Higher Education and Research Act 2017 (Cooperation and Information Sharing) Regulations 2018

Lord Lucas Excerpts

Tuesday 24th July 2018 Lords Chamber

[Lord Lucas (Con)]

My Lords, I am grateful to the noble Lord, Lord Watson of Invergowrie, for bringing this Motion forward. I completely share his disquiet at the way in which these regulations have been framed. I am grateful to the Minister—his department has been in helpful correspondence with me since—but the fundamental problem is in the drafting. The idea that data should be given to a commercial company, one so much at the centre of education as Pearson, for purposes connected to its memorandum and articles—which are written, as you would expect, to allow Pearson to do anything; there are not even any restrictions on illegality, as is conventional—is a fundamental defect in the drafting of the regulations.

There are some good precedents that could have been followed. The one I like, because I know it best, is Schedule 1 to the Freedom of Information Act. Typical expressions might be:

“The Competition and Markets Authority, in respect of information held otherwise than as a tribunal”,


or:

“Any person providing local pharmaceutical services … in respect of information relating to the provision of those services”.


My understanding from the Department for Education is that, actually, Pearson’s requirement to be given information is very limited. It is only in respect of a minor part of Pearson’s activities and then not regularly, but only if a problem occurs. That could easily have been set out in these regulations, so that it is clear in what circumstances Pearson could be given information, but it has been stated in the broadest possible terms and quite rightly raised a lot of alarm in people who care about the privacy of information and the privileging of a particular commercial enterprise.

The fault at the root of this is bad drafting and I very much hope that the Minister says that this will not happen again, that we will not use this wide phraseology again, and that the Government recognise that it is entirely inappropriate that they have used it. Given that they have, the Government are relying on data-sharing agreements to protect the data against misuse. Those data-sharing agreements are, naturally, not entirely public documents because, to some extent, they are commercial documents and commercial in confidence. Since they are so central in this case to the protection of public and individuals’ information, I hope that my noble friend confirms that all these data-sharing agreements will be made public, redacted if necessary to remove commercial things but so that we can see exactly how explicit and proportionate they are; that the information that is being released is clearly and fully described, so that we can understand that, in practice, the way the department is behaving is something we can live with; and that the department publishes information on what data releases have been going on, so that we can pick up that we need to take an interest in the data-sharing agreements.

This is a very unsatisfactory situation that we have got ourselves into. From my conversations with the department, I think that we will be able to put on an adequate sticking plaster in this case—but I really hope that it is something that we do not do again.

--- Later in debate ---

[Lord Lucas]

My Lords, I do not believe my noble friend has answered either of the questions I posed. If the Government are content with drawing a wide power in regulations for a narrow use of personal data, we as a House should react to that by greatly strengthening our scrutiny of such secondary legislation. This got through our scrutiny without being picked up. If this is to be regular practice—if the Government do not say, “Sorry, we will not do it again”—then we must take it seriously. It is entirely inappropriate that we should draw such wide powers for such a narrow purpose when it concerns a sensitive matter.

Secondly, I heard my noble friend say that data-sharing agreements would not be published. I would be grateful if he could write to me to say how in that case we, as Parliament, can exercise proper scrutiny of the way in which data sharing is being carried out; and, secondly, how that attitude fits with the Freedom of Information Act, which I understand requires the reduction of the commercially sensitive elements of a data-sharing agreement. Surely a great deal of what is in there—particularly the detail of what kind of information is being shared and what sort of terms and conditions have been placed on it—cannot be commercially confidential in any real sense.

[Viscount Younger of Leckie]

I take note of my noble friend’s broader points about the scrutiny of secondary legislation—I am simply taking note of that—and I will write to him on his points about data-sharing agreements and their publication. I hope that that will satisfy him.