Clause 152

– in a Public Bill Committee at 10:15 am on 26th February 2009.

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Information sharing

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I beg to move amendment 49, in clause 152, page 100, line 7, leave out ‘any person’ and insert ‘an appropriate person’.

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to discuss 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.’.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

We now come to the far more controversial clause about information-sharing orders. We must discuss it in the context of Sir David Omand’s paper for the Institute for Public Policy Research, which, at the least, revealed the breadth, scope and depth of central Government’s ambitions in the matters of data collection, data mining and invasions of the privacy of individuals.

Clause 152, either intentionally or unintentionally, is part of a bigger picture in which the state allows itself more and more powers to collect and process personal data about individuals for purposes that are not revealed to those individuals. In fact, the crucial issue in the debate will be that of purpose. What happens when data are collected by the Government for one purpose, but they want to use the information for another purpose? That is when all the violations of the principle of privacy will occur, and why it is relevant to mention Sir David Omand’s paper.

No one doubts that there are examples when data or information sharing that is technically not allowed under primary legislation would be helpful to the general public. The question facing is us is not whether there are annoying and inconvenient times for the Government, and occasionally for Parliament, when they have to pass secondary or primary legislation to allow something that is clearly advantageous to happen. We do not doubt that sometimes secondary legislation is not well scrutinised, but we are concerned about the extraordinary scope and breadth of the powers that the clause grants to the Government. It is either lazy drafting or the consequence of a habit of mind that the danger of such powers no longer occurs to officials or Ministers as the sort of thing that they should worry about.

We really ought to be worried about the breadth of these powers. They threaten to undermine, for example, the privacy of medical records, the scope of the use of the identity card database and any restrictions on the use of the DNA database.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

Has the hon. Gentleman seen that Dr. Meldrum of the BMA says that the clause could seriously undermine the confidence that patients have in doctors and that it might even lead to patients being reluctant to disclose personal information?

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I saw the announcement. As lawyers, we often do not take what doctors say as seriously as doctors do. On this occasion, however, we have to take the point seriously, because it relates to the point about purpose. Let us say that a patient has gone to a different doctor because of the nature of their condition—perhaps it is a sexually transmitted disease, which has a certain amount of stigma. Unfortunately and quite wrongly, stigma applies to a whole range of conditions, including mental health conditions. That patient is now confident that confidentiality is covered by medical ethics, medical law and the Data Protection Act.

The information-sharing orders allowed under the clause could sweep all that away. They allow sharing with any person, despite what any enactment might say. A patient in that position might well be worried that this information would subsequently—not under conditions of law at the time—become available to people other than that particular doctor. That is not a fanciful worry—it is a real one that the medical profession has identified.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I was going to say something slightly unpleasant about lawyers and the hierarchy of the medical profession, but the moment has passed, so I shall make another intervention.

It strikes me that the hon. Gentleman does not believe that the clause has been designed for the purposes that he has described but fears that it could be used for such purposes. Does he not accept that, by any reasonable standard, it would be wholly disproportionate for anyone to use these provisions for the purpose that he has just described, which would not therefore stand up to any kind of legal scrutiny?

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

The right hon. Gentleman made that point on Second Reading. The danger is that, first, a court might not feel itself able to judge the proportionality of a particular measure to some sort of vague, relevant policy goal. I shall get on to the whole section of the clause that talks about relevant policy goals, but that is far too vague to be subject to any sort of specific and  accurate legal review. That undermines the point that the right hon. Gentleman is making, which is otherwise a good point, that if there were misuse, there is the backstop of judicial review. However, the clause is drafted so vaguely and grants such power to Ministers that the court would be deterred from the ordinary rules of judicial review.

Photo of David Kidney David Kidney Labour, Stafford

On the medical point, Sir Mark Walport’s memorandum states that

“It is important to stress that the order-making power in the draft legislation relates to Recommendation 8 in our review”, which concerns the fast-track procedure for removing individual obstacles to data sharing.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One o’clock.