HL Deb 29 April 2004 vol 660 cc936-42

2.28 p.m.

Read a third time.

Clause 4 [Functions: supplementary]:

Lord Clement-Jones moved Amendment No. 1: Page 4, line 26, leave out subsection (7).

The noble Lord said: My Lords, when we last debated Clause 4 of the Bill, the Minister laid down what I described as a veritable barrage of legislative precedent in relation to his new provisions in Clause 4(7). giving the appropriate authority, by which is normally meant the Secretary of State, the power to direct the agency to have regard in exercising any of its functions to such aspects of the policies of the authority as the authority directs. and also the default powers, to persuade us that there was very good precedent for both aspects of the new amendments he proposed at that time. When the smoke cleared, however—effectively after I had read Hansard subsequent to the debate—it struck me that a number of questions remained regarding what the Minister had said.

There is no dispute between any of the Benches on the question of the default powers. They fall fair and square with virtually every other agency that the Secretary of State for Health has to deal with, whether it is the FSA, the regulators or many other bodies. It is really over the subsection (7) powers that there is some doubt.

When the Minister referred to the new subsection he referred to CHI—Iknow that that is now called the Healthcare Commission, so one must remember to change our vocabulary as time goes on—and CSCI, which I believe has not changed its name. These bodies have a very different role to that of the Health Protection Authority.

The Minister referred to chapter and verse. He referred to Section 131 of the Health and Social Care (Community Health and Standards) Act as regards CSCI, and he referred to Section 132 of that Act, as regards the Healthcare Commission.

The Minister skated very lightly over one matter— indeed, he did not mention it. This is the aspect that interested me when the smoke cleared. The FSA, which has much more analogous functions to the Health Protection Agency, does not have any power of that kind available to the Secretary of State. This is the dog that did not bark in the night. Perhaps the Minister would give us further background on the issue.

The default powers are in Section 24 of the Food Standards Act 1999. There are other powers relating to international treaties, and indeed powers to remove members of the agency, which are quite interesting in the context of the HPA Bill. But there is nothing similar to subsection (7). That seems rather strange. Could the Minister explain why we are adopting this provision when no such provision exists in the case of the Food Standards Agency? I beg to move.

The Parliamentary Under-Secretary of State, Department of Health (Lord Warner)

My Lords, I am sorry that the noble Lord, Lord Clement-Jones, has such difficulty with my extensive explanation of our thinking on Report. Clause 4(7) is part and parcel of the revised powers of direction as to the exercise of functions, which we agreed to incorporate in the Bill on Report. I would suggest that removing it would not improve the Bill. It particularly goes together with Clause 4(8). So, they arc part and parcel of the same approach.

I shall not go through the extensive explanations that I gave on Report, but I should like to focus on one particular point. I shall return to the point about the Food Standards Agency. I would remind the House that Clause 4(7) is virtually identical in terms to the wording in Section 131— subsection (1) in particular —of the Health and Social Care (Community Health and Standards) Act 2003. Whatever else we did in the Bill, we combed through it extensively and had extensive debates on whether those provisions would unreasonably fetter the independence of those bodies and on whether it would put the Secretary of State in a position rather whimsically to give directions to the Healthcare Commission and CSCI. After our debates, the Act on the statute book had virtually identical wording to that in Clause 4(7).

I reiterate to those who are concerned that Clause 4(7) will be used to prevent the agency carrying out an act that an appropriate authority did not believe to be appropriate, that that is not a backdoor way of maintaining the wider power of direction which we removed from the Bill on Report.

The fact that we have not followed slavishly the wording in the Food Standards Act means that we have not copied that Act. We have related the powers here much more to health bodies, and we have drafted the Bill accordingly. The noble Lord shakes his head. He may not like the elegance of our drafting or the wording or my explanation, but my account explains why we have framed this legislation in this way. The legislation on the Health Protection Agency, in terms of this reserved provision in relation to directions, is virtually the same wording as that used in the Health and Social Care (Community Health and Standards) Act. That is the position, and I suggest that it is not necessary to pursue the amendment.

Lord Clement-Jones

My Lords, the Minister has considerable chutzpah in coming back and virtually repeating word for word, except for a few excisions, the statements that he made on Report. Accusing me of saying that there were objections to the Government not having copied slavishly the Food Standards Act is fairly breathtaking. The point is not just that the Government have not copied slavishly the Food Standards Act; they have inserted provisions that were never contained in it. We have got away from the charge that is laid against me.

