EXEMPTIONS

HC Deb 08 July 1988 vol 136 cc1352-6

Lords amendment: No. 23, in page 3, line 34, after "individual" insert "or others".

Mr. Kirkwood

I beg to move, That this House doth agree with the Lords in the said amendment.

I can deal with this amendment fairly briefly, but it is a matter of some substance that I thought right to single out for special attention.

Lords Amendment No. 23 slightly widens the exemptions in clause 6 of the original Bill. Under that clause, a doctor can withold part of a report from an individual if the doctor judges that disclosure would cause severe physical or mental harm to that individual. The amendment would allow access to be witheld in the very, I hope, exceptional circumstances where it was thought that harm to some other person, apart from the individual, could arise—for example, if it was thought that a seriously disturbed person might be provoked into making a violent attack on someone else.

It is a sensible provision and has sufficient substance to merit some discussion on its own. I hope that the House will agree to the amendment.

Mr. Eric Forth (Mid-Worcestershire)

I had wanted to intervene in the speech made by the hon. Member For Roxburgh and Berwickshire (Mr. Kirkwood), but I will make my comments in a speech instead.

I would like clarification on some points. Who will make the decision about the invocation of the exemption? There might be some difficulties here over who decides whether a matter was an exemption under the terms that have been described to the House. We must be sure that we are satisfied that if, as I assume, the doctor takes the decision, the Bill includes provisions in connection with the freedom of access to information to reverse the matter and provide an exemption. It seems to me as a layman that this matter might range quite widely depending on the definition and interpretation of the phrases used. Although the hon. Member for Roxburgh and Berwickshire gave only one example, we can all think of others. I wonder whether we are satisfied that the point is sufficiently well defined and that we are clear as to whose discretion would be effective to take the decision. I hope that that will be clarified.

Mrs. Currie

This clause is a little different from the other clauses. The Government's view is that the House might want to accept the amendment, but with one or two more genuine reservations than those expressed previously.

As drafted, clause 6 provides that information may be withheld from the individual by the practitioner where disclosure would be likely to cause serious harm to the individual. The amendment seeks to extend the exemption to cover all others. I understand that Lord Mottistone was strongly backed by the National Schizophrenia Fellowship.

The amendment is consistent with the subject access provisions in the Data Protection Act 1984 relating to social work but not consistent with the subject access provisions for health. To be included, such a provision would run counter to the European convention on the use of automated medical data banks. No such constraints are imposed in social work. However, that is not a reason to oppose the amendment.

We believe that the proposal is sensible, although such a provision is likely to be used only rarely. Our slight concern in accepting the amendment is that it might just set a precedent. However, we would expect it to be used rarely and I believe that that would be the view of Lord Mottistone. On that basis, I want to put it on record that we accept the amendment with reservations.

Mr. Corbett

The Opposition welcome the amendment. As the Minister has said, and as other hon. Members will be aware, the National Schizophrenia Fellowship for the welfare of sufferers and their relatives made this point and in a letter to myself and doubtless to other hon. Members said: In our Fellowship's view it is not only the physical or mental health of the individual which may be at risk if he sees his medical report, but that of others. If there is a history of violence, it could be the last straw to see a medical report which … could easily lead to physical assault. I agree with the Minister that this provision is likely to be used very rarely. It must be used with the utmost care and sensitivity, and no doubt it will be.

Mr. Kirkwood

I hope that I can persuade the hon. Member for Mid-Worcestershire (Mr. Forth) that the exemption provisions in clause 7 give the medical practitioner the discretion, as he rightly pointed out, to deny access. I do not think that the situation will arise all that often. Our discussions with the medical profession including the British Medical Association and others show that clear guidelines will be available to doctors through their own ethics committees adequately to cover this point. However, that is not on the face of the Bill. I was persuaded that it was not necessary to include anything on the face of the Bill to cover that because the exemption will be so infrequent and the guidance available from the Department and the BMA will cover the point adequately. I hope that the hon. Gentleman will be prepared to accept that.

Question put and agreed to.

Lords amendment No. 24 agreed to.

Lords amendment: No. 25, in page 3, line 45, leave out subsections (3) and (4).

Mr. Kirkwood

I beg to move, That this House doth agree with the Lords in the said amendment.

I moved a number of amendments in Committee, which the Government considered to be essential, as they brought the Bill into line with the access provisions of the Data Protection Act 1984. It is sensible for legislation to be brought in line. However, one of the amendments repeated the exemption provisions of the Data Protection Act 1984 for information that was harmful to national security. I remember the hon. Member for Birmingham, Erdington (Mr. Corbett) expressing mild puzzlement—to speak euphemistically—as to how the issue of national security could arise in a Bill that was concerned with general practitioner reports to employers and insurers. To be fair to the Government, the original scope of the Bill was not clear. Someone—not the Minister, I am sure—must have thought that the definition of medical reports might catch accidentally psychological profiles based on lie detector tests at GCHQ. That was not the intention. I am pleased that the Government have thought again about the national security issue and have agreed that that exemption is unnecessary. Amendment No. 25 removes references to that exemption.

