Clause 35
Health Bill [Lords]
1:15 pm

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I beg to move amendment 84, in clause 35, page 33, line 21, at end insert—

‘(3A) Her Majesty’s Revenue and Customs must publish a list of disclosures of information under subsection (2) to the persons listed in subsection (3), paragraph (e) which must specify—

(a) the person or persons to whom the information was disclosed; and

(b) the reason for the disclosure.’.

Robert Key (Salisbury, Conservative)

With this it will be convenient to discuss the following: Amendment 85, in clause 35, page 33, line 22, leave out ‘a’ and insert ‘an anonymised’.

Amendment 161, in clause 35, page 33, line 23, after ‘enable’ insert ‘any’.

Amendment 86, in clause 35, page 33, line 24, after ‘person’, insert ‘or practice’.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

As they say, Mr Key, see you on Report.

Clause 35 moves on to a different subject: the disclosure of information by Her Majesty’s Revenue and Customs. I will deal with three amendments and my hon. Friend the Member for Hemel Hempstead will deal with amendment 161.

Amendment 84 seeks to ensure that there is an appropriate level of accountability and public scrutiny included in the information-sharing practices of Her Majesty’s Revenue and Customs and the Department of Health, by mandating HMRC to publish details of the recipients of the information it discloses to the Department of Health and the reasons behind those disclosures. The amendment would help ensure that the Government do not share information for reasons other than those expressed in the explanatory notes and debates on the subject to date.

Amendments 85, 161 and 86 all seek to ensure that the provisions of this clause cannot be exploited to share information for any reason other than the intended purposes. During Second Reading, the Secretary of State deftly tiptoed around the fact that for the last four years, his Department has been complicit in an information-sharing practice which is illegal. The Secretary of State could not quite bring himself to use the word “illegal” during our last debates. Rather elegantly, he referred to it as giving the practice a “firmer legal footing”. As the Minister and I both know—as will anyone else who has been trained in the law—that is the ultimate legal and lawyer’s phrase for saying “I need to make sure this is legal because it has not been like that to date.”

I can understand the reasons behind requiring access to the information. I was much consoled by Baroness Thornton’s admission in the other place that she and her colleagues had consulted the British Medical Association and the British Dental Association about the arrangements in the Bill. However, I seek an assurance from the Minister that this process will, from now on, take place in the full light of day—something that my amendment intends to enshrine in primary legislation. Amendment 84 does not allow for information on pay to enter the public domain, but it does enable the process of sharing this information to be scrutinised widely. There is need for transparency in every aspect of government. If the Government are honest and up-front with the public about information-sharing practices, there is less scope for abuse or misuse of information. Therefore, I need to ask the Minister what measures have been put in place to ensure that the information that he obtains from HMRC is not abused, but used appropriately. How is he ensuring that the Government are accountable for the way in which they use the information?

Through amendment 85, I wish to probe the process by which the disclosed information will be anonymised and to query why the word “anonymised” has not been included on the face of the Bill. The explanatory notes state:

“The information disclosed will be a summary of anonymised information relating to the earnings and expenses of these practitioners.”

The explanatory notes contain both the notion of aggregation and the notion of anonymity as distinct processes, whereas the Bill appears to blur these two concepts into one.

Let us examine the exact phrasing of the paragraph in question. The Bill states:

“Information may be disclosed under this section only in the form of a summary or collection of information so framed as not to enable information relating to a particular person to be ascertained form it.”

The Bill directly links the inability to obtain information relating to a particular person to the aggregation of information in the form of a summary, but that does not necessarily include anonymisation. It is true that the Government may well be able to achieve a certain amount of anonymity through presenting data in an aggregated form, but we need to be clear about what “anonymised” actually means. The Oxford English dictionary defines it as the quality of being

“made anonymous, especially by the removal of names or identifying particulars”.

It is clear that the word is more precise than the anonymity derived from aggregated data. It involves the removal of specific identifiers such as names, addresses or gender, where relevant, so that even if the information is broken down to the level of a practice or group of practitioners, the anonymity of specific persons is fully protected. By way of example, I cite the comments of Baroness Cumberlege in the other place. She asserted that with aggregated information on a particular area of the country, the clause could apply to

“the disclosure of identifiable information relating to a specific GP practice with more than one partner. You would not be able to ascertain the income of one individual, but you would be able to ascertain the income and expenses of the partnership.”—[Official Report, House of Lords, 17 March 2009; Vol. 709, c. GC36.]

By placing the word “anonymised” in the Bill, I hope to cement the Government’s commitment to sharing information only where anonymity has been rigorously guarded, even when it is presented in an aggregate form.

