David
Howarth: We now come to the far more controversial clause
about information-sharing orders. We must discuss it in the context of
Sir David Omand’s paper for the Institute for Public Policy
Research, which, at the least, revealed the breadth, scope and depth of
central Government’s ambitions in the matters of data
collection, data mining and invasions of the privacy of
individuals.
Clause 152,
either intentionally or unintentionally, is part of a bigger picture in
which the state allows itself more and more powers to collect and
process personal data about individuals for purposes that are not
revealed to those individuals. In fact, the crucial issue in the debate
will be that of purpose. What happens when data are collected by the
Government for one purpose, but they want to use the information for
another purpose? That is when all the violations of the principle of
privacy will occur, and why it is relevant to mention Sir David
Omand’s
paper. No
one doubts that there are examples when data or information sharing
that is technically not allowed under primary legislation would be
helpful to the general public. The question facing is us is not whether
there are annoying and inconvenient times for the Government, and
occasionally for Parliament, when they have to pass secondary or
primary legislation to allow something that is clearly advantageous to
happen. We do not doubt that sometimes secondary legislation is not
well scrutinised, but we are concerned about the extraordinary scope
and breadth of the powers that the clause grants to the Government. It
is either lazy drafting or the consequence of a habit of mind that the
danger of such powers no longer occurs to officials or Ministers as the
sort of thing that they should worry
about. We
really ought to be worried about the breadth of these powers. They
threaten to undermine, for example, the privacy of medical records, the
scope of the use of the identity card database and any restrictions on
the use of the DNA database.
Mr.
Bellingham: Has the hon. Gentleman seen that Dr. Meldrum
of the BMA says that the clause could seriously undermine the
confidence that patients have in doctors and that it might even lead to
patients being reluctant to disclose personal
information?
David
Howarth: I saw the announcement. As lawyers, we often do
not take what doctors say as seriously as doctors do. On this occasion,
however, we have to take the point seriously, because it relates to the
point about purpose. Let us say that a patient has gone to a different
doctor because of the nature of their condition—perhaps it is a
sexually transmitted disease, which has a certain amount of stigma.
Unfortunately and quite wrongly, stigma applies to a whole range of
conditions, including mental health conditions. That patient is now
confident that confidentiality is covered by medical ethics, medical
law and the Data Protection Act.
The
information-sharing orders allowed under the clause could sweep all
that away. They allow sharing with any person, despite what any
enactment might say. A patient in that position might well be worried
that this information would subsequently—not under conditions of
law at the time—become available to people other than that
particular doctor. That is not a fanciful worry—it is a real one
that the medical profession has identified.
Mr.
George Howarth: I was going to say something slightly
unpleasant about lawyers and the hierarchy of the medical profession,
but the moment has passed, so I shall make another
intervention.
It strikes me
that the hon. Gentleman does not believe that the clause has been
designed for the purposes that he has described but fears that it could
be used for such purposes. Does he not accept that, by any reasonable
standard, it would be wholly disproportionate for anyone to use these
provisions for the purpose that he has just described, which would not
therefore stand up to any kind of legal
scrutiny?
David
Howarth: The right hon. Gentleman made that point on
Second Reading. The danger is that, first, a court might not feel
itself able to judge the proportionality of a particular measure to
some sort of vague, relevant policy goal. I shall get on to the whole
section of the clause that talks about relevant policy goals, but that
is far too vague to be subject to any sort of specific and
accurate legal review. That undermines the point that the right hon.
Gentleman is making, which is otherwise a good point, that if there
were misuse, there is the backstop of judicial review. However, the
clause is drafted so vaguely and grants such power to Ministers that
the court would be deterred from the ordinary rules of judicial
review.
Mr.
Kidney: On the medical point, Sir Mark Walport’s
memorandum states that
“It is
important to stress that the order-making power in the draft
legislation relates to Recommendation 8 in our
review”, which
concerns the fast-track procedure for removing individual obstacles to
data
sharing. 10.25
am The
Chairman adjourned the Committee without Question put (Standing Order
No. 88).
Adjourned
till this day at One
o’clock.
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