I accept the Minister's assurance that this is not a backdoor way of giving directions to the agency. It has been limited. I think that the Minister did listen. Whether he has gone far enough, we will have to judge on the actual behaviour of future Secretaries of State in the way they relate to the agency. We have on the record fairly adamant assurances at virtually every stage of the Bill that that power will be used properly and within the policy framework. The precise interpretation of the subsection no doubt will take place on a future occasion. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Warner moved Amendment No. 2: Page 4, line 42, at end insert— () But subsection (11) does not authorise a disclosure of information which contravenes the Data Protection Act 1998 (c. 29).

The noble Lord said: My Lords, in moving this amendment, I shall speak also to the other two government amendments in this group, although they relate to slightly different issues.

Amendment No. 2 responds to a point raised by the noble Earl, Lord Howe, at Grand Committee and on Report. I am extremely grateful to him for having drawn our attention to it. We all recognise that the Health Protection Agency, in order to discharge its functions, will need to handle confidential and sensitive information. Quite properly, information of this nature needs to be subject, as a general rule, to various restrictions on its handling. There will, however, be circumstances in which the agency will need to disclose information which it holds to the other bodies with which it works, in order for the agency and those bodies effectively to discharge their functions. There will also be circumstances in which the agency will need to receive information from such bodies, again in order for both parties effectively to perform their functions.

In very many such cases, there is already legislation in place, which requires such information to be protected and provides a basis on which it can be passed to, and received from, others with whom it needs to be shared.

However, it is not possible to say that whatever functions the agency takes on under the provisions in Clauses 2 and 3, and whatever the areas within which other bodies seek its co-operation, there will always he—and in every circumstance—a clear legal basis on which the agency and its partners can share the information that they need to share effectively to perform their functions. There may be restrictions on sharing some information that the agency and its partners need to share. It is for that reason that Clause 4(11) is included in the Bill.

Clause 4(11) disapplies from the agency and its partners restrictions on the disclosure of information. It allows the agency and its partners to disclose information to, and receive it from, each other in some circumstances where they would not otherwise be able to do so. In practice, as far as we can judge, occasions when Clause 4(11) might need to be invoked will not be common. However, it needs to be there, to ensure that the agency and its partners have a lawful basis for any necessary disclosures of information that would otherwise be subject to restrictions.

It is not the case, as was suggested in some of our earlier debates, that Clause 4(11) authorises the agency to disclose personal information to an unlimited number of bodies, or to everyone in those bodies. Clause 4(11) would authorise disclosure where it was necessary for one of the functions specified; but the disclosure would still need to be in the public interest, and it would need to be proportionate if European Convention rights were engaged.

The noble Earl, Lord Howe, raised the question of whether Clause 4(11) would override the requirements of the Data Protection Act. The Bill as currently drafted does provide such an override. The noble Earl, Lord Howe, made the point that the Data Protection Act does not prevent the dissemination of personal data when that is necessary in the public interest. That is an important point, and that is why we have looked at the drafting of the Bill again.

My officials have worked closely on this with the Department for Constitutional Affairs, which is the custodian of wisdom on the Data Protection Act. They have also discussed thoroughly with the Health Protection Agency Special Health Authority and the National Radiological Protection Board—the bodies that currently carry out the functions planned for the agency—what those bodies think the practical implications of modifying Clause 4(11) might be. I am glad to say that in the light of this further work, we have come to the conclusion that it is not essential to disapply from the Health Protection Agency and its partners the requirements of the Data Protection Act. The government amendment therefore makes clear that the requirements of the Data Protection Act will apply.

Turning to the second government amendment in this group, on Report we replaced the words "one or more schemes" with "a scheme" at each point where they then appeared in Clause 8. This further minor change follows through the logic of that change, by making a similar change to the new material that we added to Clause 8 on Report.

Finally, the third government amendment is a purely technical amendment, which simply ensures that Schedule 4 reflects an amendment that we included in Schedule 3 on Report. I beg to move.

2.45 p.m.

Earl Howe

My Lords, I intervene briefly to say how much I welcome Amendment No. 2. which is clearly the product of a great deal of deliberation by Ministers in a number of departments. I am grateful that the concerns that I raised at earlier stages of the Bill on the issues of confidentiality and data protection have been taken on board as seriously as they have been. The amendment resolves a great many questions, but I ask the Minister to say something about guidance on these matters.

