§ Madam Deputy Speaker (Miss Betty Boothroyd)
It may be for the convenience of the House if we take motions 3 and 4 together. [HON. MEMBERS: "Object."] Objection taken. We shall deal with them separately.
§ 12.5 am
§ The Parliamentary Under-Secretary of State for Health (Mr. Roger Freeman)
I beg to moveThat the draft Access to Personal Files (Social Services) Regulations 1989, which were laid before this House on 16th January, he approved.
Before I come to the substance of the access regulations, it may be helpful to hon. Members if I say a few words about the background to them. The regulations apply the Access to Personal Files Act 1987. That Act, as no doubt hon. Members will recall, was promoted with great sensitivity by the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood). It was keenly debated in both Houses and was subject to extensive discussion in Committee.
The Data Protection Act 1984 enables people to know what is recorded about them in computer records. The regulations before us tonight are concerned with records which are not covered by the data protection legislation—they deal with records kept manually. However, in drafting the regulations we have sought as far as practicable to keep in line with the corresponding provisions in the data protection legislation so as to avoid confusion, particularly as an authority may be using both methods for keeping its records.
During the passage of the Access to Personal Files Act 1987 a commitment was given by my right hon. and learned Friend the Member for Ribble Valley (Mr. Waddington), the then Minister of State, Home Department, that, subject to no difficulties being encountered in the consultation process, regulations would be made and that we would endeavour to make them by the end of 1988. We virtually achieved that and they will be made as soon as the necessary approval has been given by Parliament. In their preparation we have consulted widely with organisations representing local authorities, voluntary organisations, health service interests and other concerned bodies.
In the previous debate on the Local Authority Social Services (Designation of Functions) Order, I stated that we had followed that procedure strictly in relation to the draft order.
To allow authorities time to adjust their procedures, it is intended that the regulations should be brought into force on 1 April. To assist authorities, we are issuing guidance to them. Circular LAC (89) 2, which was issued in January, gave advice on social services records and is, of course, subject to approval being given to the regulations by Parliament; a copy of the circular is in the Library of the House.
Much interest was expressed during the passage of the 1987 Act in access to medical records—
§ Mr. James Wallace (Orkney and Shetland)
I understand that the circular to which the Minister has just referred states, in relation to the charging of fees, that the authority will no doubt take into account applicants' ability to pay. Does that mean that his Department is encouraging local authorities not to charge any fee, or 932 does he envisage that local authorities may have a sliding scale of fees and decide whether to charge depending on the circumstances of a particular applicant?
§ Mr. Freeman
I shall deal with that point now, although I was intending to come to it a little later. The hon. Gentleman knows that the proposal is that there should be a maximum fee of £10, but it will be up to local authorities to charge at their discretion. I understand that some local authorities will wish to waive or abate fees depending on the financial circumstances of the individual seeking access to personal files. That is perfectly consistent with the regulations. I hope that that answers the hon. Gentleman's point.
As I was saying, much interest was expressed during the passage of the 1987 Act in access to medical records. Those records were excluded from the Act, but we undertook to hold talks with the medical profession on a voluntary code of practice on access to medical records. Those discussions are proceeding. An agreement has not yet been reached, although substantial progress has been made.
I am determined to see the establishment of a voluntary code shortly. If there is any question of further delay, I shall meet with the profession's representatives myself to ensure that a voluntary code is concluded satisfactorily. Once we have had the profession's agreement, I think it right that we should consult also other non-medical health professionals who maintain records on patients and those bodies that represent patients' interests.
After that outline of the background to the regulations, I turn to the regulations themselves, starting with the social services regulations. The Access to Personal Files Act 1987 takes forward the establishment of individuals' rights to know what was recorded about them by local authority social services departments. In 1983 the then Secretaries of State issued to local authorities in England and Wales general guidance on the principles governing disclosure of information in the records in question to people who were the subject of the information. The Secretaries of State said that they shared the increasingly held view that people receiving those services should.. subject to adequate safeguards, be able to discover what was said about them in those records.
The following year the Data Protection Act was enacted. This included provisions enabling individuals generally to see what was recorded about them in computer records. Orders were made under that Act to add to the general safeguards in relation to social work records.
There are circumstances where it would not be right to grant access to all the available information, and I will explain those circumstances, but first I should emphasise that it should be exceptional for information to be withheld and, even then, it should be possible to release most of the available information, though some may need to be made anonymously to conceal the identity of a third party. For the most part, information held manually in social service records will become readily available. I hope that the House accepts that sentiment and the general principle running through our approach in these regulations. In framing the regulations, we have kept as closely as possible to the provisions of the data protection legislation and the guidance issued by the Data Protection Registrar who has been consulted about them.
Following a request from an individual, a local authority will have to tell that person whether it holds 933 information about that person and to give that person access to it. That includes expressions of opinion. Although the Act does not confer a right of access to any indication of the intentions of the authority towards that person, we have recommended authorities to let him or her know of them. Generally, it is good practise to do so in the course of an individual's continuing care rather than waiting for a formal request for access. We have said that this should be seen as part of a process of encouraging users of services to participate as far as possible in actions concerning them. Similarly, the Act only requires access to be given to so much of a person' record, before these regulations come into force, as is necessary to make the accessible information intelligible. We have advised authorities that there is likely to be significant advantage in them making available as much information as possible. That could lead to a greater clarity and understanding of an individual's background, especially in a child care case.
Access may be by supplying an individual with a copy of the information or by such other means, such as letting that individual see the information. lf, however, the individual, having seen the accessible information, requires a copy of it, he or she must be given one. If any of the information is not intelligible without explanation, the individual is to be given an explanation of it. That would apply if, for example, the authority holds the information in a coded or abbreviated form or if it is in professional jargon which cannot be understood without the key to the code of meaning. The explanation should be sufficient to make the information intelligible to people unconnected with the authority. In some cases the individual may still not be able to understand fully the information, but should be able to take it to another person for advice.
As I have said, the authority will be able to charge a fee of up to £10 for access at its discretion.
