§ '(1) Section 21 above shall have effect subject to the provisions of this section in the case of personal data consisting of marks or other information held by a data user—
- (a) for the purpose of determining the results of an academic, professional or other examination or of enabling the results of any such examination to be determined; or
- (b) in consequence of the determination of any such results.
§ (2) Where the period mentioned in subsection (6) of section 21 begins before the results of the examination are announced that period shall be extended until—
- (a) the end of five months from the beginning of that period; or
- (b) the end of forty days after the date of the announcement,
§ (3) Where by virtue of subsection (2) above a request is complied with more than forty days after the beginning of the period mentioned in subsection (6) of section 21, the information to be supplied pursuant to the request shall be supplied both by reference to the data in question at the time when the request is received and (if different) by reference to the data as from time to time held in the period beginning when the request is received and ending when it is complied with.
§ (4) For the purposes of this section the results of an examination shall be treated as announced when they are first published or (if not published) when they are first made available or communicated to the candidate in question.
§ (5) In this section "examination" includes any process for determining the knowledge, intelligence, skill or ability of a candidate by reference to his performance in any test, work or other activity.'.—[Mr. Waddington.]
§ Brought up, and read the First time.4.23 pm
§ The Minister of State, Home Office (Mr. David Waddington)
I beg to move, That the clause be read a Second time.
§ Mr. Speaker
With this it will be convenient to discuss new clause 1—Examination scores—'Where personal data consist of information as to the marks awarded for any educational or professional examination, the provisions of section 21(6) of this Act shall apply as if for the reference to forty days there were substituted a reference to ninety days.'
§ Mr. Waddington
I hope that in moving new clause 2 I am opening today's proceedings on a note of harmony, for there was one point on which all parties were agreed in Committee and that was on the need to make some special provision in the Bill to alleviate the administrative and practical problems which the right of subject access might otherwise present to examining bodies. All the members of the Committee, and, I suspect, many hon. Members who were not so fortunate as to take part in our deliberations, have received representations from schools examining bodies, from universities and, in many cases, from professional bodies pointing out the difficulties that they would face if they were obliged to deal with requests for access to data before the results of examinations were announced.
173 The schools examining boards probably face the greatest problems. As hon. Members will know, these bodies have to work to a very tight timetable to produce the results of GCE and CSE examinations by the middle of the summer so as to fit in with the timetables of further and higher educational establishments which are waiting for the results in order to decide which students to accept for courses; and, of course, the results are also wanted by prospective employers. This means that the examining boards are working at full stretch usually for two or three months in the summer, but in some cases for longer than that, since these days examinations stretch over a longer period. The first practical or oral examination for some GCE subjects may take place as early as April, although final results will not be announced until the end of August. During the intervening period the marks for each part of the various examinations taken by a candidate will be put on to a computer, combined and moderated in various ways, to ensure, for example, a common standard among markers, or to take account perhaps of the illness of a candidate.
If examining boards had to deal with large numbers of requests for access during this period when they were marking and assessing examinations, the whole process could be disrupted, with the result that the announcement of the results might be delayed, to the disadvantage of all concerned. Hon. Members on both sides of the House accepted in Committee that this would be undesirable. I therefore undertook to bring forward on Report an amendment designed to alleviate the problem. New clause 2 honours that undertaking.
I hope it will be thought satisfactory by my hon. Friend the Member for Uxbridge (Mr. Shersby) who has tabled new clause 1, which asks that subject access should not have to be granted before 90 days after the request. It will be clear to the House from what I have already said that 90 days may not be sufficient time to solve the problem faced by the boards in all cases.
There is another point. New clause 1 covers only examination marks. Yet examining bodies will also hold other details of candidates, such as their names, schools and the papers they are taking, and, if they had to give subject access to these details within 40 days, their schedules would still be disrupted. I hope, therefore, that my hon. Friend will agree to withdraw new clause 1.
New clause 2 is broadly in line with the approach adopted in an amendment tabled by the official Opposition in Committee. It applies to personal data which are held in order that the results of an examination may be determined. The data may be held by the body which actually conducts the examination or by any other body which contributes to the assessment process. If, as is sometimes the case, examination scripts are marked by the presenting school before being moderated by the examining board, the data held by the school will be covered. For the purpose of the clause, "examination", as subsection (5) makes clear, includes work which is the subject of continuous assessment, because, as I have already mentioned, the problems involved with such assessments are the same. The data in question need not be the examination data themselves. If this provision is to be of any use, it has to cover associated information. All examining bodies are likely to hold this information, and 174 it must be covered if the intention of the clause to prevent subject access demands from interfering with marking schedules is to be achieved.
