Access to Personal Files Bill

HL Deb 08 May 1987 vol 487 cc398-409

2.20 p.m.

Lord Tordoff

My Lords, I beg to move that this Bill be now read a second time.

It is the proud boast of the Liberal Party, which is enshrined in the preamble to its constitution, that its aim is to create a society, which in all things sets freedom first. Therefore noble Lords will not be surprised to see a Bill of this sort coming from the Alliance Benches dealing with what, I believe, is one of the most compelling elements of individual freedom; namely, freedom of information and particularly the freedom of individuals to have the right to know what has been recorded in documents about themselves and, furthermore, the right to correct any wrong or inaccurate information.

But I hasten to say that this is not a party Bill. It was introduced as a Private Member's measure by my honourable friend the Member in another place for Roxburgh and Berwickshire, Mr. Archy Kirkwood, who had the good fortune to come high in the ballot for Private Member's Motions. It does him great credit that he chose this subject. It also has had all-party support throughout the length and breadth of its discussions in another place. I have every hope that it will receive similar support in your Lordships' House today.

It has also had a very considerable amount of support from organisations outside. I have here a list of people who were supporters of the original Bill, which includes organisations such as the Association of County Councils Policy Committee, the Association of Distict Councils, Scottish Local Health Councils, the British Association of Social Workers, the Child Poverty Action Group, the College of Health, the Howard League, and so on. So it has had very wide support in the country as well, and indeed by the time it got to Second Reading in another place more than 140 organisations had said that they supported the Bill.

The principle which this Bill deals with is already enshrined in legislation where computer records are involved, and from November this year the Data Protection Act will, as noble Lords know, allow individuals to seek personal information held about them on computers. It has therefore been an anomaly that similar information held in ordinary files does not come within the terms of that Act. Indeed—and your Lordships will remember that this was raised when the Data Protection Act was being discussed—it provides something of a loophole through which people can get away from the terms of that Act. So for the first time this Bill which is before your Lordships today extends this right to cover manually held records.

Unfortunately it only covers a few classes of records—far fewer than the Bill when it was originally drafted covered. I shall come back to that in a few minutes. The main benefits of the Bill are that it enables people to keep themselves fully informed about steps that an authority is taking in relation to them. It provides the basis for a more equal relationship between the individual and the authority or professionals with whom he or she deals and it provides the opportunity to detect errors—I believe that this is one of the most important aspects of the Bill—which might otherwise be acted on by officials who have no direct knowledge of the person involved.

One of the classic cases—it is a question of medical records, which are not now covered in this Bill, but it is a good example of the sort of thing that can happen —was that of Helen Mann, who is a 26 year-old chef. She was astonished to find that her GP accused her of being a heroin addict. She did not realise at first that he was serious and she became anxious when she found that errors had been passed to him in the medical notes of her former GP. It took her many months to discover that a drug addict had been impersonating her at her former GP's practice.

Included in the notes were four references to drug addiction and another reference to a hepatitis episode at Charing Cross Hospital. Fortunately, she was able to show that at that time she had not been in the country. As a result, she was recently allowed access to the records. However, she expressed anger at the fact that it took 10 months and 17 letters before she was able to find out what was causing the problem. That is one occasion when errors were detected. There are many cases involving medical and other records where people do not know that errors have been put into files of which they know nothing.

The other benefit is that the Bill is a safeguard against poorly thought out or unfair comments being recorded. If we were talking here about doctors or social workers putting their own private thoughts about someone into a private diary, I should not have much objection. But information may go down on files which, although they are confidential, may be passed on to other people in the discipline. Mistakes keep on coming up year after year. There is no way in which they can be corrected.

Indeed, many local authorities, doctors and employers have voluntarily opened records. They have found that course to be beneficial, first, because it signifies that they have nothing to hide and that they are doing their best either to provide a service or to ensure that individuals are being fairly treated. But, secondly, that action dispels unjustified suspicion which arises when people do not get treatment, which is very important both in the social services and in the medical profession. People often assume that they are being unfairly treated when in fact delay is caused by a long waiting list or some such factor. Some authorities report that, although people often ask to see their records out of suspicion, they go away impressed by what they discover.

