Digital Government (Disclosure of Information) (Amendment) Regulations 2022

Lord Bruce of Bennachie Excerpts

Tuesday 18th October 2022 Grand Committee

[Viscount Younger of Leckie (Con)]

My Lords, the purpose of the regulations is to allow information sharing between specified bodies for the specific purpose of identifying and targeting funded early learning and childcare for families with eligible two year-olds in Scotland. They seek to amend the Digital Government (Disclosure of Information) Regulations 2018. The public service delivery power supports public bodies to improve or target the important public services that they provide. The power is designed to give public bodies the information needed to provide early intervention and vital support for those who need it or, where possible, to prevent the problems that reduce people’s life chances.

The regulations seek to establish a new objective for data sharing under the public service delivery power in the Digital Economy Act 2017, for identifying and targeting funded early learning and childcare for families with eligible two year-olds in Scotland. The Scottish Government identified that there was low uptake for eligible two year-olds in Scotland and seek similar data-sharing arrangements as those already in place with English and Welsh local councils. Although Section 34 of the Scotland Act 2016 allows sharing of information between the Secretary of State and the Scottish Ministers, this has to be for the purpose of their respective social security functions. Regulations can expand on what those functions are but early learning and childcare does not relate to social security. Furthermore, HMRC has neither Secretary of State nor social security functions. For this reason, the Scotland Act 2016 is not a suitable vehicle to implement these powers and we are using the data-sharing powers in Part 5 of the Digital Economy Act 2017.

The objective created through this regulation would enable data sharing from DWP and HMRC to the Scottish Government and allow for this to be forwarded to Scottish local councils. It would allow Scottish local councils access to the necessary information held by DWP and HMRC to enable them to identify households most in need, and then directly contact these families to inform them of the support that they are likely to be eligible for. To exercise the public service delivery power, the Government must set specific objectives for data sharing via regulations. Those objectives must meet specific criteria defined in the primary legislation. For the avoidance of doubt, these regulations do not create a new Henry VIII power. Instead, we are adding a new objective to the current tightly controlled Digital Economy Act powers, which make it possible to add or remove specified objectives and persons.

The current power to make amendments of this nature was subject to robust scrutiny by the Delegated Powers and Regulatory Reform Committee and, as a result, the power to add this early learning and childcare objective must be scrutinised by Parliament via affirmative regulations. The territorial extent of this regulation is Great Britain and the territorial application is England and Scotland.

This regulation must be taken through the UK Parliament by the UK Government because information sharing under the proposed objective would involve disclosure and processing of data held by UK departments: HMRC and DWP. The Scottish Parliament can approve proposals only for new objectives which solely involve specified Scottish bodies permitted to make use of the public service delivery power. Legal gateways already exist in England and Wales to enable data sharing to support delivery of early learning and childcare. This draft regulation will bring Scotland parity of service provision that families in England and Wales already enjoy.

Data sharing is a vital and effective way of identifying individuals and households experiencing problems that reduce their life chances. Access to high-quality early learning and childcare is a key factor in determining life chances.

There are safeguards in place to protect personal data from misuse. The objective has already been subject to scrutiny by the Public Service Delivery Review Board, which oversees the use of the public service delivery power as set out in the underpinning code of practice. The review board comprises specialists working in the UK Government and in the devolved Administrations, as well as public representative bodies and civil society groups. Officials from the Information Commissioner’s Office also attend as observers. The board is tasked with considering proposals for new objectives for data sharing under the public service delivery power and making recommendations to Ministers. The board’s recommendation to take forward these draft regulations was approved by the relevant Minister as it meets the criteria set out in Section 35 for objectives under the public service delivery power: enabling the sharing of personal information to support “the improvement or targeting” of public services to individuals or households to improve their well-being.

Furthermore, the objective has been subject to public consultation. Respondents to the statutory public consultation have been decidedly positive, with up to 94% agreeing that the proposed data share would improve and target a service to eligible households, and 88% agreeing that the data sharing would improve well-being for these households. Some 86% also agreed that the data sharing would deliver tangible benefits to households, including early stage support to promote education, health and social equalities. Importantly, the majority of respondents, 87%, agreed that the personal data items to be shared, specifically including the customer—parent or carer—name, address and national insurance number for unique identification, as well as a child or children indicator to confirm the existence of a child or children, are appropriate for early learning and childcare service delivery.

Parliamentarians have already approved the code of practice and the previous Digital Government (Disclosure of Information) Regulations 2018, which I referred to and which established existing public service delivery objectives. Sharing personal data will, understandably, tend to attract attention and scrutiny. However, the power—as with the other data-sharing powers in Part 5 of the Digital Economy Act 2017—must be exercised in compliance with the data protection legislation and UK GDPR.