The new clause has the effect of extending the 40-day period of grace in cases where a request for subject access is received before the announcement of the examination results. In these circumstances, the user may delay responding to the request until 40 days after the announcement of the results, subject to a maximum total delay from the time of the request of five months. The general intention, of course, is that examining bodies should be able to put requests for access to one side until they have completed the marking process and announced the results. But I should point out that the Council of Europe convention requires that access be granted "without excessive delay". This means that we cannot provide in the Bill for an open-ended delay until results are announced. Although in most cases this will happen within two to three months, it is theoretically possible for there to be a time lag of a year or more, particularly where continuous assessments are involved.
We therefore need to put a maximum limit on the delay, and we believe that five months is reasonable. It is longer than I originally thought would be necessary, but it is difficult to see how it could harm any examinee, and, as I have explained, in the vast majority of cases it will give the school examining boards all the help that they need. Five months is the maximum, and in the vast majority of cases the delay will not be that long. The new clause provides that access must be granted within 40 days of the announcement of the results or within five months of receipt of the request, whichever is the sooner. In most cases, 40 days after the results are announced will be the sooner.
I hope that I have explained adequately why we have decided on precisely these terms. I am sure that the new clause will receive the general approbation of the House.
§ Mr. Denis Howell (Birmingham, Small Heath)
With your indulgence, Mr. Deputy Speaker, I should like to give a brief preliminary welcome to the general attitude taken by the Government to all that went on in Committee. I am sure that all who served on the Committee will not take it amiss if I acknowledge that. At the outset, we wondered whether the Government were hidebound and rigid. There were many interesting debates in Committee on which the Minister could not meet us then, but which he undertook to consider further. I wish to put on record our appreciation of the way in which the hon. and learned Gentleman approached all the difficult matters that we discussed in Committee and of the concessions that he has made, which have considerably improved the Bill. It still does not go as far as we would wish, but that is partly because, as the Minister constantly reminded us, this data protection measure does not cover matters outside word processors, computers and so on. At some time, Parliament must consider whether we should provide for all British subjects rights of access in all circumstances to all information collected about them, as we believe should be done. This applies especially to manual files, which are not covered by the Bill, because they are not data processed, but which we believe should be covered. Nevertheless, we shall not pursue that discussion any further today.
175 It may be convenient if I refer at this stage to five improvements that the Government have made to the Bill as a result of our discussions in Committee. First, the erasure of inaccurate data, with the power of the Registrar to secure compliance with his requirements, constitutes a significant and welcome improvement. Secondly, the availability of damages for individuals occasioned distress by reason of inaccuracy of data held about them is a major and very welcome concession. Thirdly, on the difficult question of third party information, which we discussed in Committee, we are glad that the Government have found it possible to provide a vital extension of the rights of the individual in this regard. Fourthly, Government amendment No. 32 will place an obligation on the Registrar to investigate all complaints of substance. That, too, was requested by the Opposition in Committee and is a worthwhile advance. Fifthly, it will be the duty of the Registrar to encourage codes of practice. There was considerable discussion of this in Committee, and an excellent improvement has been made. As one of our amendments suggests, we should like this to be statutory. Nevertheless, we welcome the significant improvement made by the Government.
For all those reasons, the Opposition are much happier about the Bill than we were on Second Reading. It makes substantial and welcome advances in the protection of the individual. Therefore, we shall support the Government in helping to get the improved Bill on to the statute book.
One difficulty arises in relation to personal information provided by medical practitioners about patients. That will need further discussion in relation to new clause 4. We welcome the agreement that seems to have come out of discussions between the British Medical Association and the DHSS, but we regret that the protection for doctors has not been extended to the social services. We shall seek to express our regret about that at the appropriate point.
I thank you, Mr. Deputy Speaker, and the House for allowing me to make those introductory remarks. I now address myself to new clause 2. I believe that the hon. Member for Uxbridge (Mr. Shersby), who tabled new clause 1, will agree that the proper objectives expressed by all of us have been met by the Government. We have all been inundated with correspondence from the universities, the National Council for Civil Liberties, student unions and other consumer organisations. I believe that the Government have now got this difficult and complex matter about right.
The new clause provides that the principle of access by scholars and students to this information is to be maintained, as most of us would agree that the European convention on human rights requires, but within a sensible timetable which has regard to the difficulties of universities, colleges and other examining bodies. That seems absolutely right to us. I welcome the Minister's initiative in new clause 2.
