§ 9.26 p.m.
§ Baroness Farrington of Ribbleton
My Lords, I beg to move the second Motion standing in my name on the Order Paper. The debate today is about how we apply best value to town and parish councils. Best value is at the cutting edge of this Government's modernising agenda. It bites particularly on local government and will come into force on 1st April this year. It aims to force up standards of service delivery to those of the best.
Section 1 of the Local Government Act 1999 includes all parish councils within the best value regime, but Section 2 gives the Secretary of State order-making powers to exclude best value authorities from all or part of the best value duty. The Government believe that best value should apply in spirit to all parish councils. It is only right that local people and other stakeholders should be reassured as to the quality and cost-effectiveness of the services provided where public money is involved. However, most parish councils have little capacity to take on the full duty of best value.
At the other end of the parish spectrum there are town councils which are responsible for significant expenditure. Local people would expect such councils to be subject to the duty of best value in some way, and the Government agree. Even then, we recognise that their capacity to take on new tasks is also limited. That raises two questions: the first is where to draw the threshold below which all parish councils will be exempt from the statutory duty; the second is how to vary the duty for those councils above the threshold. The first question is a matter for the order which we are considering today. The second is approached in best value guidance for parish councils, a draft of which was issued for consultation last year.
Perhaps I may start with the threshold. Noble Lords will see from paragraph 2 of the order that this is set at £500,000 with respect to budgeted income in each of the three years preceding the year in question. All parish councils with income below that threshold will be exempt from the duty of best value. The reason we have included the three preceding years in the definition of the threshold is to avoid the situation of a parish council being "in" one year and "out" the next because of, for example, short-term project funding. The effect of this threshold is to bring some 80 parish councils out of a total of some 8,000 within the best value regime.
494 Perhaps I may turn to the varying of the duty of best value for those parish councils within the best value regime. The Government intend to lighten the duty of those councils. We do not propose to apply national performance indicators to them. However, we would expect them to set their own suite of local performance indicators reflecting local priorities.
Parish councils are already close to the people they serve, and we do not see any particular difficulties in parishes managing the new duty to consult. We believe it is right for best value parish councils to review their functions over a five-year cycle. Such reviews are key to making a real difference to service delivery.
We are also considering whether a single inspection over the five-year cycle might be the more cost-effective approach to scrutiny. That is a matter for the Audit Commission.
We also believe it right that a best value parish council should produce a performance plan and that the plan should be subject to audit. That does not have to be a large document—rather, just a few pages—but sufficient to let local people know about future plans and past performance.
I now turn to costs. The costs of any inspection will be borne by the Audit Commission from funds made available by the DETR. There will be a cost for the audit of the performance plan. But there will be a subsidy for a proportion of the audit costs. In the end, these costs approximate to less than 50p on average on the tax bill for each household.
The Government believe in the importance of parishes. They add value to local democracy, and they have particular strengths in local service delivery. Indeed, this Government have created 60 new parishes since their election.
Some parish councils are well into best value. For example, Dunstable produced its first performance plan last year. Burgess Hill runs a one-stop shop to be envied—a shop which brings in its key partners and which shows best value principles in action. There are also parish councils below the threshold which are taking on elements of the best value regime: for example, Hertford, Bishops Stortford and Yeovil. Such councils want to demonstrate that they are effective performers.
That is what it is all about. Best value is an opportunity for parishes to show what they can do: to become more a part of mainstream local government and to make good partners. I hope that all parishes will begin to see best value in that light.
Moved, That the draft order laid before the House on 11th January be approved [6th Report from the Joint Committee].—(Baroness Farrington of Ribbleton.)
§ Lord Dixon-Smith
My Lords, the House will be relieved that I hope to avoid provoking the one-and-a-half hour discussion that the order generated in another place. There may have been an excuse for that in the sense that, while it was Wednesday in 495 Westminster Hall, where the order was debated, it was still only Tuesday in the Chamber itself! Matters were slightly disrupted.
In this House we should welcome the order. It follows lines that have been well debated in both Houses. We sought to place the figures and exemptions on the face of the Bill. I understand the reasons for not doing so, but I still think it regrettable. We might not have been having this discussion had the point been accepted at that time.
