Data Protection Act 1998 (Hansard, 13 January 2004)

§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)
My Lords, I have discussed those tragic cases with the Information Commissioner, who is responsible for ensuring the effective operation of the Data Protection Act. Our initial view is that no change is needed to the Act itself. But there is obviously a need to ensure that organisations properly understand the Act, have clear compliance procedures and exercise sensible judgments. The commissioner today announced a package of measures to help to prevent future misunderstandings and provide improved access to advice.

§ Baroness Greengross
My Lords, I am very grateful to the Minister for his reply. I fully understand the points that he has made and that we must wait until Sir Michael's inquiry before we know finally what the outcome will be. In the tragic case of Mr and Mrs Bates, the Data Protection Act's vital interest exemption should be speedily clarified and perhaps broadened so that employees of firms such as British Gas or people working in statutory agencies do not feel, rightly or wrongly, that they cannot pass on their concerns. Does the Minister agree with me that we must not put the protection of data before the protection of vulnerable people? I hope that he will put that point to the Information Commissioner.

§ Lord Filkin
My Lords, I agree explicitly and exactly with that point; the Information Commissioner is also well aware of it. The Act posits no such conflict in the way that that has been articulated. It is perfectly possible to fulfil what common sense would tell us one should do; that is, to disclose personal information when there is a wider interest in doing so. In the specific example of the Bates case it is not right that I go into great detail but, relying on the coroner's report, it is clear from what that said and from what British Gas said that British Gas was of the view that those persons were not vulnerable, and therefore there was not a need or requirement to disclose to social services. Had it judged otherwise, it was aware that it could have disclosed the information to social services.

§ Lord Henley
My Lords, while accepting that we have to wait as the noble Baroness, Lady Greengross, said, for the Sir Michael Bichard report—and I agree with that—would the noble Lord also agree that there is a duty on the Government to offer further advice on the workings of the Data Protection Act 1998?
461 Would he also bear in mind the words of the then Solicitor General, the noble and learned Lord the Lord Chancellor, when speaking at Third Reading, we have not been shy to acknowledge that we may not always have got everything absolutely right the first time, or even the second time".—[Official Report,024/3/98; col. 1135.]? Is it possible that they have not even got it right the third time, and that they will he able to offer further advice on the workings of this Bill?

§ Lord Filkin
My Lords, again in a word, yes. We are certainly looking at whether there is more that could sensibly be done, which is why we are looking with ACPO and the Home Office to see if there is further advice and guidance that might be useful to police forces. It was clearly no lack of clear advice on the Humberside case that led to the issue, in that the ACPO guidance is explicit that unproven allegations of sexual crimes can be retained on file and divulged in the circumstances of Soham. It spells that out in words of one syllable.

§ Lord Phillips of Sudbury
My Lords, I suggest to the Minister that in fact the law relating to the Data Protection Act 1998 is extraordinarily complicated. The application of the fairness principles might have allowed the authority to release information in the Bates case, but interpreting that is way beyond the capacity of the sort of individuals in the utilities who must do that. Would the Government consider reintroducing into the Data Protection Act 1998 an exemption that was in the Data Protection Act 1984, which allowed urgent disclosure where there was a risk of real harm, that disclosure being in the interests of the person likely to be harmed? That would be extraordinarily helpful in a practical way.

§ Lord Filkin
My Lords, I am pretty confident that the existing law allows exactly what the noble Lord, Lord Phillips of Sudbury, has advocated. He is right that the Act is not the simplest to understand, but of course practitioners and administrators in either public or private sector organisations do not work their way through the Act. They look at the guidance that is produced by a wide range of bodies—the Information Commissioner, trade organisations and the like—who have worked from the Act to provide practical advice. I am clear that it is the quality of advice that matters, but perhaps even more so it is organisations giving very clear signals that the Data Protection Act 1998 matters, and in two respects. It matters to protect personal privacy when it is right and proper to do so; it also matters to make sensible decisions about when information should be released, because there is a wider interest either in terms of the safety of the individual concerned, or the wider public interest in terms of the prevention of crime.

§ Baroness Hayman
My Lords, is my noble friend aware that the tone of his responses today will be welcome? Would he agree that a culture of over-formulaic adherence to process in matters of data protection, which loses sight of the fundamental objectives of the policy, can have grave, adverse 462 consequences, not only in the cases that have been alluded to, but in many other areas, including medical research?

§ Lord Filkin
My Lords, yes, in general I agree that it is important for people at whatever level in organisations exercising judgments as they must on the Act almost to apply tests of common sense and to check whether those tests of common sense comply with the law. I wish to emphasise that perhaps these are calls to all organisations, including central Government, not to say that the Act needs changing—albeit that it may not be the clearest—but to see whether there is more that we need to do to try to get the double objectives of the Act lived in practice throughout our organisations. That is what we should all do, including the DCA.

§ Lord Laming
My Lords, would the Minister agree that perhaps the Government could be clearer in the guidance that they give? There is now a widespread belief among professionals across the services that they cannot exchange concerns about the well-being of a child unless there is clear evidence of child abuse. That is a serious inhibition to good practice.

§ Lord Filkin
My Lords, coming from the noble Lord, Lord Laming, I will take that question very seriously indeed. I will undertake to look with officials and the Department of Health at the charge that he has posited that there is confusion in social services in these matters. It is critical that we minimise any confusion and that people do not hide behind a convenient excuse that they cannot do things, when common sense tells them they ought to be doing them. That is the thrust of what I have learned from many of these issues. One then has to see if one can test whether the law, as we believe it does, allows them to do so. I will undertake such an informal review in the way that I have indicated.