Investigatory Powers Bill (Twelfth sitting)

Lucy Frazer Excerpts

Committee Debate: 12th sitting: House of Commons
Tuesday 26th April 2016 Public Bill Committees

My broad point is that the careful distinction in the Data Protection Act between basic personal data and sensitive data needs to be reflected in the Bill in some shape or form, either in clause 174 or later, in clause 177, to which I have tabled amendments dealing with medical records and mental health records. Those amendments are pretty self-evident. The first set seeks to exclude such records from the provisions of bulk personal datasets altogether, and the second would set a higher threshold for accessing health and mental health records.

[Lucy Frazer (South East Cambridgeshire) (Con)]

I am conscious of people’s sensitivity about their personal data, particularly sensitive data, but does the hon. and learned Gentleman think that we ought to consider this issue in the context of the legislation? These data are there to be used for a specific investigatory purpose, and only that purpose. They are not meant to be used for any other purpose. Indeed, if they are used and disclosed, there are very many provisions about unlawful disclosure and the serious criminal penalties for that, which we examined at the beginning. Is that not the safeguard for people that we need to distinguish the use and abuse of material that is collected?

[Keir Starmer]

I am grateful for that intervention. There is a particular sensitivity about health and mental health records. The very fact of their being retained, examined and filtered—because that is what will happen—is of huge concern to many people. That is why the amendments suggest that they be either excluded or subject to a higher test to prove that it is really necessary. Although it was not formal evidence, the Committee had a briefing session with the security and intelligence services where the question arose whether they do in fact access health records. In those exchanges, the answer was, “No we don’t, at the moment.” When I asked why, in those circumstances, it was necessary to have this power, the answer was: “Because we can’t rule out that at some future date it might be necessary to get these records, in circumstances that we cannot foresee at the moment—so we would not want to restrict the ability to get them.”

That was an honest answer about the way that these records are dealt with. In formal evidence, the answer was that the internal guidance does subject accessing mental health records to a higher threshold. In a sense, the agencies have thought this through for themselves. They have recognised the extra sensitivity of such records and have their own internal processes to make sure that they are applying a higher test. That is a good approach.

--- Later in debate ---

We have gone some way down the road of satisfying critics who felt that the original proposals were not sufficient in that respect, but we are happy to look again at what steps could be taken to be confident about what we have done across the Bill.

[Lucy Frazer]

Does my right hon. Friend think that sometimes putting tests in very specific terms in primary legislation gives a certain rigidity, whereas greater flexibility would be possible if they were in a code of practice? As we heard—as the hon. and learned Member for Holborn and St Pancras said—the test is already being carried out in practice. Does my right hon. Friend agree that to create additional rigidity by putting the test in primary legislation might hamper the security services in due course?

[Mr Hayes]

With a certain power of prophecy, I made it known at the beginning of our considerations that it was likely that there would be a continuing debate that would have at its heart, considerations about what should be on the face of the Bill and what should be in supporting documentation. I did so perhaps not so much as a prophet as an experienced Member of this House, because I have never served, either as a shadow Minister or as a Minister, on any Bill Committee where that has not been a matter of debate. How far one goes in putting specific matters on the face of legislation is always a matter of fine judgment. Hon. Members know the argument very well.