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Baroness Ashton of Upholland: My Lords, I begin by saying to the noble Lord, Lord Lester, that the Information Commissioner has a role in providing general guidance around the Data Protection Act, but the specific guidance in such matters is addressed by the Secretary of State. In this case no one is either right or wrong; it is just different in terms of the guidance we are issuing.
I, too, express my thanks to the noble Earl, Lord Northesk, and the noble Lord, Lord Campbell of Alloway, for their time yesterday. I thought that we had an extremely useful and fruitful discussion around many of these issues. I am extremely grateful to both noble Lords for recasting their amendment.
It will come as no surprise that I do not intend to accept the amendment as it stands, for a number of different reasons. However, I hope that the reasons for which I will not accept it will find favour, particularly with those who tabled the amendment and with all noble Lords who have spoken. I hope one day to stand on the same side of the line as the noble Baroness, Lady Barker. I do not think that there is such a line in the sandwe seek the same thing, but as the noble Baroness, Lady Barker, will know, it is more complex to get there.
I also wish to reassure the noble Countess, Lady Mar, that there is no case information of any kind on the database. I understand the noble Countess's concerns. She has explained them to me and I continue to consider them, but in this context I hope that what I have said is of some assurance.
I am pleased that we have reached the point of recognising that the Secretary of State is responsible for bringing together the guidance. I am also pleased that the importance of the guidance has been well recognised in your Lordships' House in the way in which the amendment has been framed. I am also pleased that we have not lost sight of the role that the commissioner might play in that. Indeed, yesterday we reversed the amendments slightly, because it is important that as the commissioner develops expertise and talks to children and so on, he is able to feed into the guidance what he knows and what he believes to be right. I would want that to be part and parcel of the function. Without imposing an obligation on the commissioner, I would hope that it would be a natural part of the role.
The fundamental fly in the ointment, to borrow the phrase of the noble Lord, Lord Campbell, is that we do not need the amendment for the Secretary of State to issue the guidance that the noble Earl, Lord Howe and the noble Lord, Lord Campbell, seek. Under the Children Act 1989, the powers already exist. The noble Lords will remember that I went off to see the lawyers after we met yesterday to confirm and check. It is right and proper that one of the ways in which we are
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supported by parliamentary counsel and by legal opinion is by them ensuring that we do not duplicate existing law or make laws that are difficult to interpret. In this case, the 1989 Act already provides the powers.
As noble Lords will know, under Clauses 7, 8 and 9, the Secretary of State can issue guidance to which the recipient must have regard. We are clear that comprehensive statutory guidance is needed for the reasons given by noble Lords and not least because of what the noble Baroness, Lady Barker, said about taking away the lack of certainty around what sort of information should or should not be shared. Being clearer about the ways in which we want people to work together is important. Clarity, as the noble Earl, Lord Howe, said is important if we are to ensure that we safeguard children and protect them well. We must do so effectively and efficiently to ensure that our actions do not lead to the sort of negative outcome about which the noble Countess, Lady Mar, is so concerned.
I can also reassure the noble Earl, Lord Howe and the noble Lord, Lord Campbell, that almost all the issues that are mentioned in the amendment as needing to be supported by guidance will be covered by guidance under our proposals. I am grateful for the suggestions that have been made to me. In relation to (3)(a) in the amendment, we do not think it is right to set out a detailed list of information that practitioners must share because as the noble Lord, Lord Laming, said, we do not want to cut across the important general duty to share information. We might run the risk of information being excluded because people feel that it is not included in a list.
The noble Earl, Lord Howe, talked about the training needs of those involved. It is important that the work to do with guidance, support and information sharing is backed up by the kind of training and support that the professions need. Noble Lords who had the benefit of meeting the Trailblazers may remember that the vast majority of the £1 million given for each project had been spent on training, to very good effect. I do not underestimate for one moment the importance of that in ensuring that things work.
