Data Protection Bill [Lords]

Sarah Wollaston Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 9th May 2018 Commons Chamber

[Madam Deputy Speaker (Mrs Eleanor Laing)]

Order. We have only 40 minutes left to debate this group and around 10 Members wish to speak. If everybody speaks for four to five minutes, everybody will get in; if not, some people will not get to speak at all.

[Dr Sarah Wollaston (Totnes) (Con)]

I rise to speak to new clause 12, which was tabled in my name, that of my colleague, the hon. Member for Stockton South (Dr Williams), and those of other members of the Health and Social Care Committee and Members from all parties.

I wish to speak about the importance of medical confidentiality, because it lies at the heart of the trust between clinicians and their patients, and we mess with that at our peril. If people do not have that trust, they are less likely to come forward and seek the care that they need. There were many unintended consequences as a result of the decision enshrined in a memorandum of understanding between the Home Office, the Department of Health and NHS Digital, which allowed the sharing of addresses at a much lower crime threshold than serious crime. That was permitted under the terms of the Health and Social Care Act 2012, but patients were always protected, in effect, because the terms of the NHS constitution, the guidance from the General Medical Council and a raft of guidance from across the NHS and voluntary agencies protected the sharing of data in practice.

This shift was therefore particularly worrying. There were many unintended consequences for the individuals concerned. The Health and Social Care Committee was also deeply concerned about the wider implications that this might represent a shift to data sharing much more widely across Government Departments. There was a risk, for example, that the Department for Work and Pensions might take an interest in patients’ addresses to see whether people were co-habiting for the purpose of investigating benefit fraud. There was a really serious risk of that.

I am afraid that the letter that we received from the Department of Health and Social Care and the Home Office declining to withdraw from the memorandum of understanding made the risk quite explicit. I would just like to quote from the letter, because it is very important. I also seek further clarification from the Minister on this. The letter states that

“it is also important to consider the expectations of anybody using the NHS—a state provided national resource. We do not consider that a person using the NHS can have a reasonable expectation when using this taxpayer-funded service that their non-medical data, which lies at the lower end of the privacy spectrum, will not be shared securely between other officers within government in the exercise of their lawful powers in cases such as these.”

I profoundly object to that statement. There was no such contract in the founding principles of the NHS. As I have said, it is vital that we preserve that fundamental principle of confidentiality, including for address data. I was delighted to hear the Minister’s words at the Dispatch Box, but can she just confirm for me absolutely that that statement has now been superseded?

[Margot James]

Yes, I can confirm absolutely that the statement that my hon. Friend quoted from the letter of 23 February has been superseded by today’s announcements.

--- Later in debate ---

[Dr Wollaston]

I thank the Minister for that reassurance. There is much more that I could say, but I know that there are very many other colleagues who wish to speak. With that reassurance, I am happy not to press my amendment to a vote.

I would like to make one further comment on protecting patients. At a time when confidence in data sharing is so important, especially around issues such as research, we all rely on the role of NHS Digital. Set up under the Health and Social Care Act 2012 as a non-departmental public body at arm’s length from Government, NHS Digital has the specific duty robustly to stand up for the interests of patients and for the principles of confidentiality. As a Committee, we were deeply disappointed that, despite the clear concern set out from a range of bodies, including Public Health England, all the medical royal colleges, very many voluntary agencies, the National Data Guardian and others, the organisation seemed to have just the dimmest grasp of the principles of underpinning confidentiality. I wish to put it on the record that we expect the leadership of NHS Digital to take its responsibilities seriously, to understand the ethical underpinnings and to stand up for patients. With that, I will close my remarks. I thank the Minister for the time that she has taken to listen to our concerns and for her response.

[Yvette Cooper]

I wish to speak briefly to amendment 15 and to say to those on the Front Bench that this is their opportunity to actually do something as Ministers. I urge them to make a late change and not just to drift on with legislation that was drawn up before the Windrush scandal. They can go and talk to the Secretary of State—have a discussion with him—and decide now to accept amendment 15. I really urge Ministers to do that, because what the Bill is doing is immensely serious. The Bill is incredibly widely drawn. This exemption allows the Home Office to refuse subject access requests in immigration cases and to put in place data sharing without proper accountability in any case where it meets the maintenance of effective immigration control or the investigation or detection of activities that would undermine the maintenance of effective control, and yet, repeatedly, we have had no explanation from Ministers as to what effective immigration control means. That is because, in truth, it is immensely broad. It could mean meeting the net migration target, sustaining the hostile environment and enabling a deportation that the Home Office thinks is justified, even if in practice it has made a mistake. It could mean decisions being taken by immigration removal centres, G4S, Serco or any of the many private companies contracted by the Home Office to deliver its so-called effective immigration control.

The Home Office has made an objective of reducing the number of appeals and removing the right to appeal in immigration cases. If a subject access request makes an appeal more likely, why does preventing that SAR in order to prevent a potential appeal not count as immigration control under the Home Office’s definition? That would be unjustified and wrong, but it is made possible by the Bill. If the Government do not want that to be the case, they should change their proposed legislation and accept amendment 15.

Ministers do not have to go ahead with this right now. An immigration Bill is going to come down the track at some future point and it will give them and the Home Secretary the opportunity to reflect on the Windrush scandal. The Immigration Minister told the Home Affairs Committee yesterday that the culture of the Home Office, including that of casework and decision making, needs to change. The Home Secretary and the former Home Secretary recognise that substantial changes need to be made. We are told that huge lessons have been learned and we have been promised inquiries that will report back and have independent oversight. None of them have yet taken place, but the Windrush scandal has had shocking and devastating consequences for individual lives, as so many Members on both sides of the House acknowledge. I therefore ask Ministers to not make future Windrush scandals more likely and to not deny people the information they need about their case in order to prove their circumstances and ensure that a Home Office mistake or error can be overturned.

Michael Braithwaite came here from Barbados in 1961. He is a special needs teacher who has lived here for more than 50 years, and yet he was sacked from his job because the Home Office got it wrong. His lawyer’s application for a subject access request formed part of the process for clearing up and sorting out his case, but the Bill will make it much more difficult to make such a request. Subject access requests are already often resisted by the Home Office. Whether inadvertently or intentionally, the Home Office has a bad record in complying swiftly and fully with subject access requests, so why on earth does this Bill make that more likely and further allow the Home Office to simply not give people the information they need to make sure that justice is done?

There are huge concerns about the way in which targets have operated. The Home Secretary and other Ministers will have to look into that in depth. In the meantime, however, they should not allow a situation to develop whereby the operation of those targets could end up with subject access requests being denied because meeting those targets is seen as part of effective immigration control.

The Home Office does get things wrong. There are huge strengths and skills within the Home Office. There are people who work immensely hard to try to get things right, but we know that a Department that size gets things wrong and we have seen the evidence, to terrible effect, in the Windrush cases. There have been 60 cases of unlawful detention in the past few years, even before the Windrush cases. Nearly half of the cases that go to appeal go against the Home Office because it got those decisions wrong. Sampling by the immigration inspectorate found that 10% of the data that the Home Office gave to banks, telling them to close people’s accounts because they were here illegally, was in fact wrong and that those people should not have had their bank accounts closed. Given that level of errors and mistakes, why on earth would we prevent the kind of transparency that subject access requests deliver? Some 39,000 people were wrongly sent texts telling them that they were here unlawfully. The Home Office makes mistakes, and we need transparency and subject access requests to be able to challenge those mistakes.