I have one question. Because it was necessary for me to be in the Chamber this afternoon, I regret that I did not have quite enough time to do my homework. The Minister can probably give me a quick assurance. Budgeted income can mean various things. I should like an assurance that it does not include capital income. In the south-east of England it is not unusual for a parish to own a piece of land which it might sell at a very high value. If it were to have two or three acres of land to sell, in certain areas the value of the sale would mean an otherwise small parish council being subject to best value, which on the basis of its revenue spending would be completely inappropriate. If the noble Baroness is able to give me that assurance when she replies, I shall be happy to see the order go forward in its present form and to welcome it in that form. However, I hope to receive that assurance.
§ Baroness Hamwee
My Lords, we welcome the order. As the noble Lord said, when this matter was debated by noble Lords in Committee as well as in another place there was considerable concern about the need not to impose inappropriate duties on small parishes. While wishing to achieve best value in the general sense, there is concern about the best value duties as spelt out in the legislation. Obviously, the effect of pieces of bureaucratic legislation on the budgets of small parish councils is something that we, like the Government, want to avoid. We do not believe that it is a good use of public money for a small authority to have to go through the procedures that they otherwise would.
I was also glad to hear the Minister's assurance about the value that the Government place on parishes. This has been a matter of controversy over the past two or three weeks given statements made by one of the noble Baroness's right honourable friends in another place. It is good to have that assurance on the record. I am sure that the Minister would not provoke us by making a statement in the other direction. We support the passage of the order.
§ Baroness Farrington of Ribbleton
My Lords, I thank both the noble Lord and the noble Baroness for their contributions. In answer to the noble Baroness, I am sure she recalls that the noble Baroness, Lady Byford, raised this matter during the passage of the Local Government Bill, when I placed our commitment on record. As to the issue raised by the noble Lord, it appears that under the circumstances that he describes a very small parish council may meet the target for one year but certainly not for three consecutive years. I do 496 not believe that capital is part of budgeted income, but I shall write to the noble Lord if I can add anything further or I need to say anything by way of correction.
§ On Question, Motion agreed to.
§ Data Protection (Crown Appointments)
§ Data Protection (Subject Access
Modification) (Social Work) Order 2000
§ Data Protection (Processing of Sensitive
Personal Data) Order 2000
§ Data Protection (Miscellaneous Subject
Access Exemptions) Order 2000
§ Data Protection (Designated Codes of
Practice) Order 2000
§ Data Protection (Subject Access
Modification) (Education) Order 2000
§ Data Protection (Subject Access
Modification) (Health) Order 2000
§ 9.37 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton)
My Lords, I beg to move the seven Motions standing in my name on the Order Paper en bloc. These orders help complete the arrangements for protecting personal data created by the Data Protection Act 1998. For the most part, they are about striking a balance between the basic data protection rules and other important individual needs or public interests. They modify individuals' rights to get access to data held about them; set out circumstances in which sensitive personal data may be processed; and designate media codes of practice in connection with processing of personal data by journalists.
The 1998 Act gives effect throughout the United Kingdom to the 1995 EC Data Protection Directive. A large amount of subordinate legislation is needed to complete the regime that it creates. A total of 17 instruments, including these seven orders, will be brought into force with the 1998 Act on 1st March. The remaining 10 orders are subject to the negative resolution procedure and are to be laid separately before your Lordships' House this week.
The 1998 Act is complex and I draw the attention of the House to just two key elements of it. First, the Act creates a set of rules, known as the data protection principles, with which all organisations processing personal data must comply. Among other things, these 497 regulate the fairness and lawfulness of the processing, the accuracy of the data and the purposes for which they may be processed, the time for which they may be retained and the need for security. The second pivotal element is the right for individuals to be able to get access to data held about them: the subject access right.
These orders all relate in one way or another to exemptions from certain provisions of the 1998 Act. With your Lordships' permission, I shall for convenience refer to them in abbreviated terms. I deal first with the health, social work, education, miscellaneous and Crown appointments orders. All of these orders modify or provide exemptions from the subject access right and, in some cases, the accompanying right for individuals to be given information when their data are collected. Together these are called the subject information provisions.
The health order is similar, but not identical, to an order made under the existing law, the Data Protection Act 1984. Its main effect is to create an exemption from the right of subject access to health data where giving access would cause serious harm to the health of a data subject or another individual.
The social work order which also reflects an existing order under the 1984 Act makes similar provision for social work records held by the organisations in Schedule 1 including local authorities, health bodies and the courts. Its main effect is to create a subject access exemption where giving access would prejudice social work because of the serious harm caused to the health of the data subject or another individual.