The data being shared is strictly limited to the names and addresses of parents and confirming whether they are eligible for qualifying benefits. This does not involve the sharing of data held regarding the child, nor does it involve supplying further information than is necessary or confirming which benefits the parents do or do not claim. Scottish local councils also have arrangements in place to identify children in care or with guardians who may be eligible.

There is an underpinning code of practice, which sets out how the power must be operated. This includes setting out how any data shared under this power must be processed lawfully, securely and proportionately, in line with data protection legislation. Anyone making use of any objective must have regard to the code. The code of practice also requires that information-sharing agreements are included in a public register of information-sharing activity under the powers.

I hope colleagues in this Committee will join me in supporting the regulations. I apologise for a bit of technical information but, in the meantime, I beg to move.

[Lord Bruce of Bennachie (LD)]

My Lords, I thank the Minister for that introduction and explanation. There is very wide support for the extension of childcare. Indeed, I have always believed that structured play and social engagement for young children is beneficial. Very early on in my political career, I campaigned successfully for increased funding for playgroups and for the extension of nursery-year schools in my area—I might say against campaigns from other political parties that were less supportive.

The basic understanding of the consultation is that it is overwhelmingly supported because of the objective, but there are perhaps one or two wrinkles worth pointing out. First, in that context, all children and all families are different, so there should not be a presumption that every child must or should go to childcare or nursery education between the ages of two and five. It should be a choice for the family and the parents, and sometimes there is pressure that is not appreciated.

Looking at some of the responses to the consultation, they were, I accept, overwhelmingly supportive across the piece—as the Minister pointed out—but large statistics still cover small minorities of concern. Taking one section as an example, 55% of respondents said that they saw no risk of loss of benefits; that means a pretty substantial minority were concerned that there might be. Does the Minister have any information on how that could come about and what the risks were? In the same category, 64% of respondents saw no risk of a loss of access to services, but that leaves a significant minority concerned that there might be. While in no way detracting from the very targeted purpose and desirability of this overall, and the general support for it, there needs to be recognition that there will be people for whom this raises some concerns.

Coming on to the specifics of the actual data-sharing, the Minister was careful to acknowledge that, by definition, data collected for one purpose being used for another is very much of concern. When people give information, they need to know what it is for and not to find it has been used for something they did not expect. In that context, it seems that the relationship between the Government, local authorities and all the relevant agencies needs to be sensitively handled. Think of a family who are struggling: if somebody rocks up at their door saying, “We have data to suggest this”, it could create a sense of threat or concern because we are, by definition, talking about vulnerable communities. What provision is there for ensuring that there is co-ordination and the best networking to get the most sensitive application of this and the desired result? The desired result should surely be that every child whose parents wish it and who qualifies should be found and given the opportunity to benefit from the care and support that is on offer and paid for.

Finally, it is interesting that devolution lives within this instrument, and I have no problem with that. But there was a point in a debate last week, which I unfortunately could not attend because I was speaking in the Chamber, where the Scottish Government were again asking the UK Government for assistance in collecting data. Again, I have no problem with it but it raises the question of what the capacity of the Scottish Government is or should be, or, indeed, why on earth they need a separate capacity if there is a perfectly adequate UK-wide system that they can access, subject to the appropriate safeguards.

The people of Scotland have voted more than once for devolution. They have never voted for independence, but you would hardly know that when you talk to Scottish Government Ministers, who have a great reluctance to admit publicly that devolution has any merit—never mind that it applies the will of the Scottish people, while they frustrate that will by promoting something the people do not want. In the meantime, this co-operation across the UK in data-sharing for legitimate purposes seems efficient and sensible and, in that context, I am happy to support the instrument from these Benches.

[Lord Jones (Lab)]

My Lords, I thank the Minister for his patient and courteous exposition. I rise essentially as a matter of principle, because these regulations rattle through so often when they are so important. Briefly, in the helpful explanatory pages I note that he has consulted Welsh and Scottish Ministers. The Explanatory Notes have this important Scottish example, which gives the regulations a very human form. My question to him is: how were the consultations carried out? Were they digital or personal? He might be able to give some indication of whether they were effective consultations. Might he also instance an example of an action or objective concerning Wales or England? The Scottish one was fine, but are there others that come to his mind?

--- Later in debate ---

[Viscount Younger of Leckie (Con)]

My Lords, I start by thanking all noble Lords who have spoken in this short debate. I am pleased that there is broad support for the regulations, so I will start with that and endeavour to answer as many questions as I can.

I will go straight in by speaking a little more about the consultation. A letter might need to be written to give further details about this, particularly the numbers of people involved, but I will have a bash. As I said, the responses received were broadly positive. No significant issues were raised during the consultation and, as a result, no changes were made to the proposed objective or the draft regulations. That is a start to understanding.

