Skip to main content

Data Protection (Processing of Sensitive Personal Data) Order 2012

Volume 739: debated on Wednesday 18 July 2012

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Data Protection (Processing of Sensitive Personal Data) Order 2012.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments, 3rd and 4th Reports from the Secondary Legislation Scrutiny Committees

My Lords, the order before us today specifies circumstances in which sensitive personal data may be processed in accordance with the Data Protection Act 1998. This is a technical order but the work it relates to is of the utmost importance. The circumstances set out in the order relate to arrangements put in place for disclosure of information about the Hillsborough disaster, and in particular the work of the Hillsborough Independent Panel. This order removes any doubt that sensitive personal data relating to the Hillsborough disaster can be disclosed to the panel and publicly, where disclosure is necessary to give effect to the disclosure protocol which guides the panel’s work.

Before setting out further details about this order it may be helpful for noble Lords if I set out some of the background to the work of the Hillsborough panel. As noble Lords will be aware, 96 people were killed and 766 other people injured as a result of this tragedy, which remains the deadliest stadium disaster in British history. Since 1989, there have been a number of investigations and inquiries into the tragedy, but a sense has remained on Merseyside and beyond that the full story of Hillsborough has not been told. Because of the enormous strength of public feeling, the previous Government established the Hillsborough Independent Panel, with a remit to ensure maximum possible disclosure of records relating to the disaster. I want to reiterate that the current Government fully support the panel and its work. Indeed, this order has very much been made in that spirit.

One of the roles of the panel, chaired by the right reverend Prelate the Bishop of Liverpool, is to oversee and co-ordinate the disclosure of records from public agencies including the police, and from government, including Cabinet documents. Some of this material consists of “sensitive personal data”, as defined by the Data Protection Act 1998. It is the sharing during the panel process and possible subsequent public disclosure of this material which concerns us today.

In the context of the Hillsborough Independent Panel’s disclosure of records, much sensitive personal data, such as medical records of survivors, will quite properly not be placed in the public domain. But the publication of other records would clearly add significantly to the public’s understanding of the events surrounding Hillsborough. Although I am, quite rightly, not aware of the details of these records, I understand that they include, for example, papers relating to various legal processes which arose as a consequence of the disaster. For these records, organisations within the scope of the panel’s work agreed that publication is in the public interest but want to be absolutely clear that such disclosure is capable of meeting the requirements of the Data Protection Act 1998.

The Data Protection Act 1998 gives individuals several rights in relation to their personal and sensitive personal data. It also places obligations on all organisations to ensure that, where personal data is processed, the impact of processing on the individual is appropriately considered. The Act also allows for the making of an order to create conditions that will enable disclosure where those existing conditions in the Act are deemed insufficient.

The order before us today specifies the circumstances where the processing of sensitive personal data may take place where that processing is disclosure of information relating to the Hillsborough disaster and that disclosure is necessary to give effect to the disclosure protocol which governs the work of the Hillsborough panel. The order and the protocol work in tandem and will, in effect, act as a two-stage process to determine disclosure. In considering whether processing sensitive personal data is necessary to give effect to the panel’s disclosure protocol, an organisation will have to look at the facts of each case and balance the benefits of disclosure against any impact that disclosure might have on an individual. The order helpfully ensures that this balance can be assessed with particular reference to the overall aims of the Hillsborough panel.

The order will not guarantee that any and all disclosures of sensitive personal data contained in documents relating to the Hillsborough disaster will automatically be lawful. Because of the way the Data Protection Act 1998 works, it will be for the organisations concerned to decide, once the order is made, whether the new conditions it sets out are met, so an organisation or the panel will need to look at whether the proposed disclosure is truly necessary to give effect to the panel’s arrangements. If it is met, the relevant organisation would also need to satisfy itself that the disclosure will comply with the rest of the Act and its principles, and any other relevant law.

It is clearly not the intention of the Government in making this order, or the Hillsborough Independent Panel in requesting it, that sensitive material is disclosed inappropriately or in a way that might cause distress to the families of the bereaved and those injured in this disaster. Therefore, I would like to assure noble Lords, in response to a concern raised in another place, that where sensitive personal information which is not otherwise publicly disclosed as part of the panel process is placed into the National Archives or local archives, all the safeguards which protect personal data will apply to this material. This includes the requirements of the Data Protection Act itself. That means, in particular, that it will not be disclosed to the general public, or at least until it can be guaranteed that its release would not cause distress or harm.

The Ministry of Justice and the Home Office have worked with the Information Commissioner’s Office and officials from the Hillsborough panel to seek a resolution to the data protection issues which have been raised. The order under discussion today is the result of that work. All parties are content that the order, if agreed by Parliament, provides a suitable legal channel for disclosure and is a proportionate response to the issue.

I am sure that I speak for all sides of the Committee when I say that the promise made to those affected by the Hillsborough disaster must be honoured, and that this Government have made a clear statement that we are committed to facilitating the fullest possible disclosure. I commend this draft order to the Committee and I beg to move.

My Lords, as the Minister reminded us, it is now close to a quarter of a century since this terrible event occurred. The pain has yet to be assuaged and many questions have yet to be answered. I commend the Government on proceeding to facilitate the work of the independent panel.

I have one or two questions, beginning with the point made by the Secondary Legislation Scrutiny Committee about the title of the order. In paragraph 26 of its report, the committee says that it is disappointed that the title of the legislation does not make the Hillsborough connection clear, and that those with an interest in the investigation of the disaster should be able to find related information easily. It makes the perhaps general point that the titles of instruments should be clear and transparent. I wonder whether it is possible, even at this late stage, for the title to be changed so that anyone who wishes to refer to the instrument in due course can track it down with ease. Maybe there will not be many but there may well be some who wish to do that. In replying, perhaps the Minister will also indicate whether he and his ministerial colleagues will look at the more general point made by the committee about the titling of such documents.