§ Mr. Michael Shersby (Uxbridge)
I am pleased to say at the outset that the Government's new clause 2 certainly goes part of the way to meeting the anxieties that led me to table new clause 1. I am not sure, however, that it goes as far as I believe that it should go and as I believe that a number of university vice-chancellors feel that it should go. I shall try to explain why.
I have taken a close interest in this ever since the Bill first appeared and I tabled an amendment for consideration in Committee which was moved by my hon. Friend the 176 Member for Southend, East (Mr. Taylor). I followed the arguments deployed in Committee very carefully, I have had discussions with Brunel university in my constituency and have received considerable correspondence and comments on the matter from others in the academic world.
There are very important and genuine reasons for protecting the privacy of personal examination data for a reasonable period of time. The purpose of new clause 1 is to protect the confidentiality of personal data, mainly consisting of examination marks. I realise that my draftsmanship does not match that of the Government, but the intention is clear — to protect marks and other information held by the data user for the purpose of determining results of an academic, professional or other examination, for 90 days from the date on which examination results are published. I wish to draw that point to the attention of my hon. and learned Friend the Minister of State.
As I understand it — I stand to be corrected — new clause 2 would protect information for only 40 days after publication of the examination results. That being the case, it is important for me to deploy the case for 90 days so that at least my right hon. and hon. Friends have the opportunity of understanding a matter that has disturbed many academics who are concerned with examination procedures.
It is feared by many examiners that students will demand access to data and challenge them, not least because they can only win in such a situation. It is felt that delay for a reasonable period would ensure that a request for data would not be made at whim. I suggested a period of 90 days—it is a little longer than the period included by my hon. and learned Friend in his new clause—because it would be a reasonable disincentive to frivolous challenge. There is a further important point, that examiners should be able to conduct examinations without the risk of frivolous challenge to results. Some other valid points have been made.
§ Mr. Robert Kilroy-Silk (Knowsley, North)
I have difficulty in understanding the hon. Member for Uxbridge (Mr. Shersby). I do not follow his argument. I should like to know why such a challenge is frivolous. If it is frivolous, how is it less likely to be frivolous after 90 days rather than 40 days after publication of results?
§ Mr. Shersby
It is thought that challenges may well be frivolous. It has been put to me by some academics that a student who is in a position to challenge his examination results has nothing to lose by so doing. Therefore, the 40 day period will encourage that type of frivolous challenge. Those students who receive disappointing results often feel that they were fair, after a period of mature reflection and discussion. Consequently, it has been put to me that 90 days is a reasonable time for people to consider whether their results are as they should be. That is why new clause 2 has been tabled. I know that the hon. Member for Knowsley, North (Mr. Kilroy-Silk) does not agree with that. I have read his Committee speech in the Official Report. He is entitled to his point of view, and I must deploy the points that have been put to me. I am sure that the hon. Gentleman will accept that, with his customary charm. Although I welcome new clause 2 I would have been happier if the period was a little longer.
We must also consider cases that occur when students expect to receive a first-class honours degree but, when the 177 final grades for the examination are considered and the correct weighting and assessment methods have been used, they receive only an upper second class. As a result of that sort of misunderstanding, which can easily occur and in which anguish is caused to students, it is felt that introducing a slightly longer period for reflection would be of assistance.
It is also likely that the number of appeals against final grades that are made for frivolous reasons would be greatly reduced. Those students who chose to appeal after 90 days would probably be those with a serious grievance, who had thoroughly thought out the reasons for their appeal, while students who wanted to appeal on the spur of the moment, immediately after receiving their grades, would probably have had second thoughts.
Another reason for the 90-day period is that less time would be wasted by university visitors, who might otherwise have to examine appeals made by students on a whim. More time could be spent in examining serious grievances through the usual appeal procedure.
Another point that must be considered is the reduction in the number of appeals, which would have an important side effect. It would probably mean that examination boards would be more ready to use their discretion when making decisions on final grades. They would feel that it was less likely that their decisions would be frequently challenged. That would allow the boards to continue in their important role as moderators of examination results, in which they can make allowances for ill-health, emotional upset and other factors. The 90-day period was suggested for those reasons.
I am sorry that the Minister has not felt able to improve in new clause 2 on the 40 days, to which he referred in Committee. He has clearly made substantial improvements in other respects in new clause 2, which I warmly welcome. It is only right and proper to put on record the genuine concern felt by some universities that the 40-day period is too short. I realise that, as this is a Lords Bill, we shall not have the opportunity to consider the matter again, which is to be regretted.
I shall be grateful if, when he replies, my hon. and learned Friend will comment on the reasons why he chose a period of 40 days and why he does not feel able to make a further improvement along the lines suggested in new clause 1.
