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Lord Luke moved Amendment No. 44:


Page 5, line 20, at end insert--
(“(e) reimburse any such business for reasonable costs incurred in copying or providing the information requested;")

The noble Lord said: I shall speak to Amendments Nos. 44 and 45 in this grouping and my noble friend Lady Byford will speak to Amendments Nos. 46 and 47.

A business employing 3,000 people with photocopying charges down to less than 1p per page and a central print facility will regard the production of a few extra sheets of paper as trivial. A farmer or a small cheesemaker on the other hand, with a printer that costs 10p plus a page to run and a photocopying facility which is five miles away and charges 5p or 10p per sheet, will think differently. Moreover the businesses may well be making millions in profit while certainly in the current climate, the farmers will be lucky to be making hundreds, and may even be making losses.

In essence, Clauses 10 and 11 concern the agency's powers to carry out observation, gain knowledge, giving it the facility for checking information, deduced, supplied or summarised. These are perfectly reasonable requirements as long as their fulfilment does not result in yet another charge to agriculture and the food-processing industry, one more charge, moreover, which is likely to weigh most heavily on those least able to bear it.

We note that the Bill empowers the agency to pay its members, to employ staff, to pay salaries and expenses, as it sees fit, to members of its advisory committees, and to receive moneys from Wales, Scotland and Northern Ireland. It is therefore only fair to enable an authorised person, acting on its behalf, to reimburse costs from those from whom it seeks information, particularly small businesses. I beg to move.

Baroness Byford: I rise to speak to Amendment No. 47. I have already referred to this clause as has my noble friend Lord Luke. The amendment asks the Government to insert after “secret" the words “or personal data". I have great difficulty with the amount of information that is likely to be required under this clause, which refers to observation.

I find that the Government who have such strong public support do not appear to be concerned enough in the Bill about the private individual's privacy. The media have been broadcasting and writing for a long time now about the world-wide influence and powers of multi-nationals and about the control wielded over governments by global moguls. I am, however, saddened and surprised to read in the Bill that trade secrets are more valuable than personal private information and that, in addition, the former are to have special protection while the latter have none.

It need not be medical information that is to be revealed. It could, for example--and I say this in all humility--be someone who perhaps is paying for the support of a child which is not part of the family and

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whose existence is known to a few. It could be someone who is ill. It is possible for someone to jump to the wrong conclusions about the reasons for those payments and cause a lot of distress.

I hope the Committee will agree with us that it is a serious matter and that the point should be considered.

Lord Rowallan: I must apologise for not being present when my noble friend Lord Luke introduced the problem of being in the Committee next door and mental health problems at the same time.

I am extremely concerned about Amendment No. 44. We are asking for draconian powers to be given to this agency to “inspect and copy any records" as is stated under Clause 11(4)(c). It does not state that those have anything to do with the problem that the agency is investigating at that particular time. Any records found on the premises may be copied and must be put into legible form. I have to admit that my computer always gives everything in legible form, so I am not quite certain why that does not work.

I am concerned with this because it could amount to an enormous amount of paper, and it is essential that the owner of any business is recompensed if he has to produce records which do not seem to have anything whatever to do with the case that has been brought up, unless I totally misunderstand what is in the Bill.

Baroness Hayman: I shall respond to this group of amendments and take the separate issues that have been raised one by one.

I can quite understand the thinking behind Amendment No. 44. It would be wholly unreasonable for an authorised officer to put a business to huge expense in photocopying documents or finding information; but we have to look at this in context. The officers acting for the agency in carrying out observations will be under a general duty to behave reasonably and proportionately. We anticipate that the agency will provide general guidance to its officers to ensure that they behave reasonably. There is therefore no reason why this function should result in onerous burdens or costs. Indeed, it is hard to envisage circumstances where it might. However, as the noble Baroness, Lady Byford, pointed out, the agency has power to make disbursements and, if it were considered reasonable and necessary to do so, it would have the discretion to meet reasonable costs just as, for example, when carrying out a survey at retail level, the samples would be purchased. I hope that that is reassuring to noble Lords.

I fully understand the concerns about burdens on businesses at the moment, and particularly burdens on small businesses, but the powers of the agency to ensure food safety by looking at records such as this are absolutely integral to its monitoring function. This may be a dangerous thing to say because everyone becomes keen to break with precedent, but it would not only be unusual but also unprecedented to provide reimbursement of a business for compliance with the law. That is what this amendment would require.

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I hope therefore that noble Lords are reassured that we see no reason why that should normally present any large burden. It is part of the burden of being in a regulated industry and for that I make no apology. However, in circumstances where it was outwith the normal and proportionate costs, there would be some leeway within the agency to meet costs if that seemed sensible.