Some of the information which the authority holds may contain material provided by a health professional. Where this is the case the local authority will have to notify the health authority, or the health professional person, if not employed by a health authority within 14 days of receiving the request. Where either the health authority or the health professional says that access must not be given to the information, or part of it, the local authority is relieved of its obligation to grant access. The circumstances where a health authority or health professional may do this are when access is likely to give rise to a risk of serious harm to the health of the individual or another person, or where access would enable a third party—other than a health professional—to be identified, or for him to be identified as the source of the information. I sense that the hon. Member for Monklands, West (Mr. Clarke) will ask for the definition of a health professional. He will find it in the details of the regulations.
§ Mr. Bob Cryer (Bradford, South)
The local authority will have a great deal of work to carry out. Is the Minister satisfied that the £10 fee—that is the maximum sum; the local authority might wish to charge less—will cover the cost of carrying out the work? If not, will the Minister provide money for local authorities to ensure that the regulations are carried out?
§ Mr. Freeman
The earlier intervention dealt with the effect of the regulations on the person making the application and the hon. Gentleman is more concerned about the financial consequences for the local authority. Clearly the local authority will look at the financial implications of the regulations by averaging the cost implications of all the applications made during the course of a financial year. It is not possible to guarantee—
§ Mr. Freeman
I am still trying to answer the hon. Member for Bradford, South (Mr. Cryer). If the hon. Member for Bolsover (Mr. Skinner) will contain himself, I shall reply as fully as I am able to his hon. Friend who is trying to elicit information from me in order to inform the House of these important regulations.
The local authority will consider the financial implications by averaging the number of applications made during the course of a financial year. Hon. Members will not expect me to give a guarantee that the cost of local authority personnel in preparing an answer to a particular access question will be covered. But during the course of a financial year I am sure that a local authority will look at the average costs. As I said earlier, it is open to a local authority to abate or waive a charge if the local authority believes that a certain category of residents in the local authority area deserve such treatment.
The local authority may withhold other information in certain circumstances. We have told authorities that that decision should be taken at senior management level. Information may be withheld because of a risk of serious harm to the health or emotional condition of the individual or a third party. We have said that withholding information on that ground would be most exceptional.
Information may also be withheld because the identity of a third party, other than a member of the staff or a paid carer, would be revealed or could be identified as its source. The local authority is required to notify a third party of the receipt of a request for access and to seek consent to access, but access may not be given without that consent unless the information can be made anonymous.
§ Mr. Skinner
The Minister said that the charge can be up to £10. Will that figure be a straight poll tax right across the board for everybody who wants access? What happens if at the end of a year a local authority discovers that the charge that is has levied is not sufficient to meet all the costs? Will the Government make up the difference? Will the Government give advice, as they did on charges for eye and teeth checks, that some will pay and some will not on the basis of means? What will happen if a local authority fails to charge sufficient to cover its costs? Will the Government foot the bill?
§ Mr. Freeman
The generous rate support grant settlements announced by my right hon. Friend the Secretary of State for the Environment for all local authorities in the financial year 1989–90 are more than sufficient to cover the costs involved in bringing into effect the regulations that I have been describing to the House.
If the authority does not receive the third party's consent within the 40-day time limit, the authority has to give access to as much of the information as possible without revealing the other person's identity or that the third party is the source of the information.
935 The local authority may also withhold information where it is held for the prevention of crime; where it comprises reports which magistrates courts may withhold; where it is subject to legal professional privilege; or where disclosure is restricted by the law relating to adoption or special educational needs.
Children who have the understanding to make a request for access are entitled, like adults. in accordance with the general law, to see what is recorded about them. Where a child does not have this capacity, a parent or a person with the legal power to act as a parent in relation to the child will be able to make a request for access for information recorded about the child.
Detailed guidance has been given to local authorities about dealing with a request from or in relation to a child, along the lines of that given by us in respect of the data protection arrangements. The access regulations allow an individual aggrieved at being refused access to appeal to a committee of the local authority. This is, of course, additional to any general rights that the individual has to apply to the courts—for example, for judicial review—or, in the case of maladministration, to the local government ombudsman.
The access regulations, along with the corresponding parts of the data protection legislation, provide individuals comprehensively with a right of access, subject to certain specified safeguards, to the records of the local authority services involved, whether they are kept on computers or by traditional means. The legislation is contributing to the development towards greater sensitivity to the needs of individuals in delivering services and support.
I expect that these sensible regulations will have the broad support of all hon. Members. They are very much in sympathy with earlier statements by Ministers about the implications of the 1987 Act and the Data Protection Act, and I commend them to the House.
§ Mr. Tom Clarke (Monklands, West)
I am sorry that the Minister thought that I was attempting to intervene when I was merely shaking my head at his statement about the generous rate support grant. I had the privilege of visiting the constituency of my hon. Friend the Member for Makerfield (Mr. McCartney) a few months ago, and I discovered that his local authority was threatened with rate-capping. It had responsibilities in social services but could not carry them out. We do not want the Government to say, as a result of the order, that authorities will have to raise the money from some other aspect of the social services budget. I fear that many authorities will be in that position.
The order deals with access to personal files and social services obligations. It relates not just to the Data Protection Act 1984 but to the Access to Personal Files Act 1987 which was introduced by the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood) and has made such an impact on our discussions. The access provisions would allow people to examine records kept manually or in any other non-computerised form. It is true that good practice already exists in some local authorities, which are already preparing for the orders because they believe in the individual rights that the orders and the Act embrace. We cannot disregard this need. Local authorities and their associations rightly remind us time and again of the need for training so that they will have staff capable of 936 dealing with the problems of administration. All that must be adequately resourced. Following a request from an individual, the local authority will have to tell that person whether it holds personal information and give him or her access to it.
Other arrangements can be made to satisfy the rights of the citizen. The Minister has referred to the fee, and there has been an exchange about that. We understand that at the moment the maximum would be £10. There is in that a whiff of a means test. People should not have to satisfy a test of that kind to obtain information to which they are entitled.
