I do not know whether the hon. Member for Cambridge shares my experience, but constituents, in speaking to me about a subject, say, “I don’t know why they don’t know that piece of information,”—whether it is age, telephone number, address or anything else—“I’ve given it to the council already,” clearly expecting information to be used for purposes other than the one for which it was originally given. It is important to have clarity about how far we go beyond the specific purpose for which a piece of information is being provided by the individual, in order to be clear about how it might be shared.
David Howarth (Cambridge, Liberal Democrat)
In my previous existence as a council leader, I came across exactly that problem. Surely the solution is to ask people for their consent in advance when they give the information, not just for it to happen randomly later.
Alun Michael (Cardiff South and Penarth, Labour)
I agree entirely that consent should not be given randomly, but it is sometimes difficult to deal with things retrospectively. Lots of information is already in the possession of, for instance, local authorities. A local authority might develop a new policy to help the elderly or the partially sighted, who are just the sort of people who often do not make applications. We are going through the analogue TV switch-off, which is a tremendous opportunity, as we discussed in the Chamber on Tuesday, because audio description will be automatically available to people with a digital box. If that sort of information were not shared to improve people’s quality of life, they would find it difficult to understand why not.
I think that we agree that there needs to be clarity, clear policy drivers and an approach that is not random. There is a point between the rather extreme position taken by the hon. Gentleman and the more random-looking provisions in the Bill, and that is the place where we ought to end up.
Anonymised data at a very local level are essential to understanding differences and variations, as I know from my experience as both a councillor and a community worker. Having that sort of information, right down to the small enumeration district level, made an enormous difference in targeting activity to help people in the area where I worked.
Another point concerns how devolved issues are dealt with in the legislation. I do not want to detain the Committee long on this point but, sadly, we have had some illiteracy previously from the Ministry of Justice on the nature of the devolution settlement. That is a pity considering that it is the Department responsible for constitutional matters. The Minister may recall that last year, last-minute amendments had to be made when requirements to protect NHS staff had been made applicable only to England rather than to England and Wales.
I am concerned about the phrasing of proposed new section 50C(4) of the Data Protection Act 1998 on the sharing of information between Welsh Ministers and central Departments. Proposed new section 50E(4) refers to an order that
“authorises information to be shared by or disclosed to a relevant Welsh body in connection with any devolved Welsh function of the body”.
Before doing so,
“An appropriate Minister must obtain the consent of the Welsh Ministers”.
Ministers in the Department for Justice should be familiar with the fact that crime reduction and policing are not devolved matters, but that the Welsh Assembly is a designated body under the 1998 Act when it comes to using its capacity to help the reduction of crime. Therefore, the line between devolved responsibilities and those held by devolved organisations and Departments is not that clear. Rather than detain the Committee, I simply ask the Minister to look at whether the measure is quite as it is intended. She could look at it with some of us who have recently been teasing out those issues when dealing with legislative competence orders or members of the Welsh Affairs Committee.
Finally, will the Minister, in any redraft, consider the opinions that were expressed by the Justice Committee? Given the significance of the proposed data-sharing code of practice in governing the practical application of policy—as I have said, that should include policy on which requirements are placed by Government—parliamentary scrutiny of draft sharing codes of practice should be incorporated. Secondly, will the Minister say whether the Bill deals with a situation in which it might be in the public interest for the personal data in question to be shared but the body holding the data makes no application to do so? The answer might be that the only way to deal with that would be with a mandamus order, but if a Department or an organisation is reluctant to share data, they may not request the exercise of powers by Ministers. I would be grateful if the Minister were to clarify what would happen in such circumstances.
Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)
I do not want to trouble the Committee for more than 20 seconds. This is a sort of back-of-an-envelope stab at the problem. I looked at clause 152 carefully, but I could not see any requirement for data-sharing proposals to comply with the data-sharing code. Can we have that in the Bill please?