Moving on to Amendment No. 45, it should be clear from the powers contained in Clauses 10 and 11 that the agency will need to be able to observe all aspects of food production and supply that are relevant to its remit of protecting public health. People employed by food businesses who carry serious infections that are transmissible through food pose a potential danger to public health and that has been evidenced in the past. Records held by businesses to monitor the suitability of employees for handling food destined for sale to the public are, therefore, relevant to the agency's work. Certain types of food businesses keep such records for the purpose of giving effect to the EU vertical food hygiene directives.

However, I should like to make it clear to noble Lords that the records referred to in Clause 11(6) are quite different from personal health records as a generality. They are not a clinical matter and would not be sought by the agency. That is very specific on the particular health records that might be of relevance and are specific to the handling of food destined for sale to the public.

I should also make it clear that under Clause 11 the agency would only be able to obtain information that is reasonably necessary for the purposes described there. It would not routinely be seeking to publish information from records of this kind held by food businesses. Where access was necessarily obtained, there is no presumption that the agency would seek to disclose information on individuals since it would be obliged to take account of personal confidentiality as provided in Clause 19, and the advice is that this would be entirely consistent with the terms of the Human Rights Act 1998.

I turn to Amendment No. 46 which will require the consent of individuals.

Baroness Byford : I hope the noble Baroness will give way. I have not spoken to Amendment No. 46 which states,


    “for which there is written authorisation to disclose from the person concerned".

We now come to the amendments which relate to matters which we, on this side of the Committee, believe to be of fundamental importance--namely, the value to our society of maintaining our concern for respect of privacy.

Even in this day of electronic filing, medical records are confidential. Precisely because of electronic wizardry, it is even more important that they remain so. Surely we have a duty to guard against loans being refused, insurance terminated or jobs lost because a medical history has been revealed by an unauthorised disclosure or gossip.

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It is right and proper at certain times--for instance, when applying first for life insurance--that we reveal our medical history in confidence to the insurer. But it is not right that our medical histories are revealed by a third party to a person carrying out observations designed to improve the general level of knowledge of a body whose members are bound by no form of personal privacy legislation.

In the next subsection of this clause, we learn that anyone disclosing information regarding trade secrets is deemed to be guilty of an offence and liable to a fine. However, that same person could go out of the premises and reveal in a pub that the managing director's secretary was unwell, and there would be no redress.

If there is an outbreak of food-borne disease, we all expect and hope that the responsible qualified investigators will move in, find the source, eliminate the problem, and render the affected output safe once more. In those circumstances, people working in and for the food processors or retailers have to be prepared for an outsider to access their medical records. That access should, however, be denied in circumstances where there is no emergency; where there is no infection; or where there is only a desire for general background knowledge and where the observers or authorised persons may be anyone with no level of medical qualification.

5.30 p.m.

Baroness Hayman: It is helpful that the noble Baroness explains the concern around Amendment No. 46, which I understand. Let me reiterate that the records to which we are referring here are those that have a direct bearing on public health. They include the kind of information which is covered in the EU directive to which I referred and they are not the generality of personal health records, which would not be covered and would not be sought by the agency. Some of the general issues to which the noble Baroness made reference would not be covered.

We believe that it is right, in the emergency situation of an outbreak, that the agency should be able to gain access to those sorts of health data in fulfilment of its general function of keeping under review relevant information without having to obtain prior consent. That is because of the emergency nature of what we are doing and it is entirely consistent with the terms of the data protection legislation which, in such circumstances, does not require written consent.

In practice, the agency would only need access to even those records in rare circumstances. It would not routinely be concerned with the health of food handlers but with the safety of foods themselves. It is however right that it should have the appropriate powers to investigate if it is really necessary that it should do so to protect public health. Amendment No. 46 would make it unduly difficult so to do.

I accept that the important principle of respecting privacy should be observed by this agency, as it should be observed by government overall. But I hope that the

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noble Baroness will be reassured that the data protection legislation covers the normal run of circumstances and that inserting a requirement for individual written consent here would be unnecessary.

Perhaps I may equally reassure the noble Baroness on her point concerning Amendment No. 47. The agency and its officers are not entitled to disclose personal information, except in the performance of public health duties. The example of talking in the pub about information gained in that way is protected under the terms of the Data Protection Act, with which the agency will be required to comply. That general protection of information, therefore, other than in the discharge of those public health duties--to stop people transmitting such information--is covered by the Data Protection Act. The circumstance that, quite rightly, is worrying to the noble Baroness is thus covered by the overarching protection of the Data Protection Act.


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