The Data Protection Act 1998 is a carefully considered piece of legislation, but even its closest friends would concede that its effects and implications are not always self-explanatory. The fact that Clause 4(11) will be subject to the over-riding provisions of the Data Protection Act is welcome. but the interpretation of the subsection, at a practical level, may leave many people doubtful about what they may legally do and not do. It seems that guidance is required to clarify the principles involved here, not only as to the initial disclosure of personal information and the circumstances where disclosure needs to happen, but also as to what should happen to information once it has been disclosed.

If a local authority, in pursuit of its duty of co-operation, receives sensitive personal data of a medical nature, who in the authority, and indeed outside, should be entitled to read that information? How should it be stored? Suppose after a while there is no strict need to continue holding the data, because the matter has been dealt with, what should be done with the files? Should the local authority retain the data just in case, or should they be destroyed? All these questions arise as a matter of practice.

The Minister was helpful on Report in putting these provisions into the context of the Human Rights Act, but the duty of co-operation under Clause 5 extends far and wide. It is obvious that the more people who receive data relating to, let us say, HIV-positive men and women living in a particular area, the more scope there is for such data to permeate to unauthorised individuals unless we are particularly careful. The Health Service Control of Patient Information Regulations 2002 are clearly important in this context, but they are not referred to specifically here. It might be thought that they are overridden by the wording of Clause 4(11) I am sure that the Minister will tell me that that is not so, but it might be thought to be so.

The Minister has gone to a great deal of trouble to listen to the concerns raised by noble Lords throughout proceedings on the Bill, and he has responded most constructively to those concerns by bringing forward government amendments. I am extremely grateful to him and to his officials for all that they have done. It seems to me that in several significant, albeit small ways, the Bill is now improved. Furthermore, our debates have clarified both the underlying principles and the practical implications of this legislation, which we all agree is to be welcomed. We wish the agency well in the important work that lies ahead of it.

Lord Clement-Jones

My Lords, very briefly, we wish to support and thank the Minister for putting forward this amendment. Issues now surround the Data Protection Act, and we have already had debates on Starred Questions about whether a review of the Act would be appropriate. Many of us believe that that would be a useful way forward.

As regards the regulations under Section 60 referred to by the noble Earl, Lord Howe, the question of whether subsection (11) overrides the requirements of the Data Protection Act is important, since this has been the subject of considerable debate. This being Third Reading and the last opportunity to thank the Minister for his constructive engagement on this Bill, and for the amendments that have been made, I will do so. I join the noble Earl, Lord Howe, in wishing the agency well with the new powers that it will receive under this Act.

Lord Turnberg

My Lords. I hesitate to prolong the discussion very much, but can my noble friend the Minister confirm that the HPA has indeed had approval from the Patient Information Advisory Group, under Section 60, to use information about patients in the public interest without the patient's consent, under certain circumstances that, the PIAG could approve?

Baroness Finlay of Llandaff

My Lords, very briefly, I thank the Minister for having listened so carefully to all the points that have been made at previous stages of the Bill. I apologise that I was unable to be in the House the last time that the Bill was before us, but I formally thank the Minister and the noble Baroness, Lady Andrews, for the work that they did to ensure that the agency will work closely in collaboration with the service in Wales, and that the concerns have been allayed by establishing observer status on the board.

Lord Warner

My Lords, I am grateful for the remarks made by a number of noble Lords. This has been a co-operative venture, in that we have tried to make this Bill as constructive and useful as possible for the new agency. I share their views. We wish the Health Protection Agency well.

On the issue of guidance in relation to the Data Protection Act, it will be open to the agency. I am sure that it will look carefully at what has been said in this House to issue guidance to staff about the way in which the Act should be interpreted and used, based on the plentiful guidance that has already been issued in relation to that Act, and is available to all employers.

Does Clause 4(11) override Section 60 regulations? Yes, it overrides restrictions on disclosure, but only in the circumstances that I outlined, which are specified there. I will write with more details to the noble Earl, Lord Howe, on the relationship with the Section 60 provisions, and to my noble friend Lord Turnberg.

On Question, amendment agreed to.

Clause 8 [Transfer of property and staff etc.]:

Lord Warner moved Amendment No. 3: Page 6, line 23, leave out "one or more schemes" and insert "a scheme

On Question. amendment agreed to.

Schedule 4 [Repeals]:

Lord Warner moved Amendment No. 4: Page 20, column 2, leave out line 33 and insert—— In section 133(4), after paragraph (c)(i) "or" and after paragraph (d)(ii) "or"

On Question. amendment agreed to.

An amendment (privilege) made.

Lord Warner

My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Lord Warner.)

On Question, Bill passed, and sent to the Commons.