It has only just become clear to me that for the provisions of the Bill to apply to Government Departments and the Civil Service, the long title would have had to specify that the Bill sought to remove Crown immunity and that Government Departments would come within the scope. The House Mould ponder that because I should not like to be accused of ignoring it. I have recently received advice that Government Departments will be left outside the scope of the Bill; that point was not discussed at earlier stages. If Crown immunity had been removed explicitly, it would have been necessary to state that in a clause at the beginning of the Bill.

Crown immunity leaves a substantial loophole. I hope that Government Departments will respond positively and that the spirit of the law will be embraced by them in a moral sense. I hope that they will seek to comply with the Bill both for new and for existing employees. I hope that I am not pushing my luck to far in saying to the Minister that as she has been so helpful so far, she could put a cap on that assistance by telling me that she will advise her Department, as an employer, to accept the spirit of the legislation.

Mr. Forth

The hon. Gentleman is pushing his luck.

Mr. Kirkwood

Nothing ventured, nothing gained.

I hope that the House will discuss the amendment against that background. It is important because it relates to Government Departments.

1.30 pm

Mrs. Currie

I hope that the House agrees that we have had an interesting morning. Apart from anything else, in a small and, I hope, tantalising way, I have drawn aside the veil of secrecy that surrounds the detailed advice that Ministers are given. The House is about to hear me say that I was wrong, and I do not often do that either. This is a great historic event. In view of the comments made on amendment No. 25, it is probably as well that anyone else who seeks to promote a private Member's Bill should take note of the fact that Bills do not bind the Crown unless they specifically say so. Since the change is usually major and requires extensive consultation and discussion, it is not normally acceptable to the Government, unless they say so at the beginning, and there is usually ample time —six months or more—in which discussions can be held.

On 29 April, when we were debating national security exemptions, I responded to points made by the Opposition. Referring to the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood), I said: the hon. Gentleman may like to take some proper advice about it. It is for the promoter of the Bill to decide whether the amendment should stand or be withdrawn. It is our view that it improves the Bill. We would wish to take further advice if the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) wants to withdraw it."—[Official Report, 29 April 1988; Vol. 132, c. 685.] There was considerable discussion on Report, and when the Bill left the House extensive consultations took place with the Home Office, the machinery of Government office—the Minister for the Civil Service—the Ministry of Defence, the Cabinet Office and my Department. No valid case could be made to support the view that a national security exemption was justified within the limitations of the Bill—taking into account the point about pre-existing Crown immunity—and officials advised the hon. Member for Roxburgh and Berwickshire accordingly. Parliamentary counsel's advice on how the amendment might be removed was sought. On 29 April, I said that the clause improved the Bill. I was wrong—it does not improve the Bill. Therefore we are content that amendment No. 25 should be made.

The hon. Member for Roxburgh and Berwickshire asked about my Department's views. We have had discussions and I am happy to offer the House the assurance that the DHSS will follow the spirit of the Bill and that my officials have been so instructed. The Bill applies in England, Scotland and Wales, but not in Northern Ireland, until an Order in Council is made. The hon. Gentleman will have to make inquiries of other Departments elsewhere and outwith the Bill.

Mr. Corbett

It is a rare and historic moment when we hear the Minister at the Dispatch Box apologise for what was said in the House on 29 April, and I thank her—[Interruption.] Not at all. I am in favour of any hon. Member, whether an exalted Back Bencher or a lowly Front-Bench spokesperson saying that he or she made a mistake and got it wrong. There is no shame in that.

I am sure that the hon. Lady will forgive me, but she did not do herself justice by reminding us of what she said on 29 April. She could hardly get to her feet quickly enough to accuse me of firing Exocets and generally to chastise me in her best headmistressy, nay matronly, fashion for raising this matter and to tell me that I was not only wrong to raise it but was raising the wrong point on the wrong Bill.

Things move on, and all I want to do in thanking the Minister for seeing the ludicrousness of the proposition is to say that, on reflection, it was not my Exocet that put her in such a state but the boomerang that she had in her hand, because it has come back and taken her head off her shoulders. [Inerruption] I am an old technology person as well.

Following my contribution, the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) said: I assure the hon. Member for Birmingham, Erdington (Mr. Corbett) that it is the most acceptable agreement that could be reached in the time available."—[Official Report, 29 April 1988; Vol. 132, c. 685.] That is why I saw the Minister's paws all over that part of the Bill. All's well that ends well, and I hope that the House accepts the amendment.

Mr. Kirkwood

This is the final stage of the Bill's progress. I am grateful for the response by the hon. Member for Birmingham, Erdington (Mr. Corbett). He ends up with all the Brownie points—certainly in respect of the last amendment. I am genuinely grateful for the Minister's statement about the response that her Department will make. I hope that the House will now consider that the Access to Medical Reports Bill finally recognises the possible harm that could be caused by incorrrect or misleading information recorded in medical files. The Bill introduces safeguards in employment and insurance matters, and certainly trades additional administrative procedures to be carried out by employers and insurance companies for enhanced protection for individuals. I hope that the House will consider that it is worth paying that price. I commend the Bill to the House.

Question put and agreed to.

Lords amendments Nos. 26 to 30 agreed to.