§ Mr. Cryer
Does my hon. Friend agree that a local authority such as Bradford, which is Conservative controlled by virtue of the mayor's casting vote, will tend to charge the maximum fee while Labour—controlled authorities, keen on open government, will tend to impose lower fees? Labour authorities will then be criticised for devoting resources to providing a service that the Government urge them to support.
§ Mr. Clarke
My hon. Friend, with his experience of Bradford's newly-elected authority, will be proved right. The tragedy is that the Government will blame local authorities—saying that it is a matter of choice, and that local authorities are denying people the information to which they are entitled. In the absence of proper resourcing, we are entitled to make that charge.
§ Mr. Skinner
In the event of a Tory-controlled local authority, such as Bradford, being hell bent on charging maximum fees while a neighbouring authority charges, say only £2, the public and local authority employees may be so incensed that the information will be leaked for nothing. The Government are adept at leaks. Their files appear to be scattered all over Whitehall and Westminster, with people picking them up at will. Brown envelopes arrive in everyone's mail every other week. It is conceivable that someone offended by massive charges being imposed by a Tory-controlled authority such as Bradford may say to himself, "I feel sorry for the public—they have been mistreated already under the social services provisions and they need the information that I can provide." That individual may be tempted to release the information by using the system of leaking—the Westland form of leak—so widely employed by the Government.
§ Mr. Clarke
Bradford appears to be emulating many aspects of the Government's approach which we find unacceptable. I trust that in respect of leaks, Bradford's Conservatives will not be so foolish as to follow the Government's lead—otherwise they may find themselves in Europe. However, if I develop that point, you, Mr. Deputy Speaker, will instruct me to return to the subject of the debate.
The Minister spoke of exemptions from the general provisions of the order. He mentioned health, professional persons, and so on. Those are important exemptions, and when the Data Protection Bill was debated we learned the reasons for them. Nevertheless, we must be careful to avoid abuses and to ensure that the public fully understand why those exemptions exist.
We have the advantage of having previously debated a similar order in respect of Scotland. When the Minister replies, I hope that he will make more relevant responses 937 than did his hon. Friend the Under-Secretary of State for Scotland the Member for Stirling (Mr. Forsyth), who may have answered off the cuff but did not enter into the spirit of the Access to Information Act 1984 or of the order. On that occasion, there was a discussion about children's panels, which do not exist in Scotland. Perhaps the Children Bill will correct that omission.
We welcome the consultations that the Minister says have taken place, but I should like more detail than the outline given in the hon. Gentleman's introductory speech. Perhaps he will provide that later. Nevertheless, the order gives meaning to the Data Protection Act 1984. Social workers agree that it will lead to the provision of better records, and to more informed decisions by social workers. Such records are by their very nature complex, containing a mixture of opinion and fact and a great deal of third-party information, but some of this makes it difficult to open up such records widely to the public.
My hon. Friend the Member for Strathkelvin and Bearsden (Mr. Galbraith), who has considerable experience of these matters in the Health Service, made it clear that the Labour party is utterly committed to opening up medical records as well. Our commitment is based firmly on extensive consultation and, by agreement with the medical profession, ensuring all the necessary safeguards. If the Government have been involved in consultation to the extent that the Minister claims, can he tell us whether we are any further forward in opening up medical records even on a non-statutory basis? The House looks forward to his reply on that point.
The £10 maximum that the Minister suggested did not seem to be all that much but might be different for a person on income support. Happily there are councils, including Strathclyde, which have decided to exercise their discretionary power and say there will be no charge at all, and it may be that even Bradford will catch up on that laudable approach. What is interesting—the Minister referred to this—is that the DHSS does not plan to charge for similar information under the Data Protection Act 1984. The Minister might consider whether charges mean that we are putting up a barrier which might prevent some people, perhaps many people, from seeking the information to which they are entitled.
§ Mr. Andrew F. Bennett (Denton and Reddish)
Does my hon. Friend accept that many such people will be young people in care, who would naturally turn to those responsible for that care—the social services department—to come up with the fee? It should be absolutely clear that anyone up to the age of 18 who is being financed by the local authority ought not to be charged.
§ Mr. Clarke
I entirely agree with my hon. Friend. He has made the point that very often the people most in need of information and with the greatest right to have access to it will be penalised because they simply cannot afford to get it.
The Minister has confirmed that 1 April will be the date of introduction of this measure. The lead-in time seems rather short and notwithstanding the consultations there are bound to be difficulties with third parties, professionals, and so on, who may not necessarily be acquainted with the obligations. I wonder just how difficult that timescale will be seen to be.
938 The Minister used the expression "serious harm" yet again today. Serious harm and, indeed, harm in itself really ought to mean that we have a clearer definition of what is involved. We are being told that people cannot have access to information because it would lead to serious harm according to somebody's interpretation. We are entitled to know whose interpretation it is, where the expression arises and how meaningful serious harm will be in application.
Does the Minister agree that the 40-day rule could definitely cause problems, for example if the consultant was on holiday? If no reply is given within 40 days it is accepted that the information can be made available, but the consultant, on reflection, might not have wished that.
The Under-Secretary of State, when responding to this point in the Scottish debate, said that another consultant could give an opinion, but the other consultant might not be so aware of the circumstances as the consultant dealing with the case. Therefore, although we endorse the principle that there be a number of days allocated, it is important that the Minister should monitor that. I raise this constructively if only because it is right to bear in mind the views of the applicant, to whom 40 days may well seem a very long time.
§ Mr. Skinner
There could be a further complication. My hon. Friend has referred to consultants and the 40-day period. We heard a few days ago that the Government intended to introduce new proposals for hospitals and others to opt out. That will affect consultants very seriously. Is it just conceivable that the order could be overtaken by a Bill changing the procedures affecting consultants? Might not the whole arrangement, in certain circumstances, become deformed?
§ Mr. Clarke
I have no doubt that my hon. Friend, with his sharp intellect, has identified yet another possible defect. It would not surprise me in the least if we saw such examples.
