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The aim of the personal advisers must surely be to develop a rapport and degree of trust with claimants. If claimants find that information has been obtained from the police or their doctor, or that information is passed on, the claimant will inevitably be afraid, will lose any element of trust in those involved, and will simply discontinue their claim. If the aim is indeed to frighten claimants off the benefit count, Clause 9 will
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We can also consider Clause 9 from a human rights perspective. The proposals are, I understand, a clear breach of Article 8 of the European Convention on Human Rights and a potential breach of the data protection laws. To argue that the information is being obtained to prevent fraud, and for the prevention and detection of crime, is wrong in law. A fishing exercise is not a targeted approach to preventing or detecting crime.
The Bill makes clear that failure to disclose drug use will be met with benefit sanctions. There is no recognition that the DWP would be seeking evidence of a criminal activity—the use of a drug. You cannot expect claimants to confess a crime to government officials. As we know, other forms of addiction, such as to nicotine and alcohol, are not criminalised. I would not have a problem with the DWP asking questions and seeking corroboration about cigarette use, for example. At least such an information exchange would not raise the serious issues raised by Clause 9.
Until the Home Office catches up with the DWP in regarding drug use as a medical problem, the DWP cannot have information exchange with other agencies at the heart of its benefit sanctions policy. The BMA is concerned that doctors could be required to supply information to the Secretary of State or a person providing services to the Secretary of State. It points out that there is no clarity over whether the information expected from a doctor, as the prescribed person, would be confined to previous episodes of care that are directly relevant to the claimant’s drug or alcohol misuse and treatment.
I would be grateful if the Minister could clarify for us the terms under which doctors would be required to disclose potentially highly sensitive health data. Under existing law covering the provision of health data, they are supplied to the medical officer of the DWP or an officer acting directly on a doctor’s behalf. The doctor supplying the data therefore knows that they will be held under the protection that the GMC requires, as there is another doctor whose professional reputation and, indeed, registration demand such protection.
The BMA shares my concern about the provision for the onward disclosure of this information. It notes that the proposal seems to authorise the unrestricted further or onward disclosure of highly sensitive and personal information supplied for the purpose of confirming an individual’s misuse of drugs or alcohol. There is no clarity over whether the onward disclosure of information is confined to those directly involved in the claimant’s treatment. Indeed, sub-paragraphs (2) and (3) seem to contradict the Government’s stated policy objective of helping claimants on drugs or alcohol back into the workforce.
Our amendments in this group provide minimum safeguards to prevent the worst consequences of the information exchange provisions of paragraph 9 of Schedule 3. Amendment 99 ensures that for JSA claimants
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Amendment 103, with respect to JSA claimants, and Amendment 109, with respect to ESA claimants, ensure that information supplied under the regulations by the claimant or others could be used only for the purposes of determining the claim. That is the amendment that I would really like to see adopted. It would be proper and appropriate and not a breach of the Human Rights Act and all the rest of it.
Amendment 104, with respect to JSA claimants, and Amendment 110, with respect to ESA claimants, delete the offending sub-paragraphs and thus prevent information obtained by the DWP being used by others—the police or the Home Office, for example—to amend or supplement their information. The approach to the whole business of information is most concerning.
These amendments also prevent such information being used by others outside the DWP for any purpose. In fact, if the other amendments were passed, these sub-paragraphs would become redundant and would need to be deleted. Others will press for Clause 9 not to stand part of the Bill, and I would consider doing that if the Government are not willing to revisit this clause and change much of it to turn it from a very dangerous piece of legislation into something that could be productive and helpful. That is the route that I would prefer. I would welcome it if the Minister would think about how this could be made to work, taking account of the serious points made by all Members of the Committee.
Lord Skelmersdale: Perhaps I may come back to the situation. I shall not repeat what I have already said, but it is clear from it that I agree with many of the worries that the noble Baroness, Lady Meacher, has just expressed. One comment that I must make about what she has just said is that page 27 of the Peers’ information pack clearly states:
“All these will be one-way data flows. We do not intend that jobcentre Plus will pass information back to the criminal justice agencies”.
Can I take it from that that the noble Baroness is slightly skewed in her thinking and that the information will not come out of the jobcentre in any event but will always go in? That would be an important safeguard. Where does the Bill tell us that? I have not found it and it is clear that the noble Baroness, Lady Meacher, has not found it, but the Peers’ information pack clearly has.
