Health and Social Care (National Data Guardian) Bill

(Limited Text - Ministerial Extracts only)

Committee Debate: 1st sitting: House of Commons
Wednesday 6th June 2018 Public Bill Committees

I hope that the Data Guardian will be able to provide advice to Members of Parliament as well. I know that is not in the Bill and is not its primary purpose, but it would be a mistake if the guardian were to operate in a way that did not take any cognisance of the relationship that Members of Parliament have with local health boards, and with the health service and care provision in general.

[The Parliamentary Under-Secretary of State for Health and Social Care (Jackie Doyle-Price)]

It is a pleasure to serve under your chairmanship, Dame Cheryl, and an absolute pleasure to respond to the Bill of my hon. Friend the Member for Wellingborough. I congratulate him on bringing this important reform forward and thank him for working so constructively with the Government to put the National Data Guardian on a statutory footing.

This is an important reform. As the shadow Minister mentioned, the public are rightly concerned about information and data that is held on them and the extent to which that is shared. The new National Data Guardian will do much to reassure people that the environment in which data is held and managed is one that respects their privacy, while at the same time ensuring that appropriate safeguarding can be achieved. Given the culture that exists within our health services, the comfort with which organisations can respond to the advice given by the National Data Guardian will make for a much more effective system to support the public.

I confirm the Government’s support for and commitment to the Bill. We very much wish it to succeed. We see real benefits to all individuals in ensuring that we share health and care data in a safe, secure and legal way. The Bill will go a long way to increasing public trust in the appropriate and effective use of health and care data. The National Data Guardian has already established herself as an independent and authoritative voice for the patient and service user in how their data is used in the health and adult social care system.

Let me address some of the points that have been raised. Clearly, my hon. Friends will be concerned about the potential costs, as we would be as Conservatives. The estimates we have established as a result of the impact assessment provide for some extra expenditure, and that is for additional staffing so that the published guidance has a legal status—that will be a natural outcome of putting the Data Guardian on a legal footing. There will be some additional costs, and we have been generous in our estimates for them.

The shadow Minister asked a number of questions about other agencies that might be covered by the Bill, and as my hon. Friend the Member for Wellingborough said, the Bill as drafted covers public health. Provisions in the Bill will extend to local authority functions with respect to adult social care, but not to children because they are covered by a different legal framework.

The hon. Member for Rhondda raised some good points to which we could ask the National Data Guardian to have regard. He is right to say that we as Members of Parliament often take up health and social care issues on behalf of our constituents, and nothing is intended to get in the way of that. Indeed, it could be helpful to us if the National Data Guardian gave instructions to those bodies about their obligation to be open and transparent. I am sure that the hon. Gentleman, and other hon. Members, have often found that the spirit of openness that we expect when we challenge something is not always respected. In that culture of openness, and with respect for privacy and safety, we support the Bill.

[Mr Bone]

I am grateful for the support from the Minister and the shadow Minister, and I wish to pick up on a couple of points. The appointment will be down to the Secretary of State, but I absolutely expect it to go to the Health and Social Care Committee—I think that is understood. A point was raised about advice and having written reports on what is being done, but the argument against that is that we want to see action. There is some confusion—the Data Guardian is not a regulator, and therefore that is not its role. All organisations are covered by a regulator and will take into account what the National Data Guardian says. That is why I do not think that such a provision would work.

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[Justin Madders]

I wish to raise a point on the exclusion of children’s data. I appreciate that hon. Members have referred to it already, but we are slightly concerned that although children’s data may be covered elsewhere, the guardian does not have any ability to write to bodies in that respect. It is perfectly reasonable for that to be included; indeed, I think it was included in the original Bill as drafted. We see it as a safety net, rather than an added complication.

[Jackie Doyle-Price]

I confirm that the Government support the clause. On the point about children, it is our interpretation that the provisions do not prevent the National Data Guardian from engaging constructively with the Department for Education on adult social care data and its interaction with or effect on children’s data. Clearly, this is something we will monitor, but, bearing in mind that the whole ethos behind the creation of the National Data Guardian is to spread good practice and make representations rather than regulations, the concern that the hon. Gentleman has expressed is important, but we do not think it will get in the way of sensible engagement.

[Chris Bryant]

Will the Minister clarify what she understands from clause 2(5)? It states:

“‘The health service’ means the health service continued under section 1(1) of the National Health Service Act 2006.”

That obviously includes ambulance services, but does it include those provided by St John Ambulance?

[Jackie Doyle-Price]

If I may, I will come back to the hon. Gentleman on that point. I would say that it would not, but I will confirm in due course.

[Mr Bone]

The shadow Minister makes a fair point, which goes to the heart of a problem that I have found in the past—that children are looked after by the Department for Education and not the health service. When I dealt with modern-day slavery, I came across exactly the same problem. What the shadow Minister said should be heard loud and clear by the Department for Education.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

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[Mr Bone]

We have taken parliamentary counsel’s advice—as always, I take advice from people. That is the reason: it is as a consequence of advice given by parliamentary counsel, and I am happy to accept that, unless the hon. Gentleman is thinking of himself in that role.

[Jackie Doyle-Price]

The consequential amendments introduced are typical for setting up such a body. The Government are content with the clause, as drafted.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 4

Extent

Question proposed, That the clause stand part of the Bill.

[Mr Bone]

The clause sets out the Bill’s territorial extent. The Bill extends to England and Wales only. The Committee will note that clause 1 provides for the Data Guardian to publish guidance and give advice, information and assistance, but that applies only to the processing of health and social care data in England. However, in regard to application, the provisions extend to England and Wales but apply only to England. The provisions do not extend or apply to Scotland or Northern Ireland. I hope that is perfectly clear.