The financial burden on local authorities is obvious, but even if pilot schemes are to take place the Government have given no indication of their global thinking or their attitude to proper resourcing. Will the Minister look sympathetically on requests that he receives from local authorities anxious to carry out their statutory duties and to respond to individuals' right of access to information? Have the implications of the regulations been discussed with the Central Council for Education and Training in Social Work? Certainly everyone involved in social work takes the view that training is important. New obligations are being placed on social workers. They are the subject of constant unfair criticism, and I think it right that we should ask whether that body has been asked for its opinion.
What are the implications for the voluntary agencies? Again, there must be cost implications. I trust that a Government who claim to believe in "voluntarism" have taken that point on board.
In the earlier debate one of my hon. Friends referred to the number of mentally handicapped and mentally ill people in prison. Perhaps we should also hear about any problems and costs imposed on the prison service.
The regulations do not seem to lay an obligation on local authorities to notify people when parts of the record are withheld. In my view, people should know when information is not complete. The Data Protection Act 939 1984 provides a right of appeal first to the registrar and then to the courts. I invite the Minister to deal with that in his reply.
The hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood), who introduced the Access to Personal Files Act 1987, must feel somewhat disappointed. Clearly even the regulations as presented by the Minister are bound to lead to delays and extra costs. I wonder whether they reflect properly the spirit of the Act and the fact that it was so well received by the House. There are times when I feel that the Government display indifference, if not at times hostility, to Acts that are on the statute book as a result of the activities of private Members. That is most unfortunate. That Act, in common with others, arose because of the will of both Houses—reflecting, we hope, some measure of democratic input—and the Government should respect such views.
§ Mr. James Wallace (Orkney and Shetland)
As previous speakers have pointed out, the regulations implement provisions of an Act piloted through the House by my hon. Friend the Member for Roxburgh and Berwickshire (Mr. Kirkwood), who deserves much credit for his dedication and application—although I am sure that he would acknowledge that he received widespread support from both sides of the House.
It should also be acknowledged that the Government have stuck reasonably closely to the timetable that was envisaged. The end of 1988 was given as the first date when these instruments would be introduced, and April 1989 does not represent too much slippage.
Exemption on the ground of serious harm represents some progress. I share the reservations of the hon. Member for Monklands, West (Mr. Clarke) about how that will be defined, but the fact that it is "serious harm" rather than, as originally proposed, simply "harm" is a step forward. Had it remained as "harm", a coach and horses could have been driven through the provisions.
When the measure was going through, there were, among many other areas where access to personal files was sought, calls for access to personal files in respect of education and further education. That call was withdrawn on the understanding that separate powers already existed in legislation which would enable the Government to bring forward in due course similar instruments for information to be made available in those circumstances. When does the Minister hope to publish that instrument—I understand that a consultation paper concerning schools has already been issued—and when will it come into force?
We should emphasise the significance of what we are doing. It is fundamentally right that people should see what is recorded about them on social services records. Apart from anything else, it gives them an opportunity to detect and correct mistakes which, if they were allowed to remain on the record unamended, could be damaging and not be in their personal interest. It allows them, one hopes, to have more say in decisions that might affect them. It acts as a discipline on those who keep records in that, hopefully, they will be more objective in what they record, avoiding unfair comments which, if put to the test, could not readily be substantiated.
It is regrettable that we are going about these matters in a piecemeal fashion. The Act and these instruments give rights to the citizen in regard to manual records which, in 940 most respects, already exist for computerised records under the Data Protection Act 1984. So we have that Act for computerised records, these provisions for dealing with social services records, and another instrument, to which we shall come, relating to housing. Even so, that does not cover all the areas where one would like to have better access to information on individuals.
The instrument now before the House does not relate to local education authorities. welfare services or school psychological services. My hon. Friend's Act did not extend to housing associations, not because of any lack of desire on the part of my hon. Friend but because he realised that if he was to get his legislation through, it had to be in narrower terms that he would have liked.
Bearing in mind that, in the last Session, my hon. Friend succeeded with a measure covering medical records for employment and insurance purposes, it is clear that hon. Members in all parts of the House will continue to introduce or support private Members' Bills to extend the rights of the individual to have more information—and, in this case, information about themselves. It is regrettable that there could not be more general acceptance of the need for that so that it could be included in a global Bill, rather than having to proceed in this piecemeal fashion. We live in hope.
In his introductory remarks, the Minister referred to medical records and said that discussions were still taking place. I understood him to say that if progress was not made in the near future, he would intervene personally.
It is regrettable, too, that almost two years have elapsed since the then Minister of State, Home Office, now the Patronage Secretary, said in Committee on 1 April 1987:If more openness is what hon. Members on both sides of the Committee want, they should know that they are pushing at an open door. The Government and the profession are in favour. Therefore, I am willing to give an undertaking today on behalf of my colleagues with responsibilities for health that they will enter into talks with the medical profession at an early stage with a view to achieving substantive and timely progress in opening up medical records further on a non-statutory basis."—[Official Report, Standing Committee C, 1 April 1987; c. 60.]Perhaps something has got stuck behind that open door—perhaps it is still ajar. I hope the Minister will give it a good push. We have waited a long time, and it would he interesting to know where the log jam originates. If the Minister cannot give us a timetable for introducing a scheme, perhaps he will tell us how long he is prepared to wait before intervening personally. We are due a better and fuller explanation of what is going on.
Of course, in some circumstances it will not be in the interests of a person that full information should be given out. Serious harm could result in some cases. But it would be helpful to know whether the information given was all the information being held. The regulations do not provide for that, but it should be encouraged as a matter of good practice.
I also have serious reservations about the review of decisions in paragraph 11. If one is dissatisfied with a decision, one can appeal to a committee composed of three members of the same authority that made the decision. That conflicts with the Data Protection Act 1984. Much has been done to try to keep these two legislative spheres in parallel. Under that Act, people have recourse to the registrar and then to the courts. The Minister said that a person who is dissatisfied can take his case, by means of judicial review, to the courts, or appeal to the local 941 authority ombudsman. However, those are cumbersome courses of action, and not as simple for a person who is anxious for information as direct recourse to the courts. Practice may show this up as a weakness in the regulations. If so, I hope the Government will think again.