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I am not convinced of the need for Amendment 99, which would restrict the use of this information in civil trials. There may be circumstances—in proceedings for negligence against the jobcentre, for example, although I have not developed my hypothesis with any level of detail—that might require the revelation of some details. In other words, I could see occasions when information might come out in the case of a civil trial, although that would be pretty rare. Perhaps the Minister could help me there.
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I note that the amendment qualifies that exclusion with the caveat that the person might consent to the release of the details to a third party. If the permission is on the claimant, that puts a totally different complexion on the whole matter. I have no doubt that concerns will be raised about the provisions that allow for the sharing of data between the jobcentre and various law enforcement agencies, but, as I said, I do not believe that this is a genuine worry. I hope that the Minister will be able to explain why.
Data security is extremely important and something on which I have to say the Government have a less than inspiring record. I expect that we will see this matter raised again at the next stage of the Bill if the Minister does not do quite such a good explanatory job as he did on the previous amendment, which was masterly. I would have thought it would be in his best interests to be as open and explicit as possible about the Government’s intentions here in Committee so that, with a bit of luck, there will be no need to return to this matter on Report. We will just have to see.
Lord Rea: I shall speak to Amendments 100 to 102. Amendment 101 takes out all the provisions that allow the Secretary of State or a person providing services to the Secretary of State—that is, a benefits worker—to ask for drug information on a benefits claimant from the police, the probation service or other such persons as may be prescribed. It would also take out the provisions that allow that information, having been received by the Department for Work and Pensions, to be passed on to others.
I felt that the noble Lord, Lord Skelmersdale, did not realise that there was such a provision, but paragraph 5(3) of new Schedule A1 says:
“Regulations under this paragraph may, in particular, authorise information supplied to a person under the regulations ... to be used for the purpose of amending or supplementing other information held by that person; and ... if it is so used, to be supplied to any other person, and used for any purpose, to whom and for which that other information could be supplied or used”.
That is a little complicated in its wording, but it seems to allow this information to be passed on to quite a wide circle of other people.
Amendment 108 is almost exactly the same, but it applies to the employment and support allowance rather than the jobseeker’s allowance. If the whole paragraph cannot be taken out, Amendment 101 is more limited.
I doubt that Amendment 100 will be accepted. It would merely take out the words,
This could include almost anyone. Liberty commented:
“Such information is highly personal and it is worrying, given this government’s history of data loss, that such information may be provided to an unspecified number of people”.
Amendment 102 is more limited in that it excludes only health and social care workers from the provision that allows them to be approached for information, because they are the people most likely to have been given information by the client in confidence. There are three choices of level, but the people on them are all are highly critical of the blanket provision in the Bill.
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Baroness Thomas of Winchester: If the data are a one-way flow, which we believe they are, why does the Peers’ information pack state, as the noble Lord, Lord Skelmersdale, said, to whom the information will not be passed if no information is passed back? It makes us a bit suspicious when the pack says that it will not be passed back to the criminal justice agencies. You think, “Well, why don’t they say they won’t pass information back to anyone?”. Perhaps the Minister can explain that.
Baroness Afshar: Again, I repeat my worry that, by having this information on record, people who may not be in the category of drug users that is envisaged in the Bill will be labelled drug users. Employers are unwilling to go near drug users because of this attribute of criminality and all the rest of it, so this goes against what the Bill wants. It is very important to have an assurance that, if this information is given, it will not go beyond the person to whom it is given.
Lord McKenzie of Luton: I am grateful for the chance to address these amendments and, I hope, to reassure noble Lords about what the provisions are intended to achieve, although I acknowledge that they may be seen to be drawn quite broadly. I thank the noble Lord, Lord Skelmersdale, and the noble Baroness, Lady Meacher, for giving us the chance to debate these amendments.
These provisions are not about frightening people off benefits. That is genuinely not what we are about here. Nothing could be further from the Government’s intention. I set out the policy intention behind the drugs provisions and the reason why Clause 9 should stand part of the Bill in an earlier debate. The new drug and employment support programme will provide integrated and personalised support for problem drug users—those dependent on heroin or crack cocaine.