It is important that we distinguish between aggregate and anonymised and do not rely on one to deliver the other if aggregate information would allow quite a close analysis of the salaries of a particular practice, for example. As I have already stated, this is a probing amendment, so perhaps the Minister can shed some light on the process by which information is aggregated, so that the Committee can be reassured on that matter.

I shall skip over amendment 161 and leave it to my hon. Friend the Member for Hemel Hempstead. While I am on my feet I shall address amendment 86, which picks up on some of the comments made by the Government in the other place. Baroness Thornton took issue with a query from the Conservative spokesperson, Baroness Cumberlege, regarding the ability of the Government to use the clause as a mechanism to obtain information on a particular practice. If that is possible under the proposed legislation, it would be relatively easy to match up pay details with specific practitioners.

Baroness Thornton gave an assurance in the other place that details of practitioners’ pay would not be disclosed by Her Majesty’s Revenue and Customs in an aggregate form unless it related to 30 or more doctors or dentists. She said that the number would be revised if it was thought that a practice might exceed that number of practitioners. The Minister may wish to reiterate that, and I hope that he will.

That guiding principle may be the current HMRC policy, but what is to stop the Government probing below the guideline of 30 practitioners? What regulations are in place to prevent such an occurrence? I shall be grateful if the Minister will point me towards the relevant legislation.

Michael Penning (Shadow Minister, Health; Hemel Hempstead, Conservative)

I want to speak specifically to amendment 161, with regard to dentists and dentistry. I am sure that the Minister is aware that if one is a commissioned dentist rather than a salaried dentist, one’s practice operates completely differently from the way that other NHS practices work, particularly GP surgeries.

The amendment ensures that no information about a particular person could be ascertained from the disclosure of information. That is important, given that the information about individuals under these circumstances would be somewhat sensitive. To tease the Minister slightly, the HMRC does not have a good track record when it comes to losing data. I am not making a silly point: that concern exists and people are frightened by the fact that the details of about half the population were released, accidentally we assume, by HMRC.

I hope that the Minister will respond. This is a probing amendment and I do not intend to press it. However, there is a special case for dentists in that their role within the NHS is different. They are very much the entrepreneurs in their field. Under the present system, they are paid by areas of dental activity. They buy or rent their surgery and they have all their bills upfront. It is completely different from the way in which the NHS operates in other areas. With that in mind, I am concerned that, in a time of openness, private information, which would be very personal to the individuals involved, could be released under this clause. Will the Minister address those concerns—specifically on dentistry?

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

I appreciate the intention behind these amendments and I share the commitment to safeguarding taxpayer confidentiality to the greatest extent possible. Confidentiality is a defining principle of the clause and the measures in place are there precisely to ensure that information shared by HMRC cannot be associated with any particular person, whether a dentist or not.

It may be helpful if I clarify what the clause, as currently drafted, permits. It goes further than simply anonymising the information that HMRC may disclose. As the hon. Member for Eddisbury pointed out, HMRC must also summarise the anonymised data and may disclose anonymised information only in such a summarised form. As the identification of a particular practice would risk identifying a particular individual, which is already prohibited under the clause, such data could not be disclosed. HMRC does not release aggregated, anonymised statistics based on fewer than 30 cases. That figure would be increased if the resulting statistics were thought to be potentially disclosive.

The hon. Member for Eddisbury asked what “anonymised” means. The safeguards mean that there is no possibility whatsoever of any details or information being linked to any individual or practice, whether dentistry or not.

Amendment 84 seeks to make HMRC, whenever it discloses any information to any person providing services to or exercising functions on behalf of UK Health Ministers, publicise such disclosures, along with reasons  for the disclosure. It is right and proper that we are transparent about the disclosure of information relating to the earnings and expenses of GPs and dentists. It is currently only the NHS information centre for health and social care that receives this anonymised and summarised information from HMRC. If that changed in the future, the information would still need to be passed to some appropriate body that was doing such statistical work. In addition, the information could only ever be disclosed for one reason, as set out in subsection (2), so there is no need to specify that in each case. The purpose of the disclosures is clearly understood by the bodies that represent dentists and GPs, as both they and the UK Health Ministers use the data to ensure that the pay of practitioners remains at an appropriate level.

It is also worth noting that the tax self-assessment forms, which HMRC provides to dental practitioners and GPs, clearly state that the information that they submit to HMRC is subject to being used for the purposes of the earnings and expenses inquiries. When the earnings and expenses reports on GP and dentist earnings are eventually published by the NHS information centre, they clearly state that the source of the data is HMRC and that only aggregate non-disclosive information is supplied to the NHS information centre. In a sense, there is a cordon sanitaire between those who supply the information and those who receive and use it. I do not believe, therefore, that such publication would provide sufficiently beneficial information on the activities of HMRC to justify the amendments proposed. I hope that, with those reassurances, the hon. Gentleman will be able to withdraw the amendment.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I have listened carefully to the Minister. He has been categorical in his assurances; he clearly regards taxpayer confidentiality as paramount to the extent possible. He also used the phrase “no possibility whatsoever” in relation to inappropriate information getting out.