One or two questions arise on the detail of the order, based on the Explanatory Notes, which are, as ever, very helpful. In particular, they say that the panel’s secretariat will discuss the implications of the order with the disclosing organisations and the Hillsborough families. I am not sure about the timing of that; perhaps the Minister will enlighten us. Have those discussions begun in advance of the order? In other words, has the draft order been discussed or is the intention to discuss it only when it is finally confirmed? I hope that discussions have already taken place. It would seem a little odd if they have not but I assume that they have. It would be very helpful to know about that.

A couple of other questions arise from the detail, particularly on the panel’s terms of reference and how the protocol that it seeks to adopt, and which the order facilitates, will work in practice. The Minister referred to exceptions to public disclosure, particularly information that indicates the views of Ministers. In the normal course of events that would be sensible. However, will Ministers’ views be particularly relevant? After all, they would be discussing any events after they happened, so their views would not materially contribute to the work of the panel in seeking finally to ascertain the causes of the tragedy.

As the noble Lord said, it is also indicated that individuals’ identities may well be protected. The notes indicate that certain categories of individual will be redacted from the information. I wonder about this in respect of two particular categories: police officers who were constables or other ranks up to and including sergeant at the time the document was produced, and the fourth category listed—although I will confine myself to two—of junior public employees who were not in a position to determine their agency’s response. In relation to the first category, I wonder what the rationale for that restriction might be. It may be that people at the rank of sergeant were not in a position to influence, one way or another, the outcome on the day. On the other hand, it is possible, I suppose, that they might have been and the difficulty of redacting means that perhaps people who are definitely not in a position to do anything might find themselves potentially under some kind of cloud or question as to what their role had been. This is a difficult area but can the Minister give an indication of the rationale of that and whether he is confident that in redacting all names of those ranks and below, and of the other category to which I referred, justice is being done to those who are in no way culpable on any view.

We welcome the progress that is being made. We welcome the way the working of the panel will now be facilitated but I would be grateful if the noble Lord could respond to the questions I have raised.

My Lords, I am very grateful to the noble Lord, Lord Beecham, for that intervention. The Hillsborough disaster is one of those events where you know where you were on the day. I was in Rochdale and I can remember hearing the tragedy unfurl on the radio. As an avid soccer fan I thought then, “Never again”. To be fair, much has changed in the way that football treats its fans in terms of ground safety so perhaps we can say never again. Also, successive Governments have realised that there are still open wounds in Liverpool and there are questions that need to be answered. Again, successive Governments have responded to that fact by the determination to carry through this very thorough inquiry under the very distinguished and trusted leadership of the Bishop of Liverpool.

On the question of the title, it is probably true to say that it would have been better to have had a title that stated the intention exactly. However, there were contrasting opinions on whether the panel and the bodies giving evidence to the panel were protected under existing legislation. In a way, this order is a little bit of belt and braces in terms of giving assurance so that the panel could do its work. Could it have been better described in the Data Protection (Processing of Sensitive Personal Data) Order 2012? In hindsight, perhaps it could and it could have made a specific reference to the specific case that it was there to address. However, we considered the views of the committee carefully and concluded that to deal effectively with its concerns might have brought potentially damaging delay into bringing this order forward. We have taken such action as possible with local media and others to make it clear that people will be able to locate this order. I would ask noble Lords to bear in mind that to have accepted the committee’s recommendations would have meant that the order would have had to have been withdrawn, re-laid and to have gone through the scrutiny process again. That might have pushed the House’s approval for the draft order—if it is forthcoming—back past the Summer Recess and would have had a knock-on effect on the expected delivery time of the panel’s findings.

The fact that there is no specific reference to Hillsborough in the title is not, I think, a catastrophic error. We have taken measures to try and guide people who wonder what it is and what it is for. I hope this explanation clarifies that.

I understand that and am grateful to the noble Lord. I am just wondering whether the pathway will be signalled on the website and so on, so that people looking at the Hillsborough website will be directed to it rather than having to comb down through long lists of statutory instruments. I have not looked at the website myself and so do not know how it is set up at the moment, but I assume there will be a website for the independent panel. If it is clear from there what this document is about and where it can be found, that would be sufficient. I assume that is what is happening but I would be grateful if the Minister could confirm that.

I think I can confirm that that is what is happening and that anybody who goes to the Hillsborough website will be directed to it. The draft order has been discussed with the families at all stages and those discussions will continue. I note the point that the noble Lord made about Ministers but the Government have taken the decision that all material, including Cabinet minutes, will be published. I can understand that, as it is not just an inquiry into what happened in or around the ground—people will want to know about a range of issues. Over these 25 years, I have taken an interest in the follow-up to Hillsborough and, as such, one of the statements that I found most reassuring was the one by my right honourable friend the Home Secretary, when she made clear that the Government’s attitude would be full disclosure, within the limits that I referred to about due care and not putting the families through the trauma again by careless or unneeded disclosure.

One has to make a judgment about the protection of junior officers and lower-rank officials. It is a judgment call and if the panel brought forward events or findings that meant that a particular individual warranted being named for some action or lack of action, that would be a matter the panel would have to take into account. I also think that, if you are publishing, it is fair in terms of responsibility to have a certain redaction policy. We have made the judgment that it is, in fairness, right not to publish all the names concerned. I think those were the points that the noble Lord raised and I ask the Committee to approve the Motion.

Motion agreed.