The 1998 Act creates data protection access rights for education records for which access is currently provided by the Education (Schools Records) Regulations 1989 and similar regulations made in other parts of the United Kingdom. The education order replicates exemptions made in those regulations. Again, the main effect is to create an exemption from subject access to education records, where giving access would cause serious harm to the health of the data subject or another individual.
All three orders make other provision, including exemptions from the subject information provisions for certain court reports.
The miscellaneous order also mirrors existing provision. It provides subject access exemptions for certain information whose disclosure is prohibited or restricted by the statutes specified in the schedule. The information covers information about human fertilisation and embryology, adoption records, information about children's special educational needs, parental order records, and information provided by the principal reporter in children's hearings in Scotland.
Finally in this group, the Crown appointments order provides exemptions from the subject information provisions for data processed for assessing individuals' suitability for the appointments made by Her Majesty which are specified in the 498 schedule to the order. The exemptions are needed because the records would typically include communications involving Her Majesty.
I turn now to the sensitive personal data order. As required by the directive, the 1998 Act identifies certain categories of personal data for special treatment. They are information about race, political or religious views, trade union membership, health, sex life and actual or alleged criminal activity. The Act refers to this information as sensitive personal data. Such data may not be processed unless one of the nine express conditions set out in Schedule 3 to the Act is met. Schedule 3 also allows further exemptions from the general prohibition on processing sensitive personal data to be set by order.
The schedule to this order specifies additional circumstances in which such data may be processed. Consistently with the directive, the circumstances are limited to those where the processing is in the substantial public interest; and where there are safeguards, often in the form of a requirement to seek consent where possible. In considering this order it is important to note that it does nothing more than provide a gateway: if the processing manages to get through the gateway, it still has to meet the requirements imposed by the rest of the data protection principles.
Finally on this order, paragraph 10 allows the police to process sensitive personal data in connection with their common law functions.
I apologise for having detained your Lordships' House for so long on this order. But it is a very important part of the package and I thought it right to explain it in some detail.
I shall be much briefer on the final order, the designated codes of practice order. As I have already mentioned, the 1998 Act provides a wide exemption for processing for journalistic, artistic and literary purposes. One of the conditions of the exemption is that, having regard to the special importance of the public interest in freedom of expression, the data controller reasonably believes that publication of the personal data would be in the public interest. In assessing the reasonableness of the data controller's belief, regard may be had to his compliance with any relevant code of practice designated by the Secretary of State. This order designates for this purpose the five codes set out in the schedule to the order: the Broadcasting Standards Commission's Code on Fairness and Privacy; the ITC Programme Code; the Press Complaints Commission's Code of Practice; the BBC's Producers' Guidelines; and the Radio Authority's Programme Code.
That concludes my swift but, I fear, too lengthy overview of the orders. They are essential to make the regime created by the 1998 Act work smoothly. They have been drafted following a general consultation exercise and in specific consultation with many organisations which are concerned.
The Data Protection Registrar, who will become the data protection commissioner with the implementation of the 1998 Act on 1st March, has 499 been formally consulted about the orders and is content for the 1998 Act to be put into force with them as they stand. I commend them to the House. I beg to move.
Moved That, the draft orders laid before the House on 24th January be approved [8th Report from the Joint Committed.]—(Lord Bassam of Brighton.)
§ 9.45 p.m.
§ Viscount Astor
My Lords, I thank the Minister for introducing the orders. I shall be equally brief. The first order concerning Crown appointments is intriguing. I had not realised there were so many interesting Crown appointments. Those exempted include Archbishops, Deans, Lords Lieutenant, the First and Second Church Estates Commissioners, Masters of Trinity College, the Provost of Eton, the Poet Laureate and the Astronomer Royal. I am sure many budding poet laureates will sleep happily in their beds tonight knowing that if they ever hold that position their private lives will not be exposed. Indeed, many astronomers staring into the stars tonight will be equally relieved that they will be covered by the order.
I have no comment to make on the second order relating to social work. The important order is the third, which relates to the processing of sensitive personal data. We passed the Act a long time ago. The noble Baroness, Lady Nicholson, and I were present, but the Minister was not even at the Home Office. No doubt he has read the debates in detail in Hansard, but just in case he happened to miss something, I have given him notice of a question I intend to ask.
As regards the processing of sensitive personal data, a commitment was made during the passage of the Bill. We are grateful not only for the commitment with regard to journalists but with regard to ethnic minorities.