Schedule 3 inserts a new section and schedule into the Jobseekers Act 1995 and the Welfare Reform Act 2007. The new provisions will allow the Secretary of State to make regulations that relate to people who claim the JSA or the ESA and who are dependent on, or have a propensity to misuse, drugs or alcohol to the extent that it affects their ability to gain and keep employment. Some of those regulations will concern the supply and use of information. Noble Lords have tabled a group of amendments on these issues, as we have heard. I will deal with each of the amendments in turn.
The Bill already ensures that the information covered by Amendment 99 cannot be used to incriminate a claimant who has provided it. It cannot be cited by the prosecution in criminal proceedings unless the defendant, or a person acting on their behalf, chooses to raise the matter. That is very clear. Jobcentre Plus will use information about a claimant’s drug use only to enable the operation of the new drug and employment programme. Information provided by a claimant in answer to a question about their drug use or the result of a drug test might therefore need to be passed on to the drug worker who carries out the substance-related assessment, or to the employment support provider. However, this information will be handled in strict confidence. Jobcentre Plus will not disclose any
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There may be some instances in which information needs to be disclosed because this is in the overriding public interest; for example, where disclosure is necessary to prevent harm to a child. However, any disclosure would have to comply with the Data Protection Act 1998, and be compatible with the European Convention on Human Rights. Information provided by claimants about their drug use would be sensitive personal data, and the processing of the information would be subject to additional requirements under the Data Protection Act. If a member of staff discloses information without lawful authority they would be committing an offence under Section 123 of the Social Security Administration Act 1992, which is punishable by imprisonment.
However, we do not believe it to be appropriate to agree to a provision which routinely prevents the use of this information in connection with civil proceedings. The noble Lord, Lord Skelmersdale, was right on that. These may include family court hearings where the use of class A drugs by a parent might be a relevant matter when making a decision about the residence of a child. This amendment would also mean that information from the claimant in answer to questions about their drug use, or information disclosed in connection with a substance-related assessment or drug test, could not be referred to in an appeal against a benefit decision. That clearly would not be sensible.
On Amendments 100 and 108, paragraph 5 is intended to help Jobcentre Plus identify problem drug users so that they can be provided with the support that they need to prepare for and find work. We are aware that some problem drug users will not disclose that they have a drug problem due to stigma or embarrassment, or other reasons, but we do not want them to miss out on the support that will be available.
Regulations will allow information to be supplied to Jobcentre Plus by the police, Probation Service or other person as may be prescribed. It will be used to check and supplement information already held about a claimant’s drug use. The information already held may include the claimant’s answers to questions about their drug use, the results of a substance-related assessment, and, in a minority of cases, the results of drug testing. However, I reassure noble Lords that none of the information supplied under paragraph 5 will contain medical details, and no data will be provided from Jobcentre Plus to the criminal justice system.
The Probation Service will provide details of people who are subject to a drug rehabilitation requirement. These are issued by a court, as part of a community sentence, and require those convicted of a crime to undergo drug treatment. About 16,000 of these are issued each year. Supply of this information will enable them to be included in the programme.
Information will also be supplied about people who fail to attend for a police “required assessment”. This means they tested positive for drug use when arrested or charged with an offence and then they failed to
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Lord Rea: Did the noble Lord say that no information would be obtained from doctors about the care of clients? If so, will he agree to include the words in Amendment 102,
Lord McKenzie of Luton: I was just coming to that very point. Amendments 101 and 102 focus on this particular power. Amendment 101 removes it entirely, and Amendment 102 exempts health and social care workers from its scope.
Both amendments would prevent the use I have just described. We also intend to use this power to obtain information about people who have recently left prison from the Prison Service. Many prisoners are treated for drug problems while in prison, and will claim benefit on release.
It is important that we identify them at this point. In future, it may be considered appropriate to authorise other persons or bodies to supply information. Therefore, it is important that we retain flexibility in the powers of paragraph 5(1).
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Regulations authorising the supply of information by prescribed persons will be subject to the affirmative parliamentary procedure, so before they can come into force they will have to be approved in draft by both Houses. Therefore, there will be an opportunity to consider and debate the regulations. Information supplied in paragraph 5 will be treated in strict confidence and will be used only to the extent that it is necessary to check the accuracy of information given by claimants about their drug use, and to enable the operation of the new drug and employment programme. The regulations will include safeguards to ensure that the use and sharing of the information is proportionate to our aims. The processing of the information will have to comply with the Data Protection Act 1998 and be compatible with the European Convention on Human Rights.