§ Mr. Robert Maclennan (Caithness and Sutherland)
I join the right hon. Member for Birmingham, Small Heath (Mr. Howell) in acknowledging that the Government have responded to a tenacious and attentive Committee by bringing forward changes on Report.
I must comment in passing on the contrast between the speech that the right hon. Gentleman made this afternoon and his words on Second Reading. He will recall that, in winding-up the debate on Second Reading, he was roaring like a lion in his opposition to it and all its works. He said that the Bill wasa totally inadequate protection for the individual citizen, of his privacy, of his right to know what information is held about him and of his right to be told when such information is being transferred to others.He also said that the Registrar 178will be overwhelmed with work, and will be inadequately staffed, without codes of conduct approved by Parliament."—[Official Report, 30 January 1984; Vol. 53, c. 98–99.]That position is largely unchanged by the work of the Committee. The contrast between the right hon. Gentleman's roaring like a lion then and his bleating like a lamb this afternoon will be noted.
Having made that point, I welcome new clause 2. It just about strikes the balance that must be struck between ensuring that information held about students is made available to them, in accordance with the terms of the convention, soon after examinations, and enabling examinations to be conducted properly and concluded without interference. Like the hon. Member for Uxbridge (Mr. Shersby), I should be interested to hear how the Minister arrived at the magic figure of 40 days and, even more, the five months from the beginning of the period. That is a little on the long side. I do not know what representations on the periods he received, and from what bodies. It would be interesting to know that, because no doubt the practicalities of what has been suggested will continue to be debated after the Bill reaches the statute book. We should like to be assured on that point.
The Government have shown themselves to be conscious of the representations made by the vice-chancellors and of the proper concerns of students to have access to information about them. When universities, colleges of further education or other institutions of learning affected by the measure have conducted their examinations, they must be prepared to defend their judgment and decisions. It is right that students should have access to the information that is secured by the measure. Therefore, I welcome new clause 2.
§ Sir Dudley Smith (Warwick and Leamington)
I did not have the advantage of being a member of the Committee, so I should like to declare an interest. I am connected with an international banking and credit card firm that is affected by some of the provisions in the Bill. My interest goes wider than that because, as a member of this Parliament's delegation to the Council of Europe assembly, I have always supported the convention on data protection, to which my hon. and learned Friend the Minister referred. I have always felt that it was a specifically important project that affected all the nations of Europe, and that we needed to come into line with it.
The new clause, moved by my hon. and learned Friend the Minister, brings in a common-sense provision. All legislation should reflect sound sense. All too often, the man in the street, and even a specialist, finds it obtuse and not sensible. It must be right to make the marking process paramount and unhindered.
I was impressed by the argument of my hon. Friend the Member for Uxbridge (Mr. Shersby). It is apparent to all of us that, in the anger or disappointment at having failed examinations, people might rush away and put in applications. My hon. Friend said that there should be a cooling-off period of 90 days rather than 40 days. The hon. Member for Knowsley, North (Mr. Kilroy-Silk) asked for an explanation for that. It is a cooling-off period. People genuinely have second thoughts. I should have thought that it was in the interests not only of administrators but of students to have a period for reflection. Students would lose nothing by that if, in the longer term, they were still able to make their appeal. Therefore, I hope that my hon. 179 and learned Friend the Minister will reconsider the matter mentioned by my hon. Friend the Member for Uxbridge because his argument had a good deal of merit.
§ Mr. Kilroy-Silk
As my right hon. Friend the Member for Birmingham, Small Heath (Mr. Howell) said, we welcome the Government's fulfilment of the commitment that they gave in Committee. Like my right hon. Friend, I favour maximum protection of the privacy of the individual. In principle, I am also in favour of maximum access for the individual to information about him. That particularly applies to examination marks, scores or assessments. We believe that there should be as much accessibility to all kinds of information for the individual as is compatible with the privacy of other individuals. As the Minister said in moving the new clause, article 8 of the convention states that there must be access to personal information on an individual, and it must be allowed without excessive delay. Article 9 does not allow any derogation from the principles enshrined in article 8 for examination marks.
Like my right hon. Friend, as well as my hon. Friends the Members for Wrexham (Dr. Marek) and for Stretford (Mr. Lloyd), who spoke long and eloquently on this issue in Committee, I do not believe that there is any reason for marks, scores or assessments of any kind—whether at O or A-level, for professional organisations' examinations or university examinations — to remain hidden from the individual on whom the assessment has been made. There is no reason for secrecy. There is nothing that any examiner should have to hide from the person whom he has been examining. I say that as an examiner at O and A-level, and university level. Neither on past occasions nor now would I be prepared to defend preventing any of the people whose papers I have marked from having access to my assessment of their work.