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I fully accept the points made by my right hon. Friend the Member for Cardiff, South and Penarth and the hon. Member for North-West Norfolk, and I endorse the spirit of the amendments. I would expect any sharing of information authorised by one of the new information-sharing orders to be undertaken in the code of practice. The code of practice is issued under clause 153 and would set out guidance in relation to sharing personal data. Such guidance would be applicable in all cases, irrespective of the statutory or other power under which the data are shared. As such, there is no need for the Bill to include an express link between the code of practice and information-sharing orders, because the link is already there.
Alun Michael (Cardiff South and Penarth, Labour)
I made the point that, even when that is the case, data protection requirements are massively misinterpreted by data protection controllers and lawyers. Even though she has confirmed that link, I urge her to put it in the Bill.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
Over the next week or so, during the course of the Committee’s discussions on other aspects of the Bill, which I look forward to, we will no doubt see whether that really is essential, despite the fact that I have said that the link is there already. However, I agree with my right hon. Friend that it is central to any decision on data sharing that the code of practice makes provision that encourages data controllers to take all factors into account in reaching a judgment about sharing data. However, I consider that that is already encompassed in the requirement for the code to make provision in relation to the requirements of the Data Protection Act 1998 and good practice.
I hope that I have been able to provide some reassurance, although I suspect that I have not entirely reassured my right hon. Friend. I believe that the link is already provided for, but if we need to discuss that further during next week’s debate, we can do so.
Russell Brown (Dumfries and Galloway, Labour)
In response to my right hon. Friend the Member for Cardiff, South and Penarth, the Minister referred to the devolved Administrations. Keeping in mind that the Scottish Parliament has different powers from the Welsh Assembly, have she or her officials spoken to officials or Ministers in the Scottish Parliament about the changes? Will she share any responses that she might have received?
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I have not spoken with Ministers in the Scottish Parliament, but officials have been in contact with them, and my understanding is that they are satisfied with the way in which the provisions have been developed. I ask my right hon. Friend to withdraw his amendment, and I shall reflect further to see whether it is necessary to put in the Bill the suggestions made by him and the hon. Member for North-West Norfolk.
Alun Michael (Cardiff South and Penarth, Labour)
Did the Minister say that she would consider all my points about redrafting the Bill?
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I shall certainly consider all the points that my right hon. Friend has made. On those dealing with parts of the Bill not directly related to the amendments, I shall write to Committee members or speak to them in some other forum.
Alun Michael (Cardiff South and Penarth, Labour)
I am grateful to my hon. Friend for that. I beg to ask leave to withdraw the amendment.
Division number 4 - 7 yes, 8 no
Voting yes: Henry Bellingham, Tim Boswell, Edward Garnier, James Gray, David Howarth, Jennifer Willott, Jeremy Wright
Voting no: Russell Brown, Maria Eagle, Stephen Hesford, David Kidney, Ian Lucas, Alun Michael, Madeleine Moon, Bridget Prentice
Division number 5 - 8 yes, 7 no
Voting yes: Russell Brown, Maria Eagle, Stephen Hesford, David Kidney, Ian Lucas, Alun Michael, Madeleine Moon, Bridget Prentice
Voting no: Henry Bellingham, Tim Boswell, Edward Garnier, James Gray, David Howarth, Jennifer Willott, Jeremy Wright
Roger Gale (North Thanet, Conservative)
Before we proceed, there is something that I wish to say to the Committee. It is the duty of those representing the Speaker, as members of the Chairmen’s Panel, to seek to expedite and facilitate business, and also to endeavour to ensure that legislation is thoroughly debated, although that is not entirely in our gift. I probably have the power to issue an instruction through the usual channels, but at this stage I shall make it a request to the usual channels and Front Benchers.
There are 135 clauses left to be discussed. As things stand, the Bill is supposed to exit the Committee by 4 pm on Thursday next. Given the number of amendments that have already been tabled, I cannot realistically see that it will be possible to achieve that consideration in that time. I am perfectly prepared to sit if necessary on Tuesday evening next week, as I was this week, but even then I question whether it will be possible to get through all that work within in the time agreed on the Floor of the House. That may mean that the Committee will think it necessary to return to the House to seek additional time or to go through the night on Tuesday. Again, I am personally willing to do that. [Interruption.] Order. I mention this now because I think it appropriate that the Committee starts considering the matter now rather than when it is too late.