HOUSE OF COMMONS
Second Standing Committee on Statutory Instruments, &c.
DRAFT ACCESS TO PERSONAL FILES (HOUSING) (SCOTLAND) REGULATIONS 1992
Tuesday 14 July 1992
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The Committee consisted of the following Members:
Chairman: MR. IAIN MILLS
Abbott, Ms. Diane (Hackney, North and Stoke Newington)
Canavan, Mr. Dennis (Falkirk, West)
Clarke, Mr. Tom (Monklands, West)
Connarty, Mr. Michael (Falkirk, East)
Dalyell, Mr. Tam (Linlithgow)
Fairbaim, Sir Nicholas (Perth and Kinross)
Maxton, Mr. John (Glasgow, Cathcart)
Michie, Mrs. Ray (Argyll and Bute)
Monro, Sir Hector (Parliamentary Under-Secretary of State for Scotland)
Paice, Mr. James (Cambridgeshire, South-East)
Patnick, Mr. Irvine (Sheffield, Hallam)
Robinson, Mr. Mark (Somerton and Frome)
Squire, Ms. Rachel (Dunfermline, West)
Thompson, Mr. Patrick (Norwich, North)
Twinn, Dr. Ian (Edmonton)
Vaughan, Sir Gerard (Reading, East)
Ward, Mr. John (Poole)
Wilkinson, Mr. John (Ruislip-Northwood
Dr. M. R. Jack, Committee Clerk2 3 Second Standing Committee on Statutory Instruments, &c. Tuesday 14 July 1992
[MR. IAIN MILLS in the Chair]
The Parliamentary Under-Secretary of State for Scotland (Sir Hector Monro): I beg to move. That the Committee has considered the draft Access to Personal Files (Housing) (Scotland) Regulations 1992. The draft regulations require local authorities and new town development corporations in Scotland and Scottish Homes to give tenants access to non-computerised records of information about them. We have consulted extensively on the regulations and they have been substantially redrafted in the light of the comments received. The regulations were asked for by hon. Members and stem from the private Member's legislation of the hon. Member for Roxburgh and Berwickshire (Mr. Kirkwood). It might help the Committee if I go briefly over the main points. First, the present draft regulations relate to tenants' records not held on computer. Authorities are already required under the Data Protection Act 1984 to give access to computerised records and, in drawing up the present regulations, we have sought to keep as close as possible to the 1984 Act to avoid confusion. Secondly, I turn to the scope of the regulations. The requirement to give access applies to a local authority, a new town development corporation or to Scottish Homes. People who are to be given the right of access are current and former tenants of those authorities and current and former applicants to those bodies for tenancies. The Access to Personal Files Act 1987 requires also that the regulations provide access to any information about members of a tenant's family that is held in connection with the tenant's relationship with the landlord. I stress that that applies only to information that is relevant to the tenant. There is no right, for example, for someone to have access to information about an application for a tenancy made independently by a member of his or her family. The regulations give a right of access only to personal factual information, which relates to a living individual and to any expression of opinion about the individual relating to the landlord—tenant relationship. What I have said about the scope of the access requirement stems principally from the 1987 Act. The regulations set out the procedures for complying with the requirement and those cases that are exempt from access. To exercise his or her right, a tenant must apply in writing to the housing authority. The authority can charge up to £10 for each access application. The same provision is contained in the Data Protection Act. Authorities should respond to the requests as soon as possible. Regulation 5 requires access to be given within 42 days unless an exemption applies. Access is given by the authority supplying a copy of the information to the applicant. The exemptions are set out in regulations 8 to 11, 4 under which the authority can or must deny access to information. The first exemption relates to a third party who could be identified, but excludes the tenant's family, health professionals and housing employees. The second exemption relates to serious risk. Authorities have the power to refuse to make information available when access could cause serious harm to the physical or mental health of the tenant or a third party. The third relates to information about the physical or mental health of the tenant, which has come from a health professional. When the health professional considers serious harm would arise, no access will be given. The remaining exemptions are for cases where disclosure would prejudice the prevention or detection of crime, or the apprehension or prosecution of offenders; and for cases when the information sought is subject to legal professional privilege. The main thrust of the regulations is not just to allow for more openness or to allay fears, anxieties or suspicions that tenants may have about what information their landlords hold; it is also to ensure that the information held is accurate. If a tenant thinks that any of the information to which he has been given access is inaccurate, he can ask in writing for it to be corrected or erased. If the authority does not, agree with the tenant's claim of inaccuracy, it has to annotate the record with the tenant's view. Finally, the regulations provide for a review of the authority's decision by members of the authority who took no part in making the original decision or by a meeting of the full authority. That is, in effect, an appeals system. There is the ultimate judicial review if one goes to the Court of Session. To ensure that those affected are aware of the implications, we intend to issue full guidance to accompany the regulations and to publish an information booklet for tenants. I commend the draft regulations to the Committee.
