Draft Data Protection (Processing of Sensitive Personal Data) (Elected Representatives) Order 2002

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Mr. Hawkins: I join the Minister in welcoming you to the Chair, Mrs. Roe. It is a pleasure to serve under your chairmanship.

I have two preliminary points to make. First, it is important that I should declare my interest as a member of the Bar. Although I am not involved in cases on a day-to-day basis, I undertook some data protection work earlier during my time as a Member of Parliament. Secondly, as the Minister has mentioned that there is a new Information Commissioner, I should say that I have known Mr. Richard Thomas as a professional friend for many years, going back to the period when he was involved in fair trading work and, more recently, during his time as a partner at Clifford Chance. I am delighted that he has been appointed as the new Information Commissioner, but I also pay tribute to his predecessor.

As delighted as I am to be joined by my hon. Friends the Members for Bromsgrove (Miss Kirkbride) and for Wycombe (Mr. Goodman), the Minister will be aware that my hon. Friend the Member for Upminster (Angela Watkinson) would be here but for the fact that she is on an arduous cross-party visit to Iran, accompanied by Government Members and Members of the other place.

The Opposition welcome the draft order. Many Conservative Members and other hon. Members have been pressing for changes along the lines set out in the order. Data protection provisions have been a matter of concern to elected representatives. There did not seem to be proper provision to protect elected representatives at every level-from parish council right up to the Houses of Parliament-from some of the difficulties arising from the data protection legislation that the Minister has outlined.

It is fair to say that some hon. Members on both sides of the House were aware that there might be difficulties at the time the data protection legislation was introduced. I certainly recall the debates that took place at that time, and the points made then have been raised in other debates on related measures, such as the Regulation of Investigatory Powers Act 2000, with which my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) dealt as a shadow Home Office Minister during the last Parliament.

There is a balance to be struck, and it is fair to say that the Conservatives agree that the draft order strikes the right balance. It is important to remember that the issues with which it deals do not affect only Members of Parliament; they can affect elected representatives at any level. I am conscious of that from working with councillors, and my wife used to be a county councillor and the chairman of a parish

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council. With people keeping data on computers, such issues can affect people at any level of the electoral process.

The Minister is right to say that the way in which the Government are addressing the issues is proportionate. She has very helpfully said that she will discuss with the new Information Commissioner whether a letter can be sent to all hon. Members. If the commissioner agrees to that it would be helpful. Perhaps similar information could be supplied more widely through the Local Government Association and the various organisations representing parish councils nationally. I mentioned that my hon. Friend the Member for West Worcestershire, who is chairman of the 1922 Committee, has been very concerned about the matter, and I have no doubt that hon. Members from other parties have raised similar concerns.

When the Minister has those discussions with the new Information Commissioner will she set out the various ways that, even in the light of the new order, the commissioner's responsibilities will still affect elected representatives? We are conscious of the fact that there are still registration procedures. Some hon. Members do not like using computer databases, and if they are not using data in the way sense defined by the 1998 Act, they may not need to register. However, the vast majority of hon. Members, and a very large number of councillors, would have to have some dealings with the Information Commissioner. Given that there are to be changes, and information may be distributed if the Minister and the commissioner agree to that, it would be helpful if a comprehensive package were created defining the new position in the light of the changes. Elected representatives at every level would then be aware of their obligations, and what they would not be obliged to do if they were not going to use any sort of computer database.

If the Minister can answer that question, which is my one concern, I am delighted on behalf of my party to welcome the Government's response to the concerns raised by many hon. Members and many councillors.

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Mr. David Heath (Somerton and Frome): May I say, Mrs. Roe, what a pleasure it is to serve under your chairmanship? I do not think that I have done so before.

The Liberal Democrats, too, welcome the proposals in the draft order. Most hon. Members have experienced at least some difficulty with these issues. In my constituency work, I have often had protracted correspondences with health authorities because they did not accept that an explicit instruction from a constituent to ask particular questions or to proceed along particular lines of investigation was an explicit instruction to release data under the provisions of the Data Protection Act 1998. The order will help to clarify the position and make our work much easier.

I have a few questions about interpretation, and I would be grateful for the Minister's help. The measure deals not just with Members of Parliament, but with those serving in local government and the regional assemblies. Paragraph 3 of the schedule states that processing must be carried out by

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    ''an elected representative or a person acting with his authority''

and that must be

    ''in connection with the discharge of his functions as such a representative.''

Will the Minister clarify whether that qualification is a limiting factor on those who do not have a national mandate? It is quite clear that there are limited functions in local tiers of local authority. It would be unfortunate if, in exercising his duties at a particular tier of local authority, somebody were to come into conflict with the provisions simply because he was working beyond the strict mandate of his elected post. I cannot tell from the wording whether that consideration will have a significant effect, or whether every elected representative is assumed to have a general competence to act on behalf of his or her constituents irrespective of the matter under discussion. I hope that the Minister can provide some guidance.

The second thing that we need to understand more clearly is the provision for disclosure to a person other than the person who has sought the help of an elected representative-third party disclosure. A process is set out whereby one can proceed without the explicit consent of the data subject. There are, clearly, circumstances in which that is both helpful and necessary if we are to do our work effectively-for example, most hon. Members will have had experience of trying to help somebody who is incapacitated in some way. However, there can also be occasions on which an approach is made by a close relative or a friend whose intentions are wholly unwelcome.

I am not sure whether the provisions of paragraph 4 are sufficiently watertight for circumstances in which the processing can be carried out without the explicit consent of the data subject. Paragraph 4(e)(ii) to the schedule states that a potential alternative provision

    ''is necessary in a case where the elected representative cannot reasonably be expected to obtain the explicit consent of the data subject.''

That is a matter for interpretation. It requires either the elected representative or, in due course, the Information Commissioner or a court of law to interpret what is the reasonable expectation of obtaining explicit consent. Suppose that the data subject is a mother-in-law who lives in another part of the country: is it reasonable not to seek her explicit consent simply because she lives elsewhere and therefore cannot have a face-to-face interview with the elected representative? I suspect that that is not a reasonable expectation. However, there must be a dividing line and it is not clear in the order where that line might be drawn. Further guidance would be helpful.

There is a similar provision in paragraph 4(e)(iv), which states what is:

    ''necessary in the interests of another individual in a case where the explicit consent of the data subject has been unreasonably withheld.''

Who is to judge whether the consent has been unreasonably withheld? The matter has to be considered in the first instance by the elected representative, having heard the information provided by the person who first sought the

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assistance; but I presume that, ultimately, arbitration on the point of a challenge to that would be by the Information Commissioner. Perhaps the Minister will say whether I am correct. If I am, guidance would be helpful, sooner rather than later, on whether there was a reasonable case for withholding explicit consent. I can think of many reasonable reasons for withholding consent, but relatively few unreasonable reasons.

It is helpful that the Minister said that the draft order does not substitute for the common law of confidence. It is important that that is recognised by elected representatives and the professions that engage with them. The draft order in no way reduces the duty of confidence laid on a medical practitioner or others. There is some concern in the British Medical Association and elsewhere that the integrity of that duty of confidence not be in any way reduced by any measure that we pass.

To conclude, I entirely support what the hon. Member for Surrey Heath (Mr. Hawkins) said, that the most important element is probably guidance-guidance for Members of Parliament, guidance through the Local Government Association and organisations representing local authorities, and, equally, guidance to hospitals and other holders of information as to what is appropriate. Unless that is provided, I suspect that the situation will continue to be murky for some time. None the less, the draft order will certainly improve matters, not make them worse.

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