[Chris Bryant]

Well no, it is not really. In fact, it is a little bit worse than that. We return to clause 2(5), which says:

“‘The health service’ means the health service continued under section 1(1) of the National Health Service Act 2006”,

but that Act states:

“The Secretary of State must continue the promotion in England of a comprehensive health service”

and so on. I therefore do not understand why the Bill extends to England and Wales. Will the provision will have any relevance whatever in Wales? If not, I do not know why it says that it does.

[Jackie Doyle-Price]

In regard to application, the provisions extend to England and Wales but apply only to England. I have to confess that my knowledge of devolution arrangements is perhaps not as good as it should be, but our view is that the Bill applies only to England. Although the provisions could extend to England and Wales, it would be within the competence of the National Assembly for Wales to appoint a guardian and make such arrangements. That said, the National Data Guardian is an advisory role—it is not a reserved power under devolution arrangements—and as is common in the operation of the health systems in all four nations, I would expect that the advice and guidance given by the National Data Guardian would be heard and, when appropriate, acted on by the health services in the other nations.

[Justin Madders]

My understanding when preparing for the Committee was that it would apply to England only. I think that is what the Minister has confirmed. Certainly in my part of the world there is quite a lot of movement of patients both ways between England and Wales, because we are quite close to the Welsh border. Can the Minister explain what will happen to patient records in that situation?

[Jackie Doyle-Price]

Clearly the Bill extends to England, but the purpose of the National Data Guardian is to give advice on the appropriate sharing of data and best practice. I should expect practitioners to have regard to the advice regardless of where they come from, because, notwithstanding the legal framework in which they operate, all health professionals want to behave in a responsible way. We expect the guidance of the National Data Guardian to be good practice. She has been giving advice without statutory powers to do so, and that advice has been respected; I think that that will continue. It is largely through an accident of the current structuring of the health service that the provisions are as they are. The principles under which the Data Guardian will give advice extend way beyond the geography of England.

[Mr Bone]

The Minister has explained that better than I could possibly do.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clause 5

Commencement

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Chris Bryant]

Christchurch and Rhondda speak as one, in a uniting of the Christophers, something that will not, I think, happen very often. It is a serious point; I understand that such clauses are a frequently used means of tidying up the process of a Bill coming into force. However, it adds cost, because the Government must go through an additional process; and frankly there is no reason why we should not just put in a date and tell the Government to get their act together—because everyone supports the measure.

I hope—I am sure—that the Minister will now say, “We intend to do it as soon as practicable after the Bill has been through both Houses,” and all the rest of it; but it would be better for the date to be in the Bill, because then she would not have to do anything later, and, to use a valleys word, it would be tidy. Let us be tidy.

[Jackie Doyle-Price]

Tempted as I am to engage in debate on the abuse or otherwise of statutory instruments, I prefer not to go down that road. Suffice it to say, we should put provisions into action only once they are tidy, to use the term suggested by the hon. Member for Rhondda. We should be governed by the integrity of the rules we pass rather than by speed, but I can confirm that it is the Government’s desire to implement the Bill, which we fully support, as soon as practicable. Clearly, we already have a National Data Guardian; the Bill would just put it on a statutory footing. It is in all our interests that we do that as soon as possible, so the Government are content with the clause.

[Sir Christopher Chope]

Will the Minister assure us that she will take personal charge of ensuring that the Bill is brought forward quickly? To go back to the example I quoted earlier, I had a meeting with the Chief Secretary to the Treasury and pointed out to her that one of the reasons there was a delay in implementing regulations was that civil servants did not have their heart in it and did not give it sufficient priority. The only way of ensuring that the civil servants in the Minister’s Department deliver on the wishes of the Committee and the House is for her to take charge and deliver. Will she ensure that the Bill is commenced before the end of this calendar year?

[Jackie Doyle-Price]

I completely agree with everything my hon. Friend says. It is Ministers’ responsibility to ensure that the decisions made by Parliament are actioned as promptly and effectively as possible. I know him well enough to be sure that he will hold me to account on exactly that basis if he does not feel the Bill comes forward quickly enough. I would like to see it commenced by the end of the year, and I will work with my officials to ensure that that is the case. If we cannot achieve that, I will give him an explanation.

[Mr Bone]

I am grateful for the contributions by my hon. Friend the Member for Christchurch and the hon. Member for Rhondda. I absolutely agree with their general comments. I looked carefully when drafting the Bill at the issue they raised. I could have included a provision that the Bill would come into effect, say, six months after it became law, but I did not because we already have a Data Guardian, so there will not be any gap, and I know how much the Government support the Bill. That is the reason we did not put in a date, but under other circumstances I absolutely would have insisted on one.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.

Clause 6

Short title

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Jackie Doyle-Price]

The Government are content with the clause.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

[The Chair]

Before I close proceedings, may I thank all Members for taking part in the scrutiny of the Bill, and the Hansard reporters and officials from both the House and the Department who have supported us?

[Mr Bone]

On a point of order, Dame Cheryl. I thank you very much for chairing the Committee and all Members for their participation, which is much appreciated.

[Jackie Doyle-Price]

Further to that point of order, Dame Cheryl. I echo the thanks of my hon. Friend and again thank him for his real industry on what will be an important reform. I also thank colleagues who showed up today for their probing questions, which are always important as we scrutinise legislation.

[The Chair]

I do not think those are points of order for the Chair, but it is good that they have been put on the record.

Bill to be reported, without amendment.