Serious Crime Bill [HL]

moved Amendment No. 101: 101: Schedule 6, page 64, line 26, at end insert— ““( ) A data matching exercise may not be used to identify patterns and trends in an individual’s characteristics or behaviour which suggest nothing more than his potential to commit fraud in the future.”” The noble Baroness said: My Lords, I invite your Lordships to consider further the Government’s amendments on the data-matching provisions of the Bill. I should like to make it clear that although I will speak as though they affect only the Audit Commission’s work in England they will similarly apply to equivalent exercises undertaken by the auditing bodies in Wales and Northern Ireland. Your Lordships expressed concerns in Committee that the Audit Commission could use its new powers to profile individuals on the basis of their particular characteristics and behaviour in order to predict their future propensity to offend. The Audit Commission had, and has, no intention of profiling individuals in this way. Rather, as I explained in Committee, the purpose of including a power to identify patterns and trends is to enable the Audit Commission to identify where individuals may be working in concert to commit fraud or crime, or where organised crime rings may be operating across a particular geographic area. As drafted, the definition of ““data matching”” would allow the Audit Commission to provide its analysis of emerging trends and patterns to those participating in the exercise so that they can co-ordinate their efforts in tackling at its root cause fraud that is happening now. I understand from the demonstration of the national fraud initiative that the Audit Commission recently gave to some Members of the House that the noble Lord, Lord James, was anxious to know how the national fraud initiative would help tackle organised crime rings where a Mr Big was lurking behind a number of small operators. I do not see the noble Lord in his place, but I know that it is an issue of concern and so I am happy to deal with it. As I have explained, this is precisely why the Audit Commission needs the power to be able to identify patterns and trends that emerge from data matching. Your Lordships may also recall the point I made to the House earlier; the new power will enable the Audit Commission to identify emergent risks in areas where existing fraud is on the increase so that bodies can better target their resources. That said, I do recognise that legitimate limits need to be in place to ensure the protection of individual liberties, not least privacy and the presumption of innocence, that citizens in this country are entitled to enjoy. Following a useful discussion with the noble Baroness, Lady Anelay, for which I am grateful, I understand that her concern is to prevent profiling which could be used to predict the propensity to offend in the future. I can understand the noble Baroness’s concern considering the particular nature and purpose of the national fraud initiative. As we have said all along, this initiative is designed specifically to detect anomalies without making any assumptions as to guilt. On that basis, I have tabled an amendment which I hope will meet that concern. It will impose a sensible limit on the extent to which data matching can be used for the identification of patterns and trends in the national fraud initiative. Specifically, the amendment will ensure that data matching cannot be used to profile individuals according to their characteristics or behaviour so as to predict the likelihood of future offending. I hope that that will provide the desired assurance about what the Audit Commission can and cannot do with the national fraud initiative tool and, at the same time, leave in place provisions which are essential in the fight against existing fraud. I hope that the noble Lords, Lord Thomas of Gresford and Lord Dholakia, will agree with that. I know that that concern was raised on the matter. The noble Lord, Lord Henley, and the noble Baroness, Lady Anelay, propose that the Audit Commission should not be able to obtain patient data from bodies that are under a mandatory duty to participate in the national fraud initiative. Patient data are already explicitly excluded from the data that bodies may contribute to the Audit Commission on a voluntary basis. Therefore, Amendment No. 102 would effectively mean that the Audit Commission would not be able to require patient data at all. I must resist this amendment on the grounds that, first, the exclusion of these data could severely undermine the value of the national fraud initiative to the ““mandatory bodies””, particularly NHS trusts, and, secondly, there are adequate safeguards to ensure that this sensitive information is dealt with in an appropriate manner. I should say at the outset that the national fraud initiative does not currently use medical records or clinical data in its data-matching exercises, nor does it have any plans to do so in the future. The term ““patient data”” is, however, defined more broadly than that to include not just clinical information, which the Audit Commission does not, in any event, use, but also demographic data, such as a patient’s name and address. Specifically, patient data for data-matching purposes mean data that relate to an individual and are held for ““medical purposes””, as defined in the National Health Service Act 2006. The term ““medical purposes”” is, itself, broadly defined to capture information held for the purposes of preventive medicine, medical diagnosis and research, the