Perhaps I may now deal with the scope of the Bill. As it stands, it covers local authority housing and social service records, although, as I said, earlier it covered a wider range. Although education records are not included on the face of the Bill, a practical agreement which accompanies the Bill includes an undertaking by the Government to make a comparable provision for access to education records under powers which already exist. There are assurances, as noble Lords will know from the debates in another place, which reaffirm the Government's position.

I shall give your Lordships a few examples of situations covering both housing records and social services records. The first is contained in a letter to my honourable friend Mr. Kirkwood. The person writing it says, I would like you to know that I have been trying to gain access to my files from the council for the last 15 years and have been told that it is not council policy to let me see them. I tried to see them and had an interview with the Housing Manager who said as far as he was concerned the accusations… were factual but I have no right to find out what accusations were made… I was served notice to quit my council house… I was given no opportunity to defend myself… I want to see the allegations made against me… I am nearing 70 years old and want to live the rest of my life with an easy mind". That seems to me to encapsulate the problem so far as housing records are concerned. There is another case which is going in front of the European Commission. Mr. Gaskin, who has spent the bulk of his life in the care of the Liverpool social services department claims that his traumatic experience in numerous foster homes and institutions has left him a psychological wreck and as such he argues that the Liverpool social services department was in breach of its obligation to provide him with the appropriate level of protection and care.

That is a well known case which has been written up in a book published in 1983. It was followed by an interview with the BBC and a considerable number of discussion programmes on television. The fight is continuing and the case is currently before the European Commission. The case is raised under Articles 8 and 10. It alleges that he is unable to have access to his case file for the purpose of providing how badly he was treated. I make no judgment whatever on this matter because it is before the commission. I do not know the facts of the case but it seems that problems would have been averted if the person had been able to have access to his file.

The Bill is a purely enabling Bill, and the right of access is dependent upon regulations which are to be made. Those regulations may also provide for authorities to correct records which contain inaccurate information; for appeals to be made against decisions to deny access or to refuse to correct records; for authorities to charge a fee up to a prescribed maximum for giving access; and for some exemptions from access. The question of exemptions is critical. All those who advocate the right of access accept that certain restrictions need to be imposed, particularly to protect the rights of third parties.

Originally, the full Bill spelled out the exemptions in detail. They would have included the need to protect the privacy of third parties and the identities of members of the public or family speaking to an authority in confidence; the safety of third parties; the interests of a child, in cases where a parent sought access to the child's record; and the subject of the record in circumstances where immediate access could be harmful. The Bill proposed that in such circumstances access could be deferred for a period to allow the disclosure to take place after, rather than during, a period of acute disturbance.

Although, precisely, the right solution may not have been found in each case, the exemptions as originally framed were narrowly defined in terms of the particular interest that each was intended to safeguard. It is now hoped that departments, when they come to issue their own regulations, will resist any temptation to define these exemptions in very broad terms which would allow authorities to withhold information merely because they felt that disclosure would cause embarrassment or because they would find it difficult to justify what had been written.

As it now stands, the Bill is only a small part of what was originally proposed. We, and others in your Lordships' House, regret that the Bill now deals only with local authority records. The original proposal would have included records held by central government, as well as employment and medical records.

As regards medical records, I know that a number of doctors agree with the need for this provision but I have received a letter from the British Medical Association which it has asked me to mention. The letter states: Although health records do not form part of this Bill, no doubt the issue of access to medical records will be raised.… We would like those taking part in the debate to know that we are currently discussing this issue with the Home Office and the DHSS. Because the DHSS and doctors can see problems as well as advantages regarding patients having access to their medical records, we feel it would be helpful at this stage if these discussions were allowed to continue in advance of any legislation being considered". Far be it from me to wish to put an end to discussions, but I hope that at the end of the day the difficulties are not allowed to outweigh the benefits and that in the very near future similar legislation can be enacted relating to medical records.

There remains a considerable amount of support for the measure, watered down as it may be. One of the penalties of having a Private Member's measure going through the parliamentary system is that compromises have often to be made in order to get the measure on to the statute book. In view of that, I hope that your Lordships will give the Bill a Second Reading today and that it may not be necessary to amend it. It is my hope that we may get the Bill through in time to reach the statute book before certain coming events cast their shadows too deeply across it.