I have already brought up the issue of the £10 fee in an intervention. The legislation has compelled local authorities that might otherwise be dilatory and reluctant to provide social services information to adopt the good practices that are already practised by many others. Many authorities have adopted the 1983 circular encouraging them to good practice—but that guidance did not mention fees. Local authorities often give information without charging, and it would be regrettable if they now used their option to charge. Those most likely to need to call on social services departments for information will often—not always, but I suspect a strong correlation—be people in the lower income brackets.
In his reply to my intervention the Minister indicated that it would be possible for a local authority to waive or abate a particular fee. That, so far as it goes, is quite welcome, but it opens up the quite clear possibility that local authorities will have to introduce some rather complicated guidelines of their own to deal with the circumstances in which a fee may be waived or abated. It will involve at least some minor degree of means-testing, and I think it would be very preferable if no fee at all were to be charged. That would certainly be far simpler, and, as I have said already, would continue the practice that, in many cases, exists already.
The fee is charged for application and it is retained even if the applicant gets no information. This could cause considerable annoyance if, having paid the fee, one got no information, either because it had all been withheld or because there was no information there in the first place. It might have been fairer if the fee had related to information given—if there were to be a fee at all.
It is my understanding—and the Minister can correct me if I am wrong—that in addition to the fee of up to £10 that can be charged for manual records, access to which is covered by the present regulations, a £10 fee can be charged for access to computerised records under the Data Protection Act. If one's records are both held manually and computerised there is the possibility of having to pay£20. There would appear to be a possibility of an—I was going to say "anomaly", but that is not the word—of double-charging. Of course, we cannot amend this instrument, but the Minister could consider for the future whether it might be possible to have one complete fee of £10 to cover both. That would be an advantage.
We certainly welcome these regulations. The Act which my hon. Friend did so much to get on the statute book is now moving to the stage where it will come into operation. I have indicated a number of areas in which it will come into operation in a manner that is not as satisfactory as we should like. Further, it relates to a more limited area than I know my hon. Friend would have liked to see. None the less, the regulations are welcome for going as far as they do.
§ Sir Michael McNair-Wilson (Newbury)
I should like to question the Minister briefly about paragraph 10 of the regulations. The erasure of inaccurate information raises in my mind the question of what privilege is enjoyed by those whose opinions will be made available to the person who has asked to be allowed to see his personal records.
One naturally thinks that the right to see one's records is a sign of openness and that there is nothing to hide, but I often wonder whether we are not too easily led in the view that merely seeing what is written about oneself will somehow enlighten one without raising doubts in one's mind or, conceivably, according to one's temperament, a feeling that somebody has written something about one that is distasteful which impugns one's honesty or one's honour. I wonder, therefore, whether it might not actually do more harm than good.
People talk about their desire to see medical records. I certainly do not want to see my medical records. I do not want to know what my consultant thinks about my life expectancy. I might get a nasty shock, which I would rather not have. However, since we are now talking about social security, that is perhaps an argument for another day.
On the question of inaccurate information, or an opinion that the person reading his records does not like, what protection is given to those who have provided that information or expressed that opinion? Would it be possible for a person, having seen his personal record, to he in a position to allege that it represented a libel on his character?
My hon. Friend the Minister took some trouble to explain to us that it was possible that certain information could be retained by the authority on the ground that it might be harmful to the recipient. That is an essential safeguard. Nevertheless, if frank and honest opinions are to be given and placed on a record—that may be an important consideration if the records are to have any validity for those who are to use them—there is always a danger that those opinons will reach the person who has asked to see his personal record, and who may rightly judge from the remarks that a libel has been written and that he has therefore been damaged.
How do we safeguard the person who writes the opinion? Is it written into the regulations and have I missed it? Do the regulations convey a certain privilege for those who write the opinions? If not, will we fall into the situation where records will be so anodyne that they will not be much use to the social security service which may want to use them and will be written simply because somebody—the person whose records they are—will see them, or will the records continue to perform the role that they have performed in the past as a valuable guide which, due to their confidentiality, could contain all the information and opinions that were felt necessary to assess a person and his position? I hope that my hon. Friend can reassure me about paragraph 10. I look forward to hearing what he has to say.
§ Mr. Harry Barnes (Derbyshire, North-East)
I wish to raise two points, one about whether the regulations deal carefully enough with the handling of sensitive information and the other about resources. The right of access to information is important, but it is recognised in the 943 regulations that it cannot be an absolute right. The information about an individual might reflect upon a third party and the third party information should not be readily available to the first person.
On exemptions, paragraph 9(4) refers toinformation … held by the local social services authority for the purposes of—The paragraph says that that information would not be made available. Is that provision tight enough? If the case work of a social services department involved child molesting, the detection of a crime, the prevention of a crime or a potential prosecution might not take place because, although the social services department had a great deal of information, it could not take action. Are the regulations tight enough to cover such a case? Other hon. Members may put forward better cases which do not refer to the molesting of children.
- (a) the prevention or detection of crime, or
- (b) the apprehension or prosecution of offenders".
The other question I wish to raise concerns resources. Local authorities have been under considerable pressure generally for some time with cuts in the rate support grant, quite apart from recent adjustments. In Derbyshire, for instance, we have something known as "grant capping" as well as rate capping in other areas. It might be that in quite difficult financial circumstances these regulations will be acted upon, systems will be set up, and the next stage will be that the poll tax will come into operation, with all the difficulties that involves. Already in Scotland the poll tax levels are much higher than was suggested by the Minister, and that is likely to happen in England and Wales as well. The difficulty will be that procedures may be established for which funds could be found by local authorities, but at some later stage the whole system will fall into disuse because of the great financial burdens being placed upon them. I really think some financial provision should be made by Government in order to see that the system works properly.
It has been suggested that the £10 fee, which is the maximum, could in some cases prevent certain people using the system. I think it is quite likely that the costs in many cases will he at the £10 level, or even more, because of the areas involved. Local authorities may reduce the fees, but it is likely that some local authorities will be faced with far greater pressure to reduce fees than others. It will depend what the demand for information is.