There is no purpose in pressing the amendment to a Division, but it is important to recognise the issue, in terms of any potential problem that could arise in the future. We all recognise that any manipulation of and transactions with information always carry some risk. There have been plenty of examples in which there has been disclosure, on memory sticks and other things, which can easily get out, or on a laptop rather foolishly left in the boot of a car and the car gets stolen. Those things can cause problems, although it never ceases to amaze me how people get through the password. There is always that terrible risk. Once information is used or created for any purpose and taken out of the cordon that surrounds HMRC, there is a risk.

The Minister used the phrase “no possibility whatsoever”. That will provide genuine reassurance but, most importantly, it will be referred to by anyone who feels that their information has got out. That commitment on the part of the Government was a significant statement. On that basis, I beg to ask leave to withdraw the amendment.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I beg to move amendment 195, in clause 35, page 33, line 24, at end insert—

‘(4A) A person who discloses information in subsection (1) to persons other than those listed at section (3) or for purposes other than in subsection (2), commits an offence.

(4B) An offence under subsection (4A) may in particular extend to—

(a) Her Majesty’s Revenue and Customs;

(b) any person listed under subsection (2);

(c) any employee of any person listed under subsection (2).

(4C) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 4 on the standard scale.

(4D) A person or persons to whom the information is disclosed in circumstances under subsection (4A) has a cause of action for damages, including penalty damages, against the discloser.’.

The amendment would ensure that a breach of the terms set out in the Bill by anyone involved in the information-sharing process is regarded as a criminal offence. It builds on the matter that we have just discussed. Any person who shares the information specified under the clause with people other than those listed should be held to account for their actions. Given that the Government have managed to share information—we have to use the word “illegally”—for four years without facing the legal ramifications of doing so, but now wish to put the matter right, it is logical to want the Minister to reinforce that assurance by saying that any breaches of the new legislation will result in appropriate legal action. In other words, it would show that what is being put in place by the Committee is earnest and genuine.

If employees or other persons in HMRC with information-sharing privileges feel at liberty to share information in an unprescribed fashion, knowing that they will not face consequences for their action, information on doctors on dentists could easily be abused and exploited. I therefore ask the right hon. and learned Gentleman to let us know what precautions are being taken to ensure that those who breach the terms of the clause are held to account. Our amendment gives him the opportunity to ensure that such a provision is both real and serious.

Mike O'Brien (Minister of State (Health Services), Department of Health; North Warwickshire, Labour)

It is worth noting that section 19 of the Commissioners for Revenue and Customs Act 2005 already provides the sanctions that might be applied for the wrong disclosure of information by HMRC, including imprisonment or a fine. The clause applies to the disclosure of information relating to persons whose identity is specified or can be deduced from the disclosure.

However, the amendment goes much further. As I have said, the information that HMRC transferred to the NHS information centre comprises aggregated and anonymised analyses. Importantly, the whole point of transferring the information is so that it can be disseminated as set out under clause 35(2)—the purpose of the provision. The most important safeguards are those restricting the type of data that may be disclosed, which I have outlined, not to whom it may be subsequently disseminated.

When the NHS information centre published the data in its anonymised, summarised form in the earnings and expenses report, it inevitably made it more widely available than to those persons listed under clause 35(3). The amendment would throw into question the whole dissemination of the information provided by the NHS information centre, which is the basis of the negotiations on which salaries are conducted between dentists, GPs and the Government. It would thwart the whole point of the clause and prevent the earnings and expenses  report from being made available. Not only would the amendment do something that I am sure was not intended by the hon. Gentleman, but it would go too far. We already have safeguards and protections that prevent non-anonymised data from being disclosed, which include imprisonment or fine, so the amendment would not be necessary even if it focused merely on the mischief with which the hon. Gentleman wishes to deal.

Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

The Minister is right to observe that the amendment would go beyond what is already in place, but he was extremely helpful to draw attention to section 19 of the 2005 Act. As I clearly do not have a copy of the Act on my person, I am grateful to him for that. The provision contains the sanction that is required. The amendment is indeed widely drafted, and I accept that it would go too far. Breaches should have serious consequences and ultimate sanctions should lie behind the provision to make sure that it keeps people’s feet to the fire and that they are honest and practice well rather than sharply or badly. On that basis, I beg to ask leave to withdraw the amendment.