In Committee in the other place, the Minister of State, Home Office, Mr. David Waddington, gave a series of undertakings on behalf of his ministerial colleagues concerning the regulations upon which the Bill depends. One is grateful for those undertakings. They are crucial, because without them the promised regulations will not come into force and therefore no right of access will come into force.

As I understand it, the undertakings are for social work and educational records in England and Wales and housing, social work and educational records in Scotland. The Government have said that regulations will be made, and that they will use their best endeavours to make them by the end of 1988. The regulations on educational records will be made under the powers in the Education Act 1980 and equivalent powers in Scottish legislation.

The one notable exception from the list, short as it is, is housing records in England and Wales. So far, the Department of the Environment has not given a 100 per cent. commitment that it will definitely make regulations on housing records. I urge the Government to give that undertaking as firmly and as quickly as possible. Having given the Minister some indication that I should be raising that point, I hope that he can give us some further reassurance today.

Nevertheless, Mr. Waddington said in Committee in another place that although the Department of the Environment cannot say with 100 per cent. certainty that it will make regulations, he could assure the Committee that the likelihood of it failing to do so was remote. That is "government speak", and occasionally we should like things a little firmer on what is after all not a Draconian measure.

I draw the Minister's attention to the fact that although in a letter to Mr. Kirkwood from Mr. John Patten the Minister for Housing, Urban Affairs and Construction he continues to say that discussions are necessary with the various local authority associations, it is now more than two years since Sir George Young answered a parliamentary question in which he said: My Department has today written to local authority associations, to organisations representing tenants' interests, and to other interested bodies, to seek their views about how such information can be made more readily available. Public sector tenants sometimes believe that their landlords' files contain misleading personal information. In this area, and subject to proper safeguards, they ought to be able to check that mistakes are not being made. A copy of the consultation paper is in the Library."—[Official Report, Commons, 6/12/84; c. 238.] The fact that consultations are continuing gives one some grounds for concern. I hope that the Minister will be able to give us further reassurance. I hope that I have said enough to explain what the Bill is about and the need for it. I ask your Lordships to support the principle and the detail of the Bill. I beg to move.

Moved, That the Bill be now read a second time.—(Lord Tordoff.)

2.38 p.m.

Baroness Faithfull

My Lords, I thank the noble Lord, Lord Tordoff, for his able introduction of this Private Member's Bill into your Lordships' House. Of course we all believe that it is right that people should not have allegations, comments or information about them on files which is not true and which they have no way of countering.

Inevitably, I talk about the social services.. As your Lordships are aware, social services have under their remit the mentally ill and the mentally handicapped under the Mental Health Acts, the chronically sick and disabled under the Chronically Sick and Disabled Persons Act, children and families under the Childrens and Children and Young Persons Acts, care and services to the elderly under the Health Service and Public Health Acts, and of course families in trouble.

Every social worker knows that so far as possible and so far as practicable it is right that every person with whom they deal—most of them are the vulnerable in our society—must be dealt with with integrity, dignity and complete honesty. Perhaps a little further consideration of the Bill may be necessary. I am not against the Bill but I feel that certain matters have not yet been covered. I speak in particular for the Association of Directors of Social Services.

The noble Lord, Lord Tordoff, talked about exemptions and third parties. In the social services it is recognised more and more that no one department can give a service to the vulnerable. It needs to be a number of departments. Not only that but it needs very often to be people who are outside local government, and that is the voluntary sector. On the question of information which is given by a third party, if we do not have this co-operation between various departments and people outside the department, and if we do not have a safeguard for third parties giving information which they consider should be confidential, we may be doing a disservice to the very people whom we want to serve.

Perhaps I may give one example. It may be known to somebody that a man has been accused of and proved guilty of offences against children. He applies for a job working with children. Yet the person who knows this fact feels unable to divulge it unless they know that the information will be confidential. This is particularly the situation with the police. I have the greatest admiration for the way the police safeguard the information that they have. But unless the police feel that the information that they give will be treated confidentially, then they may feel unable to give it. At the end of the day that will be a disservice to the very people whom we seek to serve.

The noble Lord has talked about exemptions and the mechanism of appeal. In my experience there were examples of facts that one knew which were not in the real interests—and I say that with deep feelings—of the cases concerned. I could cite many examples, in particular where children were concerned. If parents want to know everything about a child, and those parents do not always have discretion in what they do or do not tell the child, they may easily tell him or her facts which are damaging.