The fourth order relates to miscellaneous subject access exemptions and I have no comments to make on that. The fifth order, concerning designated codes of practice, causes me to ask a brief question. The Minister will see that of the five codes of practice four relate to statutory bodies which come under the Broadcasting Act 1991 or the producers' guidelines for the BBC which, being brought in by Royal Charter and Agreement, is subject to parliamentary control. The bodies include the Broadcasting Standards Council and the Radio Authority. However, the code of practice which relates to the Press Complaints Commission appears to be different because that commission is an independent body. It is funded by the press, sceptics will say, largely for the benefit of the press. However, under the chairmanship of my noble friend Lord Wakeham, it carries out an extremely important role in protecting the public. Its codes are independent, but now they are designated codes of practice must they be agreed by the Government? Will the Home Office monitor those codes? Is this the first step towards the Home Office becoming involved in those codes of practice? Will the commission remain an independent body?
500 I am sure that there is a reasonable explanation, but the concern exists and the situation must be clarified. There has always been public concern about the validity of the commission's codes and we must make it clear that it is an independent body with its own codes or that it has a link with the Government. Therefore I shall be grateful if the noble Lord can answer that question.
I do not have any comments to make on the final two orders. However, perhaps I may say that I have had dealings with the Data Protection Commissioner and I should like to say publicly that those dealings have been most helpful in sorting out various problems. I am full of praise for the role carried out by the Commissioner.
§ Baroness Nicholson of Winterbourne
My Lords, I, too, welcome the opportunity to debate briefly these seven statutory instruments. Furthermore, I congratulate the Minister on his introduction of this complex and important topic. As we heard in the initial debate, these orders form a part of the Government's goal of "bringing rights home". However, I find this to be an inadequate implementation of such an important goal.
The Minister has correctly stated that the Act and the resultant orders derive directly from the European directive on data protection, which became an Act in 1998. Of course that coincided with the incorporation of the European Convention on Human Rights—the lodestar or northern compass of the Government's commitment to "bringing rights home". However, as the Minister has already said, the Act touches on two sides of the same coin: the privacy of the individual in terms of the protection of individual rights; and the other side, which is the right of access by an individual to information compiled by other people about him or her.
Perhaps I may comment briefly on only two of the orders before us: the fourth, Miscellaneous Subject Access Exemptions, and the fifth, Designated Codes of Practice. I should like to give one or two examples of the points that concern me, but I am of course aware that we examined these topics in detail in our lengthy debates on the Bill which was enacted in 1998. None the less, the world has moved on and new variables have been introduced into these areas. If the Minister cannot respond to my points tonight—although I know that we cannot amend the orders—perhaps he will take them away for consideration and then write to me or hold a meeting.
I shall turn to the point about the media. When we consider the designated codes of practice, we must remember that they are not all apples but rather apples and a pear. We have the Code on Fairness and Privacy issued by the Broadcasting Standards Commission, the ITC Programme Code, the Producers' Guidelines from the BBC and the Programme Code issued by the Radio Authority. Those are one side of the argument. However, the oddity—the pear—is the code of practice published by the Press Complaints Commission. I should like to remind the Minister that this is the one that is not buttressed by a statutory 501 basis. The commission is merely a self-regulatory body which does not come in front of Parliament in the same way as do the other media. Print is not regulated by Parliament: it is self-regulated.
That, I believe, reaches the nub of the problem, one that attacks the privacy of individuals. The press has no statutory duty of accuracy, as have both radio and television, nor does it have a statutory duty to separate fact from opinion, which again is covered by successive broadcasting Acts since 1956. I therefore regret that this particular code of practice has no statutory basis. Therefore, for that point only it is with regret that, on behalf of the Liberal Democrats, I am not able formally to amend this code of practice which relates to the media.
My other point is somewhat different. It relates to access by the individual to information. Of course, the Minister referred to that in several of these orders. I pick out one merely to put forward my view on it; for example, the order which deals with human fertilisation and embryology information and that pertaining to adoption and parental order records. I believe that the miscellaneous subject access exemptions order most likely conflicts with the rights of the child contained in the European Convention on Human Rights. For example, under that convention children have absolute and unrestricted access rights to their natural parents. It is very difficult to have access to one's father if one is not allowed to know who he is. Many of the children who were conceived in unusual circumstances by scientific methods, rather than natural human methods, have now reached the age of 21 or 22— that is two decades ago. I believe that almost the first thing they try to do is to find out who their father is. I ask the Minister to consider that also. Does this order conflict with the rights of the child now that the Government have imported into legislation the European Convention on Human Rights?
