Clause 4 - Amendment of the Data Protection Act 1998

Promotion of Volunteering Bill – in a Public Bill Committee at 3:30 pm on 5th May 2004.

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Mr. Brazier: I beg to move that the clause stand part of the Bill.

The Chairman: With this it will be convenient to discuss the following amendments:

No. 12, in clause 4, page 3, line 36, after 'organisation,' insert 'or'.

No. 13, in clause 4, page 3, line 36, leave out 'or statutory body'.

No. 14, in clause 4, page 3, line 40, leave out

'any voluntary organisation or volunteering body'

and insert

'the organisation or body in question'.

No. 15, in clause 4, page 3, line 43, leave out 'or volunteer'.

No. 16, in clause 4, page 4, line 1, leave out 'or he'.

No. 17, in clause 4, page 4, line 2, leave out 'volunteer'.

No. 18, in clause 4, page 4, line 5, after 'section,' insert ' ''volunteer'','.

Mr. Brazier: Once again, I shall be brief. We are considering two main problems in the Data Protection Act 1998. I said that there is a problem with the European convention on human rights, which is why I was happy to drop some provisions. One of the two main points that came out of the drafting discussions on the Bill was accessing data on how to contact voluntary organisations. Let me give an example that originated from the Central Council of Physical Recreation.

Unfortunately, Sport England, in an error which I am sure was wholly unintentional, put an old form on its website. It was supposed to explain to certain categories of clubs how to apply for charitable status. It was a perfectly honest administrative error of the sort that can happen in any organisation. As a result, a large number of clubs used the wrong form, misapplied to the Inland Revenue and were rejected.

When the CCPR asked the Inland Revenue for a list of the clubs and organisations that had submitted the wrong forms so that it could send them up-to-date forms, they were told, ''Oh no, we cannot do that because the Data Protection Act does not allow us to release the information.''

One of the amendments addresses the point that it should be much easier to release contact details for organisations. We would not give away any sensitive information about individuals, but merely explain how to get in touch with organisations. Another is small and self-explanatory. It is intended to give a bit of comfort by ensuring that it would not be an offence for someone in a voluntary organisation to give out data in good faith if there is no possibility of commercial gain. That is the sort of common-sense measure that I thought might commend itself to Parliament and the Committee.

Andrew Bennett: I had a lot of sympathy with clause 3; I have less with this clause because it seems that the Data Protection Agency has operated with a great deal of good sense. It is other bodies that have used it as a bogey to try to deny access. Does the hon. Gentleman have any evidence that the Data Protection Agency has acted unreasonably?

Mr. Brazier: I have not attacked the Data Protection Agency, and I did not intend to do so. My practical example concerned the Inland Revenue, which I can honestly say is about the most efficient of all Government organisations in terms of the way it handles my constituency postbag. It deals with constituency casework faster than anyone I can think of. The fact that it has interpreted the Data Protection Act in the way I mentioned suggests to me that the problem extends into Government.

Mr. Boswell: I am sure that my hon. Friend will not have followed—as some of us have in detail—the proceedings of the Gender Recognition Bill. I do not seek to reopen the Committee proceedings on that Bill here, but the same issues arose of the exchange of information and whether it might or might not be relevant. Does my hon. Friend concede that even if it is impossible to enact the clause for tactical and legal reasons, it is nevertheless important that people should be able to release information and are able to do so provided they have consent of the parties concerned?

Mr. Brazier: Yes, I agree. I do not want to prolong the debate because I shall support removal of the clause, which was included as a talking point. The matter goes beyond consent of the individual. For example, someone may have knowledge about the medical condition of a child and when that child has left their custody, they may have good reason to pass on information obtained as a result of looking after that child. They might want to contact a neighbour, or whoever that child is staying with, to pass on details because they seemed important. My understanding is that the Data Protection Act and the rulings of the commissioner are quite helpful in such circumstances.