The UK Government carried out the consultation together with the Scottish Government, who engaged with specialist learning and childcare organisations, as well as Scottish councils. That takes us a little further. Further numbers than those I have given on responses that were negative rather than positive is probably a matter for a letter, so that I can get the technical details to noble Lords. It is understandable that those questions were asked by the noble Lord, Lord Bruce of Bennachie, and the noble Baroness, Lady Chapman. I have statistics in front of me that I have already read out, so I do not think they are particularly helpful.

Moving on, a question was asked about to what extent the devolved Administrations are engaged with this in general. As mentioned, the UK Government are taking this objective forward at the request of the Scottish Government. The territorial extent of the regulations is UK-wide and applies in England and Scotland only, as I mentioned. Under Section 44(4) of the DEA, the UK Government are required to consult the devolved Administrations—plural—on our proposed objectives. A formal consultation was carried out with the devolved Administrations at the time of the public consultation. Furthermore, ongoing liaison has taken place at official level to ensure that the views of Welsh and Northern Irish colleagues have been fully accounted for. I help that is helpful, particularly in answering the question from the noble Lord, Lord Jones.

A very fair question on safeguards was raised by the noble Lord, Lord Bruce of Bennachie. It focused on misuse, which is a fair point. I alluded to this in my opening speech, but I will try to go a little further. The data-sharing provisions in Part 5 of the DEA include a number of robust safeguards, the most important being compatibility and strict adherence to the Data Protection Act 2018 and UK GDPR. The DEA goes further and includes a number of additional safe- guards, including sanctions for unlawful disclosure. That includes custodial sentences. Furthermore, public service delivery powers are permissive, which means that public authorities listed in Schedule 4 can choose whether or not to do so. This safeguard prevents inappropriate data sharing.

Finally, as the new public service delivery objectives are created by affirmative secondary regulations, new objectives are defined for use before data sharing can commence, following public consultation and parliamentary scrutiny.

The noble Lord, Lord Bruce, also asked what provision there was to ensure co-ordination of the desired results. I think this is more about dissemination. The Scottish Government are keen to ensure that those families who wish to take up the early childcare offer can do so. They plan to co-ordinate the update and use of the objectives, which will be reviewed after one year. It is quite important to mention that.

I listened carefully to the short speech from my noble friend Lord Holmes. If I have got it right, his focus was really on the openness and transparency of data. He also spoke of the importance of the opposite, which I have already covered. We are committed to being open and transparent by making information about data shared under the DEA easily available for all to find out and understand. This helps citizens, the Government and the Information Commissioner’s Office to understand what data sharing is taking place.

Public authorities using the public service delivery, debt, fraud and civil registration powers must add data shares to a public register. The Cabinet Office is responsible for this and for maintaining the register, and the Public Service Delivery Review Board oversees strategic consistency. All accredited research projects and researchers are published on the UK Statistics Authority’s website, along with Research Accreditation Panel meeting minutes, to uphold the transparency requirements set out in the Research Code of Practice and Accreditation Criteria.

Finally, for statistics purposes, a list of data sources is available on the ONS website to maintain transparency of the data sources that the ONS holds to support its statutory functions, including data sources obtained under the statistics powers. That was quite a long answer but I hope it helps my noble friend.

I shall try to answer two or three more questions, if I may. I was asked what more is happening to enable the right level of data sharing across the UK. I think it may also have come from my noble friend—I see he is nodding. The Cabinet Office is working with the devolved Administrations to ensure that more data sharing takes place across the UK. It is rather outside the scope of this debate, but I will consider the replies I have given and may well add to a letter that may be coming the noble Lord’s way. I shall copy in all noble Lords who have contributed to this debate.

One final response that has just come to me may be helpful to the noble Lord, Lord Bruce. It is about the responses. I can confirm that we received 69 responses. That is the only response I have. As I said, I think we should look at the full consultation details and I will furnish the noble Lord with more information, should we have it.

[Lord Bruce of Bennachie (LD)]

I am grateful to the Minister. I was trying to see whether I could get the detail. There is an appendix list of who has submitted, and some of them have published their submissions. My council, Aberdeenshire Council, has provided a submission, but I could not find what it was, so if the Minister is able to point us to where submissions can be sourced—if they are published or publishable—it would be helpful.

[Viscount Younger of Leckie (Con)]

I will be in touch with the noble Lord outside the Committee to do so.

I finish by saying that the regulations will benefit an estimated 14,000 of Scotland’s most disadvantaged children by giving them access to a high-quality service that would cost families £5,000 a year per child if they were to purchase it themselves. I hope that, having heard the benefits spelled out, noble Lords will join me in formally supporting these draft regulations. I commend them to the Committee.

Motion agreed.