While in principle I support this Bill, I think that there is much that has to be discussed. The social services are completely dependent on the medical profession. I know that when one was taking a case to court and wanted to decide which home to put an old person in, one was absolutely dependent on the doctors and their reports, and rightly so. However, as the noble Lord, Lord Tordoff, has said, there are debates taking place currently. We all know that that is so because we have all had the same letter from the British Medical Association. I hope that in these debates the position will be discussed with regard to the social services and medical reports received from doctors. Do we keep the medical report separate from the social file, or do we put it on the file? If so, we are then breaking confidentiality with regard to the doctors. In the service of the vulnerable we must also have complete integrity concerning those we work with and how we use the information we are given. I do not believe that this has been completely thought through. The association of directors also feels that this has not been thought out properly and needs further discussion.

There is one last question I wish to ask. The noble Lord, Lord Tordoff, may be able to correct me, because I may not have read all the Acts I should have read. I am not sure about age. As a children's officer and as a director of social services, I sometimes had children coming to me of 12, 13 or 14 years asking to see their files. There is a school in the north, Aycliffe School, where when a case conference is held both the children and the parents are present. Very little is withheld. But in certain cases it would be very damaging to a child, particularly in adolescence, to see a file which stated exactly the kind of life that the parents, the mother, the father, or both, lived.

I always used to try to tell every child going out of care at the age of 18 what their background was, but there are certain things which children and adolescents particularly cannot tolerate. It would be to their disadvantage to know the details and to see their files. Perhaps the noble Lord would tell me whether there is an age limit.

I support the principles behind the Bill, but I believe that further discussion is required on a number of the points I have raised.

2.47 p.m.

Baroness Ewart-Biggs

My Lords, the noble Lord, Lord Tordoff, has given us a very full and clear explanation of what the Bill is all about. He leaves me just to make a few comments about it. I welcome this Bill as a small but very worthwhile step towards giving people the right to know what information is held about them by public authorities. What gives me a personal attachment to it is that I introduced a debate on this subject on 6th November last year. I was therefore very gratified when the Access to Personal Files Bill was introduced as a Private Member's Bill in another place.

I first reiterate the fundamental beliefs on which this Bill is based; namely, that the right to see personal files is an important way of increasing people's control over their own lives. It will enable them to learn more about what is happening to them and give them the opportunity to take a more active part in discussions with authorities and the professions about their own affairs. It is also a safeguard against the possibility that records will contain inaccurate information or even unfair or prejudiced comment.

The noble Lord, Lord Tordoff, has made a very good case proving this and has given some striking examples. I remember that after my Unstarred Question I received many letters giving me some heartbreaking examples of how things could have been very different if the people in question had been allowed to check up on their own records.

While I welcome the Bill I also regret the fact that it is so limited in its scope. Were it not rather late on a Friday afternoon—and a very beautiful sunny afternoon at that—I should have been tempted to reminisce for a moment about the high hopes that so many of us had about promoting the cause of freedom of information in those early days when the Bill was first being dreamt up. However, as we all know, during the passage of the Bill in another place the Government made it clear that they would not accept a measure which included a right of access to medical or employment records or to government benefit records.

As a result those records, though initially covered, have had to be dropped. The absence of those, particularly medical records, as has already been said by the noble Lord and by the noble Baroness, will disappoint many people. The level of support for the right of access to those has been striking. The noble Lord, Lord Tordoff, mentioned the leading consumer, voluntary and professional bodies which declared their support for a legal right of access to health records. I too received the encouraging letter from the British Medical Association. The very fact that it wrote to us shows its strong commitment to continue with discussions and pressure on the principle that people should be allowed to see their records.

The Government have said that they want to encourage greater access on a non-statutory basis but I have no doubt that pressure for legislation will continue. I hope it will not be long before we have the opportunity to debate a more all-encompassing measure. Without wishing to make a party point from these Benches, I should like to point out that in recent days the Labour Party has put forward proposals for a patients' charter which would most certainly include giving patients a right of access to their medical records.