Mr. John Maxton (Glasgow, Cathcart): I will be brief, but I hope that the Committee will allow me to indulge in my final public duty on the Front Bench.
Sir Hector Monro: Surely not.
Mr. Maxton: Oh yes. I have decided that I have had enough. I appreciate that the Under-Secretary may not be able to provide the same level of expertise as the Scottish housing Minister, who is serving on the Committee that is considering the Bankruptcy (Scotland) Bill, but can the Under-Secretary tell me why it has taken five years to produce the regulations? The Act was introduced in 1987, and five years is a long period for consultation with local authorities and other housing bodies. The regulations could have been produced more quickly. We welcome the regulations. Tenants have often come to see me, and said, "The housing authority keep telling me that I've got an outstanding debt. Every time I go to see them they tell me that it will be taken off the record, but when I apply for a house they still tell me that I have arrears of rent and cannot have a house until they are cleared." Under the regulations such tenants will be able to ensure that the record is put right, which is good. I want to make several points about exemptions. I note that the families of tenants will not be able to stop a tenant 5 gaining information. That will apply not just to someone who is a member of the tenant's family, but to someone who was a member of the tenant's family. In the main, that is right, but let us suppose that a couple have separated after a violent relationship in which the husband beat his wife. If they were divorced, or she had left him and was living in accommodation, he might not know where she was. Indeed, he might continue his violent behaviour towards her if he knew. The new address of the wife might be on the tenant's files. I hope that the Minister will ensure that such a circumstance would not arise. I accept that there have to be exemptions with regard to health. I am not sure how reading a file can affect someone's physical health, although I understand that it might affect his or her mental health. I would be slightly wary in case health boards or local authorities used the exemption as an excuse to cover up a mistake that the health or housing authority had made in relation to the file. I accept what the Minister said about the appeals system. Of course, there is a right to a judicial review, but that exists already. Perhaps, we should have built into the regulations some sort of appeals system that goes beyond the local authority most involved. There will be cases in which a local authority housing dept will wish to stop tenants seeing files that make the authority look stupid. When it has made mistakes, it will use every excuse it can to prevent tenants from having access to the files. In organisations people protect each other against outsiders. Therefore, the appeals system should be such that tenants can go beyond the local authority to a third party—a sheriff or some other body established by the Secretary of State—to ensure that, when a mistake is made on a file, it is rectified. I assume that the appeals system will give individuals the right to appeal in order to gain access to a file, if they have been denied access to it. I hope that the Minister will respond to those few points.
Sir Hector Monro: I am grateful to the hon. Member for Glasgow, Cathcart (Mr. Maxton) for his constructive comments. I understand that this might be his valedictory speech as an Opposition Front Bench spokesman on Scotland, but I an sure that we will frequently hear him speak in the House from the Back Benches. It has taken five years to produce the regulations because after an Act has come into force there is always a waiting 6 period. Extensive consultations and a draft and a redraft of the regulations were necessary. The Department first went ahead on this front with education and social work and this is what one might call the third round in the provision of additional information. The process has taken some time but, given the results of the final draft, it has been worthwhile. I am sure that the hon. Gentleman will agree that there are not an enormous number of applicants for the information. The hon. Gentleman asked about exemptions. They are important and the local authority should use its discretion, especially in cases in which there has been violence within the family, which I and the hon. Gentleman will agree occurs all to frequently. The exemption covering mental harm could be used in those cases, but we are confident that the housing authorities will be careful about disclosing information. If the couple were separated or divorced, they would cease to be relatives and it would be impossible for the applicant to gain further information about the spouse who had left the household.
Mr. Maxton: Paragraph 8(5) states: "Accessible personal information falling within paragraph (1) is not exempt if the only individual who is likely to be identified is or was— (a) a member of the tenant's family". If the paragraph stipulated "is", the Minister's point would be correct, but the inclusion of the words "or was" makes the matter slightly more difficult.
Sir Hector Monro: Certainly, I shall consider that matter with my Department before the guidance notes are issued so that it is clear whether a divorced person is exempt. It would be wrong for an applicant to have any information about the whereabouts or involvement of his or her divorced spouse. The matter will be considered and I am glad that the hon. Gentleman has raised it.
Question put and agreed to.
Resolved, That the Committee has considered the draft Access to Personal Files (Housing) (Scotland) Regulations 1992.
Committee rose at sixteen minutes to Eleven o 'clock.
THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:
Mills, Mr. Iain (Chairman)
Monro, Sir Hector
Robinson, Mr. Mark
Vaughan, Sir Gerard