provision of care and treatment and the management of health and social care services, as well as information about individuals’ physical or mental health or condition, the diagnosis of their condition or their care and treatment. The Audit Commission may wish to use demographic data in data-matching exercises where they could indicate fraudulent activity, such as where practitioners either knowingly receive payments from NHS trusts for patients who are no longer registered with them or duplicate payments for those patients. NHS trusts will be mandatory bodies for the purposes of the Audit Commission’s data-matching exercises, and these data will be obtained from those bodies. However, we recognise that patient data—even just their demographic aspect—are particularly sensitive pieces of information. For that reason, following consultation with officials at the Department of Health, voluntary bodies have been precluded from providing any patient data, both demographic and clinical, to the Audit Commission on a voluntary basis under these provisions. In our view, this achieves the correct balance between, on the one hand, using patient data for those bodies for which we have decided it is especially important, and therefore mandatory, to participate in the national fraud initiative and, on the other, bodies for whom it is merely optional. I also draw your Lordships’ attention to the specific protections that will apply with respect to the use and disclosure of any patient data used for data-matching purposes. Where patient data have been included in the national fraud initiative, the results of those matches will, under new Section 32D, be disclosable only if the purpose relates to a relevant NHS body or its auditor. A breach of these provisions governing disclosure will attract criminal sanctions. On that basis, I hope that the noble Baroness will not feel it necessary to press her amendment. I turn now to Amendments Nos. 101A to 101C, tabled in the names of the noble Lords, Lord Dholakia, Lord Burnett and Lord Thomas. They would have the effect of amending the proposal that we have tabled with respect to the Audit Commission’s power to identify patterns and trends from data matching. I shall address Amendments Nos. 101A to 101C together. Their intention seems to be further to limit the extent to which the Audit Commission will be able to undertake data matching, first, by removing the words ““nothing more than”” and, secondly, by adding another circumstance where the Audit Commission will be specifically precluded from using its powers. I am afraid that we must resist these amendments for the following reasons. I refer noble Lords to the proposal that the words ““nothing more than”” be removed. I understand that the amendment is designed to ensure that data matching cannot be undertaken to profile individuals who are likely to commit fraud in the future, even if there are ancillary benefits to be had. I appreciate the concerns that have been raised in this House regarding the extent to which data matching may be used to profile individuals. This is precisely why I tabled Amendment No. 101. However, this subsequent amendment goes too far. The words ““nothing more than”” have been deliberately chosen to target the specific mischief we are trying to address, without compromising the exercise as a whole. I hope we all agree that we do not want the Audit Commission to be able to use data matching to identify patterns and trends in individual behaviour or characteristics so as to predict future propensity to offend. However, by removing the words ““nothing more than””, we run the serious risk of losing data matches that indicate fraud that is happening right now merely on the basis that they might also be taken as an indication of propensity to commit fraud in the future. We are seeking to preserve not simply ancillary benefits but the integrity of the core exercise itself. Noble Lords have proposed an amendment that will insert a further circumstance in which the Audit Commission will be precluded from undertaking data matching. I understand that this is to make clear that the Audit Commission should also be prevented from using data matching in order to identify individuals who may fit a profile of those who might commit offences in the future. I shall start by reiterating that the Audit Commission has no intention of using data matching to profile individuals in the first place, much less to identify individuals who may fit these. In any event, the amendment that I am proposing will already prevent the Audit Commission creating such profiles in the first place. If this is the case, it must surely beg the question as to exactly what it is anticipated the Audit Commission will have available in order to achieve the mischief that is feared. On this basis, we hope that the House will be content with the amendment. We think that it is significant; it hones the issue finely; and goes further than the amendment suggested by the noble Baroness. The reason it goes further is that we thought it important to have the clarity that will prevent the Audit Commission doing that which none of us would wish it to do, and that which it itself asserts it does not wish to do. Our amendment gets it just about right. As your Lordships’ know, I claim no credit for the drafting because those who are really experienced and specialist in drafting have helped us to do this on behalf of the House. With that, I hope that the noble Baroness, the noble Lord, Lord Dholakia, and other noble Lords will be content.