Baroness Meacher: What did the Minister mean when he said that information obtained from the police or the Probation Service would be used to supplement information already obtained about the drug use of the claimant? Suppose the claimant had denied drug use and then a submission was made to the police or the probation officer to ask if they had any evidence. You could say that this would be supplementing the information from the claimant. If it became known to claimants that inquiries to the police or the Probation Service will be made if they claim benefits, I would again assume that claimants will simply run a mile from the benefits system because
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Lord McKenzie of Luton: It is very much to cover the circumstances that the noble Baroness identified. If somebody has come into Jobcentre Plus, been asked about drug dependency and has answered that they have none, but the flows of information from the police suggest otherwise, having that information available to Jobcentre Plus is quite important. This is particularly true for the category of people I have just described, who do not turn up for the assessment. It enables the assessment to be undertaken or mandated, and potentially opens up the gateway to the programme of support that is available. That would be the nature of the flow for somebody who has come in and lied about drug dependency. I can understand that people are concerned about it. This would be a supplementary source of information that could identify potential problems.
Shortly I will perhaps have a more precise answer to that and the question of why, if we did not have that gateway, it would preclude the question leading to the assessment. That is the thinking behind those flows. The Bill is quite clear about what that information can be used for. Paragraph 5(3) states:
“Regulations under this paragraph may, in particular, authorise information supplied to a person under the regulations—
(a) to be used for the purpose of amending or supplementing or supplementing other information held by that person”.
That is the thrust of that information.
Lord Skelmersdale: The Minister did not continue paragraph 5(3)(b), which I think is what concerns the noble Baroness, Lady Meacher, and is beginning to concern me. It goes on:
- “if it is so used, to be supplied to any other person, and used for any purpose, to whom and for which that other information could be supplied and used”.
It would be helpful if we could be told exactly what that means because it is the origin of the suspicions around this.
Lord McKenzie of Luton: I am happy to deal with that point and I promise that I shall come to it shortly.
We do not intend to use the power to authorise the supply of information obtained by persons in the course of providing treatment, counselling or care to claimants. For example, the power will not be used to authorise the supply of information held by doctors or the supply of any medical details of the claimant. That is as specific as I can be on that. I hope my noble friend Lord Rea is comforted by it.
Lord Rea: The noble Lord is always approachable and helpful, so would he agree to see before Report a group of representatives of health and social care workers to discuss whether some wording could be put into the Bill to reassure them further?
Lord McKenzie of Luton: Yes. Given the discussions we have had today and the range of concerns raised, I shall be pleased to do whatever I can between now and Report to engage on all of these issues. It is important that we do that.
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On Amendments 103 and 109, which concern the disclosure of information, as the Bill is drafted, paragraph 5(2) will allow regulations to provide that information obtained under paragraph 5(1) from the criminal justice system could be supplied by Jobcentre Plus to other third parties and to impose limits on the circumstances and the extent to which the information could be disclosed. These amendments would remove that ability. Instead, the new sub-paragraph would limit the use of information supplied by a claimant under paragraph 5 so that it could be used only for the purposes of determining the benefit claim. I can reassure the Committee that regulations made under the power in paragraph 5(2) can allow information to be provided to a third party only in relation to ensuring the accuracy of information given by claimants about their drug use, or where it is otherwise needed to operate the new drugs provisions. Paragraph 5(2) enables regulations to impose further limits on the circumstances in and the extent to which this information can be disclosed. The safeguards that I have already outlined will apply here too.
The main purpose for which we need to rely on paragraph 5(2) is to allow information from the police, drug workers or the Probation Service to be passed on to the drug treatment provider who carries out a substance-related assessment. For example, when referring a person to a substance-related assessment it might be appropriate to disclose that they had failed to attend a police-required assessment. Therefore, our intended use of the power at paragraph 5(2) is limited, but it is important that we retain flexibility to authorise the supply of information to other persons involved in operating the drug and employment programme where it is necessary to properly assess a claimant’s drug use and to enable the programme to operate effectively. If the amendment were accepted, the operation of the drug and employment programme could be hampered.
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