A student has the right to know the value that has been apportioned by his examiner to his work. We agree that every effort should be made to make the reasons available, to allow the student to know how the marks were arrived at, to see the values attached to different parts of his work, and to enable him to see that there is a clear, rational base for the decisions made about him. This may not always have happened in the past, but the provision will ensure that in future examiners behave conscientiously and competently when they mark examination papers. There is nothing more likely to ensure that an examiner treats an examinee's script properly and conscientiously than if he knows that the examinee will have access to it and might argue about and challenge the marking afterwards. One good reason for the new clause is to ensure that examiners are kept on their toes.
The hon. Member for Uxbridge (Mr. Shersby) said that the 40-day period during which there may be a delay between publication and access to information about examinations is too short, because there may be frivolous applications. When I intervened in the hon. Gentleman's speech, I failed to see the force of his argument, just as I fail to see it now. I cannot see how any student would be more likely to make a frivolous demand for the raw marks to be given to him after 40 days than after 90 days. He is not likely to make a frivolous demand in the first place. It is a serious and important subject. It is not frivolous to say, "I want to see how the raw scores were made and how I was assessed." If the request is serious after 40 days, it will be equally serious after 90 days.
180 Another reason advanced by the hon. Gentleman was that the longer period would enable students to reflect on the results. They will have received their results on publication. All that the students are asking is how results, such as a first class or upper second degree, were arrived at. They do not get that information until 40 days after publication, under the Bill. No extra period for reflection is necessary.
There is no reason why marks should not be available The only problem is trying to ensure that, when they are made available to examinees, there is no disruption of the examining process. That was the only issue that lay between the two sides of the Committee, and it was not contentious. We made an effort to arrive at what we believed to be a sensible and practicable solution.
There is no magic in the 90-clay or 40-day period. Given our principle of wanting to make as much information as possible available and accessible in as short a time as possible, the Government's new clause is desirable. My hon. Friends will support it and, if necessary, oppose new clause 1 tabled by the hon. Member for Uxbridge.
§ Mr. Waddington
I should like to express my gratitude to the right hon. Member for Birmingham, Small Heath (Mr. Howell) for his generous remarks, as well as to the hon. Member for Knowsley, North (Mr. Kilroy-Silk). The Committee was useful. There were interesting debates, and some benefits flowed from them.
My hon. Friend the Member for Uxbridge (Mr. Shersby) said that he wanted a delay of 90 days from the date of publication of the results. That is not the effect of new clause 1, which he tabled. The new clause refers to the provisions of clause 21(6) of the Bill, and its effect would be to postpone the right of access to 90 days after the request for access was made, not for 90 days after the publication of the final results. In fact, our new clause 2 is more generous than his, and that is why I feel that, on reflection, he will be happy with it.
I should go back to the beginning, because we seem to be forgetting how the debate began. It began with the examining boards telling us that they have a busy time in the summer of each year and would find it difficult if, while carrying out the examining process, they were bombarded by applications for access to raw scores as a result of preliminary tests that had taken place before the final examinations. Therefore, a new clause that postponed access to raw scores until after publication of the final results must meet that point, and mean that no request need be dealt with until after the examiners have got over the rush period and produced the final results. That is the reason behind the wording of our new clause.
There is no magic in the 40 days. We have kept that period because it appears in clause 21(6) and we have merely set the clock running, as it were, from the publication of the final results rather than from the date for access.
Likewise, there is no magic in the five-month period because, as I said earlier, the first practical or oral examinations for GCE subjects take place as early as April, and the final results do not come out until well on into the summer. That is where the five months comes from. We felt that by picking on this figure we would cover almost all eventualities without having to say that there would be no subject access until the final results were made, which would put us in peril of offending against the 181 convention. In all the circumstances, I am sure that, on reflection, my hon. Friend the Member for Uxbridge will feel that we have adopted the right course.
The hon. Member for Caithness and Sutherland (Mr. Maclennan) drew a contrast between the words of the right hon. Member for Small Heath on Second Reading and his words today. It would be ungracious of me to follow the hon. Gentleman in that, and I shall say no more.
§ Mr. Shersby
I am grateful for what my hon. and learned Friend has had to say in a typically helpful and generous speech. This matter has caused a great deal of interest and concern in the academic world, and, while I would have preferred my 90 days, I wish to reciprocate in a generous mood. Therefore, I shall not press my new clause.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.