It is quite likely that access to information legislation will be used more by middle-class people, who are much more aware of their rights and know the procedures involved. It might be appropriate for them to pay a £10 fee, but in many working-class areas, with progressive authorities providing full information as to what becomes available, the practice will be extended, or would be if the funds were available for it to be done.
I just want to look at the different areas involved in this to get some idea of what will happen in terms of the complexity of the measure and the fees authorities are likely to find themselves involved in. The procedure for requesting information is laid down in section 3. It might be that, when the procedure is pursued, insufficient information has been required and the matter has to go back to the people who initially made the application. There are various time limits in which information has to be sought. Then there is the whole complex area about 944 exemptions, both in terms of personal health information from health professionals and the other exemptions, partly referred to in section 10.
Turning to the procedure for the erasing of information, the hon. Member for Newbury (Sir M. McNair-Wilson) raised the point about the erasing of opinions. I would like the Minister to say how far that actually applies within section 10. Is it the case that when it says information is to be erased, that is supposed to apply to factual information, empirical detail which can be checked as being true or false, as distinct from judgment and opinion, even though it might be very reliable judgment and opinion, on which it is not possible to use empirical techniques? Is the entire material erased? If the empirical information is erased, perhaps there would be nothing for the value judgment to latch on to.
Finally, there is a review of possible decisions and appeals against provisions. Therefore, the procedure involves great complexities which are likely to become extremely expensive. I believe that we should spend large sums of money on civil liberties and democratic rights and procedures so that people can exercise those rights, but the local authorities need to be in a position to operate the system.
§ Mr. Harry Cohen (Leyton)
The instrument about access to personal files relates to freedom of information and freedom to information. I agree with some of the anxieties that have been expressed from both sides of the House.
First, I wish to refer to the £10 fee that can be incurred under the Data Protection Act 1984 and under the instrument. I believe that it will create all sorts of problems, a couple of which have already been mentioned. The hon. Member for Orkney and Shetland (Mr. Wallace) raised the very good point about manual files costing £10 in addition to computer files so that a £20 charge could be incurred. Under the Data Protection Act, Government Departments set up all sorts of files. They could charge £10 for access to each file so that in some cases a fee of hundreds of pounds could be incurred. What is to stop a local authority setting up all sorts of files within its social services department and then charging £10 for access to each file? It is difficult enough for the person seeking the information to know which file to ask for, so he would have to ask for them all and pay the fee for the lot.
§ Mr. Wallace
I am sure that the hon. Gentleman will acknowledge and give credit to the Department of Social Security which does not charge a fee for access to its computerised files under the Data Protection Act. One hopes that local authorities will follow that example.
§ Mr. Cohen
I certainly hope that other Government Departments will follow that example, but we cannot be sure that they will. The £10 fee is a dangerous issue because social services departments deal with some of the poorest people in the community to whom £10 is a lot of money. The £10 fee will effectively stop those people getting access to their files. The system will be unfair on individuals with similar cases as it will vary from area to area as one authority takes an enlightened view and makes no charge and another authority charges the maximum £10. That is not a fair way to deal with individuals. Therefore, the Minister should think again about the fee.
945 As the Minister said, there is broad agreement that there should be access for individuals about whom the records are kept. But he went on to list a whole range of exceptions. For example, health authorities have only to say that a case is an exception and it automatically becomes one. I believe that that is wrong. Why should a health authority have more rights than a local authority social services department? They are both dealing with sensitive problems, so why should health authorities have more rights to secrecy? In many cases, they are already excessively secret and that is wrong. At least local authorities have democratic representatives—councilors£whom individuals can lobby for information, but they do not have such a right with the health authorities. The exception for health authorities is too blanket an exception.
Why have health professionals got special blanket privileges? Under the schedule, even people such as chiropodists, art therapists and music therapists have only to say that the information cannot be made public for people to be stopped from obtaining the information that they want. That is ridiculous. The schedule should be more carefully thought out than that. An ingrowing toenail should not be sufficient to prevent a person from getting his social services records.
Where information is specifically given by a doctor or other health professional on a confidential basis, there is possibly a good reason for the exemption applying. But I remember the Cleveland case. The Minister should have addressed the exemption in relation to that case because the parents who were aggrieved and trying to obtain justice for themselves thought that it was the health professionals who were to blame. They would not be helped by the regulations because the health professionals still have a special privilege of secrecy. Such parents would not obtain the information they wanted from the files, but would have to rely, yet again, on trying to force a huge public inquiry. They could not even rely on the courts to obtain information because another of the exemptions is the magistrates courts under the Magistrates' Courts (Children and Young Persons) Rules 1988. They would be blocked there and that is another exemption stopping people from obtaining information in cases of acute concern affecting their own children when their rights to look after their children had been impugned. A parent often needs to have access to the social services department's information on the case in a magistrates court to fight a child care order that they feel is unfair and to challenge the social services, or at least be able to present their case. The exemption will prevent them from doing that.
The Minister mentioned another exemption in cases in which the social services department felt that trauma or emotional damage could be caused. The Minister said that that would be used in rare cases to stop information being given, but it seems to me that that could apply to almost all social services cases. If a social services department wanted to be bloody-minded, it could use that exception in all cases and it would become a commonplace excuse to stop people obtaining information. It could be an enormous loophole, and the Minister should consider that. If the exemption is likely to be abused, the Minister should take action.
946 Another exception in which people cannot obtain information to which the Minister referred was cases in which a third party was identified as the source of information. Again, there could be a genuine case in which the third party should not be identified, especially in a child abuse case, and we all accept that people should not be discouraged from reporting serious child abuse. Again, there should be the right to challenge, perhaps in a court, because it may be that a third party is unreliable or even malicious and that, because of the use of the exception, the individual affected does not have the chance to challenge.
The final exception that I shall raise is what the Minister called the "legal profession's privilege". Exactly what does that mean? After all, several Conservative Members have signed a motion seeking to get rid of the closed shop. This sounds like a closed shop. Why should the legal profession have a right of exemption over what information people can find out about themselves from their files? I cannot envisage what the Minister's phrase means, so will he please explain it?