The conventions of this House prohibit any amendment of these orders, but there is continuing movement in the European Parliament and in the European Commission on the topic of the freedom of individuals to have access to information about them and also protection of individuals from the unacceptable assaults on their integrity, perhaps by printed media and in other ways. Therefore, apart from the occasion of these orders, I hope that there will be another opportunity soon to debate these important, major topics and that the Minister will be kind enough to take those thoughts home with him to discuss them while we accept these orders.
§ Lord Bassam of Brighton
My Lords, I am grateful to the noble Baroness, Lady Nicholson, for her considered reflection on the orders. I am grateful also to the noble Viscount, Lord Astor, for his considered comments. I can be of some help both to the noble Baroness and the noble Viscount this evening, but, I confess, perhaps not as helpful as I should like to be.
I turn, first, to the Press Complaints Commission codes. I believe that I can put the noble Lord's mind at rest that the Government have absolutely no plans to change the status of the Press Complaints Commission 502 at this time. The order in itself does nothing to qualify the independence of the Press Complaints Commission. Both contributors to the discussion over these codes have drawn on the different position that the commission occupies within the overall codes that we are discussing. We fully recognise that, and we should be foolish to do otherwise.
However, I believe that in a sense there is regulation through the courts and they can decide whether a journalist claiming compliance with the code in connection with the exemption under Section 32 of the 1998 Act, does so legitimately. I believe that that is an important consideration. However, I believe that some form of regulation exists, perhaps not as some Members of your Lordships' House would expect or desire. But it is important to keep in mind that that element of regulation exists.
I believe that the point made by the noble Baroness, Lady Nicholson, about this issue being two sides of the same coin—a reflection on what I said myself—was completely right when she addressed the question of access to information relating to human fertilisation and adoption records. I believe that there is a balance to be struck. We try to match exactly that balance with these codes. We have had to consider carefully the harm that might be done in releasing certain information to individuals about their personal circumstances. That thread runs through the orders. That brings us to the sharpest point for this particular set of orders. There should be opportunity for more debate on what is an important matter of public concern. I shall be happy to have further discussions with the noble Baroness who rightly draws our attention to the way in which the law is moving in Europe and some of the human rights considerations.
We should not be afraid of human rights considerations. We must see them as an important challenge and as an important part of the checks and balances which we have within our system. We must educate ourselves about what they may mean in those circumstances. No doubt we shall do that in the future.
If there is a conflict with the rights of the child convention—and we believe that to be unlikely—that may stem only from the Human Fertilisation and Embryology Act 1990. The order merely preserves the exemption in the Act. That is extremely important.
Having said that, I hope that the House will approve the orders.
§ 10 p.m.
§ Viscount Astor
My Lords, before the Minister sits down, I ask him briefly to amplify one matter. As I understand it, the order relating to the Press Complaints Commission means that the data controller, if he does not follow the code of practice, may be in a position where he breaks the rules concerning data protection and therefore breaks the law.
That is entirely reasonable in relation to all the other codes of practice because they relate to statutory bodies. However, the point I make is—and this was echoed by the noble Baroness, Lady Nicholson—that 503 the Press Complaints Commission is an entirely independent body. Therefore, it may one day decide to change its rules and codes. There is nothing that the Government can do about that. Therefore, I ask the Minister to assure us that the Government will monitor that code of practice, look at it carefully and discuss with the Press Complaints Commission whether it intends to make any changes. If the Government found any changes to be unacceptable, they could then come to Parliament and change the orders accordingly. Perhaps the Minister will give me an assurance that the Government will monitor that process.
§ Lord Bassam of Brighton
My Lords, I am happy to give that assurance. Perhaps I was not sufficiently reassuring earlier. The order designates a specific edition of the code which goes to the heart of the point 504 made by the noble Viscount. It relates to the code published in December 1997. We shall of course continue to monitor the situation and we shall consult, as we do on these matters, the Press Complaints Commission. If it changes the code, a fresh designation will be required for the new edition. Therefore, there will have to be further consultation in any event. We shall consider any request which the commission may make for designation of the code in consultation with the Data Protection Commissioner. I hope that that gives the noble Viscount the satisfaction which he seeks and clarifies the situation. As I said, we recognise the independence and the value of the independence which the Press Complaints Commission has. I commend the orders to the House.
§ On Question, Motion agreed to.
§ House adjourned at four minutes past ten o'clock.