The fact is, however, that there is a perception problem, and my example of the Inland Revenue shows that the problem extends not just to voluntary

organisations but to Government and large organisations. The police interpretation in the Soham case is the most famous example, but there have been examples in the press relating to social services. My aim in including the clause—it is the one element of the Bill that, to be realistic, I never hoped to get enacted—is to press for more public statements from the Government and the information commissioner to ease the real concerns of voluntary organisations, which they pass on to me from time to time.

Mr. Wyatt: Forms often ask us to tick if we wish to receive further information or tick if we mind disclosing something. Would not one solution to the hon. Gentleman's problem be to add a tiny box at the end of a form so that one would not have to apply to any data protection agency? Clubs could just tick the box to allow something to be put in the public domain.

Mr. Brazier: That is an excellent suggestion. My point in initiating the debate was to say that we need to find ways to ease the perceived and, where some Government agencies are concerned, the actual burden that the Data Protection Act causes.

Fiona Mactaggart: I am grateful to the hon. Gentleman for saying that the clause was a probing one. For the benefit of the Committee, I ought to spend some time dealing with his fundamental point. He recognises that the clause is designed to deal with something that is much greater in perception than reality. My concern is that that is a description of the whole Bill and that legislation is not a very good way of dealing with problems of perception. It plays a role, and that is one reason why I took the opportunity of the sittings motion, despite your strictures, Mr. Amess, to examine and, in many ways, to welcome the way in which the issue had been put on the agenda. People have been given high hopes that a surprisingly wide range of problems will be resolved by this Committee coming up with a piece of legislation. That is part of the problem that we must address.

I have tabled a series of amendments, and I am in your hands, Mr. Amess, about whether we are currently discussing amendments that were moved by the hon. Gentleman or the clause stand part. I will take the visual guidance that your hands are giving me and take the opportunity to discuss the whole matter. I am not trying to prolong today's proceedings.

Mr. Taylor: Will the Minister be kind enough to reflect on whether, by the 1998 Act, the Government intended to encompass voluntary organisations? Under the original directive, which turned into UK legislation, there was dispensation or exemption when the processing of the legislation was unlikely adversely to affect individuals' rights and freedoms. As a Minister in the Conservative Administration of long ago, I recall that we had intended to exercise to the full such powers of exemption or simplification under the directive. I am sure that if we were in power this would be one areas that we would have tried to exempt.

Fiona Mactaggart: I have to be honest and say that I do not completely understand the purport of what the hon. Gentleman said. I did not have to be honest then and I could have burbled.

Mr. Taylor: I had not deliberately sought to be obtuse, but it is a long time since I was a Minister so I am not as sharp as the hon. Lady.

In brief, the point that I was trying to make was that the 1998 Act did not take the powers of exemption that the directive had enabled the Government to take. On reflection, would the Government prefer to have exempted voluntary organisations? This probing clause would then give them an opportunity to say that they are taking the matter for further examination to see whether application of the 1998 Act has been too extensive.

Fiona Mactaggart: Actually, I do not think that. The point goes back to the issue about professional and voluntary that I was dealing with before.

We are in an era in which we increasingly ask voluntary organisations of many different kinds to contribute to public services and in which many of our services for older people are offered by voluntary organisations; they are often offered by volunteers and sometimes by employed people in voluntary organisations. It is right that the people who benefit from those services should enjoy the same standards of protection for their personal data as people who receive those services from a statutory body. After all, that is what the Act is designed to cover.

We all agree that there are hard corners to the consequences, although I do not think that matters have been necessarily affected in quite the way that the hon. Member for Canterbury thinks. As he pointed out, much of this is an issue of perception, rather than actuality. We also know that the perceived problem is not confined to the voluntary sector. As he pointed out, there have also been issues of misperception in the police about their duties under the Data Protection Act 1998. It is important that we are clear about the fact that the Act regulates the processing of information relating to individuals, including obtaining, holding, use or disclosure of such information. In implementing the directive referred to by the hon. Member for Esher and Walton (Mr. Taylor), the Government sought to provide the right balance between the individual's entitlement to privacy in the handling of his personal details and the information user's needs to process information to provide the required services.