I appreciate the Minister's point about the local government ombudsman. I think that we should extend that provision to the health ombudsman so that people who want to complain about health authorities or health professionals unjustly denying them access to their information can go to the health ombudsman.
I agree with my hon. Friend the Member for Monklands, West (Mr. Clarke) and the hon. Member for Orkney and Shetland that there should be a proper appeals arrangement with the data registrar. Under the Data Protection Act 1984, for example, the data registrar can investigate and the courts can also become involved. A proper appeals procedure should be available.
§ Mr. Ian McCartney (Makerfield)
Like my hon. Friends, I welcome the opportunity to discuss the regulations, and the fact that the Government are prepared to put into operation provisions that will, for the first time, give a great deal of access to clients who, in the past, have been wronged by information in their files which, in many instances, had been secured for legitimate reasons by social services departments because the nature of the information in the files acted to the detriment of clients and their representatives.
In these days when we are trying to persuade people to come forward with cases of abuse—whether physical, sexual or mental—we are sensitive to the way in which the guidelines are operated. Will the Minister therefore tell us what additional provisions there will be for training social workers in the provision and presentation of information? It is essential for the operation of access to personal files that social workers, social services departments and those involved with the files and the information in them can interpret them properly and give a clear understanding of their objectives, of the information required and of the way in which the information is provided. Unless there is training in the provision and preparation of information, the wrong information could be provided, to the detriment of the physical and mental health of the individual concerned, or it could be used as an excuse for not providing information that should be provided.
I will give the Minister some examples of cases with which I have been involved, either as a Member of Parliament or in my previous occupation in personal social 947 services case work. The information that I provide is confidential and will not be presented to attract any publicity for the individuals concerned, nor does it present any criticism of those involved with the cases. It simply shows how the system as currently operated breaks down and where the personal files provisions could assist in ensuring, I hope, that such cases will not occur in the future.
The first case involves a mother and daughter relationship. A health worker notified the social services department that the unmarried mother was commencing a relationship with a gentleman known to have suffered mental illness in the past. Although she felt that there were no signs of mental illness now, she felt that a serious relationship between that man and woman could be detrimental to the child's development. The mother was then approached by a case worker from the social services department, who advised her that that report had been submitted. The mother's views were then sought about the relationship. She openly admitted that the relationship was continuing and developing and that she was not prepared at that stage to indicate to the care worker, or anyone else, that the relationship would end.
A report was immediately initiatied by the social services department, which included the suggestion of removing the child from the mother. The report concluded, however, that there was no evidence of physical abuse to the child by the mother or by the gentleman. There was also no evidence from the child's voluntary play school, other than that the mother was an excellent mother, and there were no problems with the child's development, physically or mentally. Yet three months on, that child was not only removed from the mother—without any access to information as to why that should have happened—but was offered for long-term fostering. Absolute access was refused by the magistrates on information submitted by the social services department. Because a third party provided information about that mother's relationship—which was subsequently found to have no real substance in the mind of the care worker concerned—the mother was separated from her child. The child was offered for long—term fostering by the social services department concerned, which one assumes would lead to a complete breakdown in the relationship between mother and child and the child then being offered for adoption.
The second case relates to a couple applying to the local authority to become foster parents after seeing an advertisement in the local paper. This is a mature couple, with two teenage daughters and a young lad of seven or eight. After extensive investigations by the local authority, the parents were advised that all that the local authority was waiting for were reports from the local police and from their former local general practitioner. The parents were told, however, that the local authority was so satisfied with the arrangements that an introduction to a handicapped girl would be facilitated for a couple of weekends so that they could all get to know each other. The intention was that that handicapped child would be fostered by the couple. The weekend prior to the fostering arrangement being formalised, a social worker went to the family home and advised the parents that one of the reports for which they had been waiting contained information such that the authority could no longer proceed with their application to become foster parents.
948 The result was a horrendous situation in which the couple believed that one or other or both must have concealed from each other in formation about their past so mucky or detrimental as to prevent them from fostering a child. Naturally, that affected their relationship.
After further pressure, the social services area director met the couple and reassured them that the authority intended to take no action with regard to their own children. The authority accepted, and did not retract the view, that the couple were excellent parents to their own children, but due to third-party involvement it could not give any indication of the reasons why at the 23rd hour it had rejected the couple's application to foster a child. The arrangement to seek information, a qualification of information or to have information amended is essential in such cases.
I cite the further example of a single mother involved in care proceedings. An anonymous telephone call to a local authority initiated an investigation of whether the mother was abusing her child—not physically or mentally, but that she was leaving the child on its own. Initial inquiries revealed that the allegation was unsubstantiated, but in the interim investigations it was discovered that the mother was associating with a gentleman whom the local authority had on record as possibly having been involved in the abuse of a child. On the basis of that information, the child was removed from the mother and remains in local authority care.
Personal files often contain subjective—sometimes highly subjective—comment and third-party comment may be highly irregular. An anonymous contribution might be regarded as substantial despite the fact that initial investigation might show that it was unsubstantiated. Anecdotal information may take on a significance that it should not have. Access to files should be given at the earliest opportunity, particularly when files go before case conferences, and it should be possible to challenge information provided by outside agencies. On many occasions disruption to a family's life occurs at the point when information is submitted to a case conference at which parents may be inadequately represented or not represented at all.
Access to personal files should be implemented in such a way as to protect the client and, in many instances, the children. It should also be borne in mind that in many instances outrageous decisions are taken which destroy the fabric of ordinary decent families, disrupting their lives, and they have no redress because they cannot challenge the information contained in the files. Therefore, I welcome the regulations.
§ Mr. Freeman
In the approximately six minutes that remain I shall seek to answer some of the points raised.
The hon. Member for Monklands, West (Mr. Clarke) referred to the means test. I stress again, as I pointed out when I opened the debate, that the sum of £10 is a maximum discretionary amount. It might be for the convenience of the House if I draw attention to the guidance notes issued to local authorities. In those we have said that authorities will no doubt take into account the applicants' ability to pay. That discretion is commendable and gives flexibility to local authorities.