The duties in Clauses 8, 21 and 23 involve an implied responsibility to share information when it is judged to be in the best interests of the child. We want this to be part and parcel of the way in which organisations and the professionals employed in them meet their duty under the clauses. The guidance that we are intending to produce under Clauses 7 and 8 will provide greater clarity on the circumstances under which information may be shared to promote the welfare, safety and well-being of children. We will make it clear how practitioners will be able to share information appropriately in compliance with the data protection principles in the Data Protection Act 1994. As the noble Lord, Lord Lester indicated, the Information Commissioner's guidance will come into play at this point.
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On the issue of the databases and new Clause 9, we will specify through regulations how they will operate and guidance and directions will set out what practitioners and those managing the databases should and must do. We plan to issue draft guidance in the autumn of this year and the guidance will be available before the duties are commenced next year, assuming that the Bill passes through this House and through another place. It will include guidance on information sharing as well.
We hope that we have covered as noble Lords would wish the areas of information sharing in both the guidance and the regulations, and how the implementation will be undertaken in the context of the training regime.
We are not in favour of regulations that will penalise contravention of the guidance. We want to rely on the traditional application of statutory guidance. We do not think that we should institute a separate regime for information issues. We must ensure that good information sharing practice is embedded in the overall approach to the planning and delivery of services. That is why we intend to cover information sharing in the statutory guidance under Clauses 7 and 8. Good practice in information sharing should be part of the overall good practice in the established inspection framework, and will form part of the professional development for the workforce as a whole. We want to ensure that we disseminate good practice as we identify it and work with professionals in so doing. We also want to ensure that all this is in place. The funding for any databases will be partly based upon whether all of this is in place, to ensure that there is appropriate use of the database.
Our general approach will be to use our existing powers under the Children Act, to use effectively the role of the Children's Commissioner and of the Information Commissioner and to deal with contravention using the Data Protection Act 1994. We want to ensure that statutory guidance is followed in the way in which it has traditionally been followed by professionals who understand its importance and relevancewho know that it cannot be ignored without good reason and good cause. We do not want to specify too rigidly on the face of the Bill the provisions on information sharing for fear of excluding elements of information sharing, which could be dangerous and would certainly be unsatisfactory. We do not want to move away from that principle.
I can say to the noble Earl, Lord Howe and the noble Lord, Lord Campbell, that we are continuing to discuss this area. I have no doubt, though I cannot predict, that it will be discussed in another place. We will continue to keep those who tabled the amendment in touch with what we are doing. As we develop the regulations and guidance we will ensure that noble Lords who have been part of the debate are aware of what is happening.
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We are grateful for the points that have been raised. On the basis that we have covered with legislation, guidance and regulations all of those points, I hope that the noble Lords will feel able to withdraw their amendment.
The Earl of Northesk: My Lords, I am grateful to the Minister for her response. I am also grateful for the support offered by many of your Lordships to the amendmentparticularly that offered by the noble Countess, Lady Mar, the noble Baroness, Lady Barker and my noble friends Lord Howe and Lord Campbell. As I must, I pay due heed to the strictures of the noble Lord, Lord Laming. He may rest assured that I draw a great deal of comfort from his support, qualified though it may be. Indeed, I favour his recommendation, namely that the underlying principles of the amendment should be supported on the basis that it would be knocked into shape in another place. Indeed, my noble friend Lord Campbell's remarks followed the same vein. However, it is a source of regret to me that the Minister chose not to pick up on the point.
The Minister assures me that the powers exist already under the Children Act 1989. However, this is the crucial pointthe mere existence of the powers has not given rise since 1989 to any improvement to the culture of information sharing.
It strikes me as idiotic to continue to rely on the extant powers when the reports of Sir Ronald Waterhouse, the noble Lord, Lord Laming, and Sir Michael Bichard continue to demonstrate that a problem exists. Moreover, guidance issued under later clauses in the Bill, to our judgment, lack sufficient legal efficacy to ensure that it will be paid attention to.
For those two reasonsand with a deep sense of regret, in truth, because I do not believe that our position is very much removed from that of the GovernmentI think that I have no option other than to test the opinion of the House.
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