There is a degree of misunderstanding about the eight data protection principles that provide the backbone of the Act's regime. They are expressed in general terms. We need an increased understanding of those terms; it is clear from today's debate that they are not fully understood. They require that personal data be fairly and lawfully processed; that it be processed for limited purposes; that it should be adequate and relevant; that should not be excessive; that it should be accurate and kept no longer than necessary; that it should be processed in line with the individual's rights; and that it be kept secure and not transferred to countries without adequate protection.

All disclosures of personal data must be made either in accordance with the data protection principles that I have outlined, or consistently with one of the Act's non-disclosure exemptions. The latter have the effect

of lifting some of the Act's restrictions on disclosure in limited circumstances, when matters recognised as being in the public interest—for instance, the prevention or detection of crime—are otherwise be likely to be jeopardised. It would not be in tune with that approach to have a broad door, called voluntary organisations.

We know to our cost—it is one of the reasons why I shall shortly bring forward a new charities Bill—that some would exploit the status of voluntary and charitable organisations for personal gain through processes contrary to the intentions of that status. They are rare, but they nevertheless exist, and we have a duty to protect people against them.

The clause appears to exempt from all relevant requirements of the Act any disclosure of contact details or officers' names relating to any voluntary organisation or volunteering body, provided only that the disclosure was made in good faith and not for commercial gain. The term ''contact details'' is not defined, the dispensation would be available to any voluntary organisation, volunteering body or statutory body, and the information could be disclosed to any body for any purpose. That is a very broad door. Such wide exemption would be inconsistent with the Act's regime, and it would appear to be inconsistent with the derogations from the data protection principles, which the directive permits.

New exemptions to the Data Protection Act would need to be carefully considered, and the Government would wish to consult the Information Commissioner about them. We are clear that it would not be appropriate to exempt disclosures of personal data in the voluntary sector from any part of the Act's regime simply because the sector would find it easier to operate outside the relevant restrictions. Individuals whose personal details are held by voluntary organisations are just as entitled to have their details properly protected as any other individual, and personal details in such cases are things that they would not wish to be in the public domain, such as their participation in voluntary organisations, or management bodies that might be the targets of attack from people who disagree with their aims. Having their names and addresses in the public domain would not be welcome. It is important that we do not slip into making such a broad exemption.

As for proposed new section 30A(2) to the 1998 Act, it is an offence under section 55(1) of that Act to disclose personal data knowingly or recklessly and without the consent of the data controller. Thus, a volunteering body or a voluntary organisation could not commit and offence under the Data Protection Act—

Sitting suspended for Divisions in the House.

On resuming—

Fiona Mactaggart: I was coming to the end of my response to the points raised by the hon. Member for Canterbury about the operation of the Data Protection Act 1998. Before I conclude, however, I

may mention that I successfully used the opportunity of the Division in the House to collar the Minister for Sport and got him to agree that he, our officials and I will meet to discuss how we can assist the volunteering sector with the insurance problems that we have debated. I am trying to assist the hon. Gentleman in finding resolutions to the issues, and that is one example of the ways in which I am seeking to do so.

Mr. Brazier: I welcome that announcement. It is good news. I hope that the summit—

Mrs. Lait: Summit?

Mr. Brazier: Two Ministers meeting is a summit. I hope that it produces a good outcome for the sporting world. The test of the pudding will be when the rules are implemented later in the year.

I also welcome the Minister's general remarks. At the end of the day, we will see whether data protection improves as a result of the guidelines and cases as they emerge.

The Minister alluded to the Charities Bill and the fact that she will be bringing it forward. That is good news for the whole Committee, because it will give us an opportunity to return to any issue that is not resolved during the course of this Bill.

Mrs. Lait: Will my hon. Friend press the Minister to say when the Charities Bill will be published, as we may finish this Committee before then?

Mr. Brazier: Indeed. I do not know whether the Minister is tempted to respond with a publication date. That Bill was, after all, in the Queen's Speech.

Fiona Mactaggart: I can assure the Committee that it will be published this month.

Mr. Brazier: I am grateful. That Bill will offer us a second opportunity to visit any issues not cleared up during this one.

Question put and negatived.

Clause 4 disagreed to.