Secondly, the hon. Gentleman asked about staff, training and allied costs and resources available to local 949 authorities. As the House will know, local authorities have been well aware since 1983—some six years—that we were encouraging access to information for local residents, so local authorities should have been putting into practice over the past five or six years access arrangements.
We have always encouraged open access. Many social services departments already operate open access policies. They have trained their staff and reorganised their records appropriately. Because they have been taking such steps over five or six years they have incurred and met expenses out of available resources—from rate support grant and rates.
The hon. Gentleman also asked about consultation, an important point. I can confirm that we have spoken to the Central Council for Education and Training in Social Work and have stayed in close touch. He asked about the other bodies that we have consulted. There are some 40 of those. If he writes to me asking me to detail them I shall be happy to do so.
The hon. Gentleman also asked about the timetable for action. We issued a draft circular in January making it clear that Parliament needed to approve the regulations. Therefore, three months will have elapsed before the regulations come into effect. The most important point to make is that the general principle of open access has been in existence since 1983, so local authorities have had plenty of notice. We are simply bringing to a conclusion tonight a long process of encouraging open local government.
The hon. Member for Monklands, West also asked me who will decide on the issue of serious harm, and how it will be defined and who will interpret it. The way in which such decisions are made will depend on individual circumstances, but we have emphasised that such exemptions will be the exception and will relate to exceptional cases, and will not be used frivolously or lightly. It is important to be aware that it is also a safeguard for many clients and third parties.
The hon. Member for Orkney and Shetland (Mr. Wallace) raised several points. I hope that I have dealt in part with his first question relating to the definition of serious harm. He asked me when the Government planned to publish other regulations and bring them into force. For example, he talked about housing associations, which are the responsibility of the Department of the Environment, and access to school records, which is the responsibility of the Department of Education and Science. I am sure that he would not expect me to comment on when these other Departments had plans to publish regulations, but I will ensure that the record of the debate is brought to the attention of my colleagues in those other Departments. The hon. Gentleman would not expect me, as a Health Minister, to do other than relate my remarks to the regulations dealing with social service departments.
The hon. Gentleman asked me about medical access. I hope that I gave the House a clear assurance about my proposed consultations with the medical profession. If progress is not immediately forthcoming, he asked me to set a timetable for that. I am loth to do so, except to assure him, and the hon. Member for Monklands, West who is equally interested in this subject, and to repeat the assurance I gave at the opening of this brief debate, that I take the matter seriously. Promises were given by my right 950 hon. and learned Friend the Parliamentary Secretary to the Treasury. I shall bring the matter to a successful and early conclusion.
The hon. Gentleman also asked me about the appeal mechanism. It is certainly true that appeals are made to a local authority, but there is a general right of any citizen to appeal under, or about, the regulations and how they are implemented to courts of law and to the local authority ombudsman. The hon. Gentleman recognised that and pointed that out. This is not a right of appeal to, so to speak, an internal committee of the local authority. It is not the end of the road of an individual's right to appeal.
The hon. Gentleman asked about double charging. I think he has a point, although it may be theoretical rather than practical. I shall reflect on it. Social security departments are not obliged to charge for access to computer records under the Data Protection Act 1984. The hon. Gentleman has drawn my attention to a potential anomaly which I shall certainly reflect on—
§ It being one and a half hours after the commencement of proceedings on the Motion, MADAM DEPUTY SPEAKER put the Question, pursuant to Standing Order No. 14 ( Exempted Business).
§ The House divided: Ayes 72, Noes 1.
|Division No. 83]||[1.38 am|
|Amos, Alan||Hunt, David (Wirral W)|
|Arbuthnot, James||Hunt, John (Ravensbourne)|
|Ashby, David||Irvine, Michael|
|Barnes, Harry (Derbyshire NE)||Jack, Michael|
|Beith, A. J.||King, Roger (B'ham N'thfield)|
|Bennett, A. F. (D'nt'n & R'dish)||Knapman, Roger|
|Bennett, Nicholas (Pembroke)||Knowles, Michael|
|Boswell, Tim||Lee, John (Pendle)|
|Bowis, John||McCartney, Ian|
|Brooke, Rt Hon Peter||Maclean, David|
|Bruce, Malcolm (Gordon)||McLoughlin, Patrick|
|Burns, Simon||McNair-Wilson, Sir Michael|
|Butterfill, John||Moss, Malcolm|
|Carlisle, John, (Luton N)||Moynihan, Hon Colin|
|Carrington, Matthew||Neubert, Michael|
|Carttiss, Michael||Norris, Steve|
|Chapman, Sydney||Paice, James|
|Chope, Christopher||Porter, David (Waveney)|
|Coombs, Anthony (Wyre F'rest)||Shaw, David (Dover)|
|Coombs, Simon (Swindon)||Shaw, Sir Michael (Scarb')|
|Gran, James||Shepherd, Colin (Hereford)|
|Davies, Q. (Stamf'd & Spald'g)||Skeet, Sir Trevor|
|Davis, David (Boothferry)||Stern, Michael|
|Dorrell, Stephen||Stradling Thomas, Sir John|
|Durant, Tony||Summerson, Hugo|
|Favell, Tony||Taylor, Ian (Esher)|
|Fishburn, John Dudley||Taylor, Teddy (S'end E)|
|Freeman, Roger||Thompson, Patrick (Norwich N)|
|Garel-Jones, Tristan||Twinn, Dr Ian|
|Gill, Christopher||Waddington, Rt Hon David|
|Gregory, Conal||Wallace, James|
|Griffiths, Peter (Portsmouth N)||Wardle, Charles (Bexhill)|
|Gummer, Rt Hon John Selwyn||Widdecombe, Ann|
|Harris, David||Wood, Timothy|
|Howarth, Alan (Strat'd-on-A)||Tellers for the Ayes:|
|Howarth, G. (Cannock & B'wd)||Mr. Kenneth Carlisle and|
|Hughes, Robert G. (Harrow W)||Mr. John M. Taylor.|
|Cohen, Harry||Tellers for the Noes:|
|Mr. Bob Cryer and|
|Mr. Dennis Skinner.|
§ Question accordingly agreed to.