I have one or two reservations about the Bill as it now stands which I should like to put forward. I do so not to seek to impede its passage. As the noble Lord, Lord Tordoff, said, it certainly needs to put its skates on. I should like to record these few reservations as representing the disappointment that many of us feel. First, there are the exemptions from access. Naturally there must be some to protect the privacy and safety of third parties; and no doubt these will be laid down in the regulations which the various departments will introduce. I hope the exemptions will be limited to those that are strictly necessary. If departments are too free with let-out clauses it could undermine the purpose of the measure.

For example, in 1985 the DHSS issued a consultation paper on access to computerised social work records which suggested that one category of exempt information should be social workers' provisional options. What is a provisional option? The department suggested that an opinion or an assessment would be regarded as provisional and therefore not accessible to the person concerned until after a decison based on it had been taken. Surely the purpose of opening up records should be to allow people to participate in decisions affecting them. That proposal would have the opposite effect by keeping the information from people until it was too late to influence a decision.

My second concern relates to charges. The Bill envisages that local authorities could charge a fee for allowing someone to see his or her records. I have serious worries about this aspect. Anything other than the most nominal of fees will effectively deter people from applying for records. This is not an area where a deterrent is needed. I doubt whether people will seek access to their records for any kind of trivial or flippant reason. They will want to see their records because they are anxious about a problem and hope that they will throw some light on it. They should not be discouraged from doing so by the imposition of high fees. Indeed a recent survey revealed that some local authorties are charging people as much as £.15 a time to inspect files and background papers which they are now entitled to see under the Local Government (Access to Information) Act 1985. This is quite wrong and I hope the maximum prescribed fee set by the regulations will be a low one and that in practice local authorities will decide not to levy any fee at all.

Finally, there is the question of whether regulations in all the areas covered by the Bill will be made at all. The noble Lord, Lord Tordoff, brought up the example of the Department of the Environment, which has been unwilling to give a commitment to make regulations, as indeed have other departments. The Department of Education and Science has said that it will make regulations on education records. The Department of Health and Social Security has said that it will make regulations on social work records. If it can be done for social work records, which by their very nature are likely to contain information about sensitive matters and vulnerable individuals, it is hard to understand why the much more straightforward question of housing records should be causing the Department of the Environment so much difficulty. I am pleased to see that the Scottish Office has undertaken to make regulations on housing records in Scotland. So it is rather intriguing to know what particular English problems the department anticipates in housing records south of the Border.

Despite a feeling of regret for what might have been, I hope that the Bill has a speedy passage on to the statute book. My reservations should not obscure the fact that the Bill is a worthwhile measure which will benefit many people. It will at least serve to enshrine the principle that people should have the right to know more about their own affairs, and perhaps it will prepare the way for many other freedom of information measures that I feel are strongly needed.

On the way here today, a rather striking analogy hit me. I was driving along behind a small Mini with a rather appealing sticker in the back which said, "When I grow up I am going to be a Rolls- Royce". I hope that this rather small Bill might one day grow up to be a veritable Rolls-Royce of a Bill which represents true freedom of information for people who need it.

2.56 p.m.

Lord Beaverbrook

My Lords, I am most grateful to the noble Lord, Lord Tordoff, for explaining the history of this measure. The Bill, as first presented by its sponsors in the other place, embraced a much wider range of records, including those held by central government, local authorities and the private sector. It also contained some very complex and detailed provisions on the procedures to be followed in granting access to records. At that stage, the Government made it very clear that they were not opposed to the basic principle behind the Bill as to the benefits for an individual in obtaining access to records of personal information held about himself.

The Goverment themselves endorsed that principle in the Data Protection Act 1984 which gives an individual a statutory right to receive a copy of any computer record held on him. We saw it as natural that computer records should have the first priority because of the ease with which they can be manipulated or disclosed to third parties, and also because of the importance to our businessmen that we should implement the European Convention on Data Protection. The right of access to computer records under the Data Protection Act is due to come into force in November this year.

When faced with the inital version of this Bill, we came, with some reluctance, to the conclusion that now would not be an appropriate time to extend the right of access to a wide range of manual records because of the large bureaucratic and financial burden it would place on record holders, particularly at a time when they were preparing to shoulder the burdens imposed by the Data Protection Act. For that reason, we suggested that the Bill might be limited to a small number of areas in which developments were already planned and progress might be made within a reasonable timescale. After lengthy discussion and negotiation with the sponsors of the Bill, all of which were held in a friendly and constructive atmosphere, we managed to emerge with the solution that is before the House today.

The present Bill provides for a regulation-making power imposing obligations on local authorities to provide access to records in the two fields of housing and social work. In addition, the Government have promised to make progress with new regulations providing access to education records, using the existing powers under the Education Act. In all three fields of housing, social work and education, we have given a specific undertaking to use our best endeavours to make these regulations by the end of next year.

The noble Lord, Lord Tordoff, has raised the question of the undertaking given in respect of housing records in England and Wales. It was made clear in the debates in another place that the undertaking on these records was slightly different from the unconditional guarantee given in respect of the other records to which this Bill will apply. Given that consultations have to be undertaken with representatives of the local authorities concerned, and these must be genuine, the Department of the Environment did not feel able to give a categorical assurance that the regulations will be made.

It has been made very clear, however, that difficulty would arise only if the department were convinced, at the end of the consultation process, that there was no practicable way of making the regulations. The department regards the possibility of reaching that situation as remote. This may not fully satisfy the noble Lord, but I hope that it will go some of the way to reassuring him. I would also tell the noble Baroness, Lady Ewart-Biggs, that following consultation it is not now proposed that social workers' provisional judgments should be exempt from access.

The Bill now before us therefore constitutes a significant step forward in the granting of access to personal records. We recognise, of course, that it does not go as far as the sponsors and some other supporters of the Bill might have wished, but I think it represents an honourable compromise between the views of both sides and that the sponsors can claim an important achievement in having taken this first statutory step in the field of access to manual records. I am therefore very happy to say that the Government are able to commend the present Bill to the House and that we hope it will achieve a speedy passage through its remaining stages.

3 p.m.

Lord Tordoff

My Lords, I am most grateful to the Minister and to the two noble Baronesses who have spoken in this debate. I should like to answer two points that were raised by the noble Baroness, Lady Faithfull. The matter is not entirely in the hands of the sponsors of the Bill because this must be achieved by regulation. Clearly the Government and Secretary of State, in making the regulations, will take into account the needs of the professionals as well as the needs of those whose files are kept. That balance must be right and we must be sure that it does not always come down on the side of the professional. It is not always in the interests of professionals that they should have complete confidentiality because very often they receive the wrong information. The right of the individual to see what is being said about him or her must be balanced so that it can be corrected. Even though it may be something damaging, if it is correct then it is perfectly right and proper that it should remain on the file. At least people then know why judgments are being made in respect of them.

I accept that in certain cases it may be difficult for people to accept that sort of judgment. However, the regulations must provide for periods of time where proper counselling can take place. I am sure that those in the social services with whom the noble Baroness associates are well skilled in that matter. I know that they are extremely busy people and do not want to take on additional burdens, but at the end of the day their clients will be the better for it. So far as age is concerned, the same point will apply: it will depend on the regulations which are laid down. I am grateful to the noble Baroness for her general support for the principles of the Bill.

The noble Baroness, Lady Ewart-Biggs, is to be thanked for her support and for paving the way for this Bill in the speeches she has previously made in this House. I agree with her reservations that the exemptions must be restricted to the minimum possible. When regulations are laid before your Lordships' House I think that it is incumbent upon us all to challenge them if they are too extensive. We do not want to provide room for coaches and horses to be driven through the regulations.

As regards charges, I was horrified, as was the noble Baroness, to see the figures of recent charges made by local authorities for access granted under earlier Acts. I liked the reference made by the noble Baroness to the possibility of having a Rolls-Royce of a Bill later on. I hope that when that time comes we can all be shareholders.

I thank the Minister for his acceptance of the Bill. We are still worried about the housing record and, as was said by the noble Baroness, Lady Ewart-Biggs, it seems odd that Scotland is a different case from England. I do not think that the Minister has explained the difference between the problems in Scotland and England. Nevertheless, the assurances have been repeated. We are assured that the chance of anything going wrong is remote. I think that what we have asked for, and what we have received, is a feeling that the Government are determined to make these regulations sensible and make them work. After all, that is what is behind the Bill. I believe that in passing this Bill today, as I hope we will, we shall take another small step down the road to the freedom of information and the freedom of individuals. It is on that basis that I beg to move.

On Question, Bill read a second time, and committed to a Committee of the Whole House.