Falklands : LEGISLATIVE ASSEMBLY 23 FEBRUARY 2012
Submitted by Falkland Islands News Network (Juanita Brock) 29.02.2012 (Article Archived on 14.03.2012)
Part 1: Questions for Oral Answer, Motions and Legislation
LEGISLATIVE ASSEMBLY 23 FEBRUARY 2012
Part 1: Questions for Oral Answer, Motions and Legislation
By J. Brock (FINN)
A meeting of Legislative Assembly took place in the Court and Assembly Chamber of the Town hall at 0930hrs on Thursday, 23 February 2012. Present were the Speaker, the Hon Mr Keith Biles (KB). The Acting Chief Executive, Mr Keith Padgett (KP), the Clerk of Assembly, Ms Claudette Anderson-Prior (CAP), the Attorney General, Mr Mark Lewis (ML), Commander British Forces South Atlantic, Brigadier Bill Aldridge (BA), the Hon Congressman Mr Frank James Sensenbrenner (R - WIS) Members of Legislative Assembly Jan Cheek (JC), Roger Edwards (RE), Dr Barry Elsby (BE), Sharon Halford (SH), Ian Hansen (IH), Dick Sawle (DS), Gavin Short (GS) and Mike Summers (MS).
The session began with prayers by the Rev Dr Richard Hines, Priest in Charge of Christ Church Cathedral.
The first item of business was the confirmation of the record of the meeting of Legislative Assembly held on 16 December 2011; and the minutes were signed as a true record.
Papers to be Laid on the Table by The Honourable the Chief Executive
Copies of Subsidiary Legislation published in the Falkland Islands Gazette since the last sitting of the Legislative Assembly and Laid on the Table pursuant to section 34(1) of the Interpretation and General Clauses Ordinance 1977.
• Electoral (Amendment) Ordinance (Correction) Order 2011
• Taxes and Duties (Defence Contractors’ Employees Exemption) (No 4) Order 2011
• Road Traffic (Demining Operations) Order 2011
• Offshore Minerals Ordinance (Rectification) Order 2011
Falkland Islands Government Statements and Audit Reports laid on the Table in accordance with the provisions of Section 57 of the Finance and Audit Ordinance for the year end 30 June 2011
• Falkland Islands Government Currency Fund
• Insurance fund
• Pensions (Old Scheme) Fund
• Capital Equalisation fund and for the year ended 31 December 2010
• The Retirement Pensions Equalisation Fund
These papers are laid on the table pursuant to section 7 of the Public Funds Ordinance
· And a report of the Financial Secretary in respect of funds withdrawn from the Insurance Fund
Questions for Oral Answer
1/2012: By the Hon Dr Barry Elsby
Can the Attorney General please confirm if any of the required work develop the regulations which would have made the Data Protection Ordinance 1995 and the Access to Personal files Ordinance 1995 operative has been carried out in the last 16 years? And if not, are there any records indicating who made the decision not to start or to complete the work?
Answer By the Hon Attorney General Mr Mark Lewis:
Honourable Dr Barry Elsby thank-you for your question; it does not appear that significant work has ever been carried out towards developing regulations which would have allowed the Data Protection Ordinance or the Access to Personal Files Ordinance to have been brought into force.
We’ve had a review of the files. There is correspondence on the file dating from early 1996. The then Attorney General indicated that he would be attempting to draft regulations as soon as he could conveniently find time. He also indicated that at that time he was hoping that the Data Protection Ordinance would be brought into force during 1996 or at the start of 1997.
Clearly that did not happen and it is not impossible to establish whether this was a positive decision at that time not to bring the legislation into force or whether it was simply the case of the then Attorney General being unable to conveniently find the time.
Executive Council considered a paper on access to information in 2004 – that’s Paper No. 162/04. Executive Council noted that the Data Protection Ordinance had not been brought into force and even then it noted that the Data Protection Ordinance had not been brought into force and was not likely to be brought into force within the foreseeable future.
The paper did not specifically deal with the Access to personal Files Ordinance but many of the same issues appear to have applied to it.
The Access to Information Working Group revisited the question more recently as part of a wider review and when it reported to Executive Council in February 2011, Executive Council agreed with the Working Group’s recommendation that the two Ordinances should be repealed.
The United Kingdom Legislation on which the two Ordinances were based was superseded in the UK within 3 years of the two Ordinances becoming law. And the two ordinances now are not fit for purpose.
It is a separate question as to whether or not work should be carried out on new legislation in these areas. This is a matter which the current Legislative Assembly may wish to address. And there will be another opportunity soon for the Legislative drafting priorities to change and the matter can be looked at again as part of that process.
BE: I would just like to thank the Attorney General for his comments.
1/2012: By the Hon Dr Barry Elsby
That this House is of the Opinion that in an age of increased computerisation and data gathering on individuals, the Falkland Islands should have an ordinance that allows regulation of the use and storage of personal data and to allow people the right to see and correct any inaccuracies in the data held.
BE: Thank-you Mr Speaker, Honourable members, when I stood for election last year one of the four points I focused on was the need to develop Legco into something that our constituents into something more relevant – more than a forum where laws are passed just passed with not much discussion by Members. – a place where we can debate issues. And it seemed a shame that the only thing the press feel worthy to comment on (FINN Publishes debates on the Legislation, etc.) is the speeches to the Motion for Adjournment at the end of LEGCO. And I think a quote from John Fowler, the Deputy Editor of the Penguin News recently on the amendments to the Jury Bill before the House when he said we almost had a debate in LEGCO that day. (Someone should tell the Hon Dr Elsby that the new Constitution named the Legislative body “Legislative Assembly.) I think that tells us a lot. This is the Falkland Islands’ parliament yet it seems to me that true debates are a rarity. Now, such a sarcastic comment from the press should, I think, make us question what we do. And today I hope the simple Motion I put forward might help us to start a process of more debate.
The Motion before the House today concerns the proposal that the Data Protection Ordinance 1995 and the Access to Personal Files Ordinance 1995 be repealed. The proposal that these laws are put out for consultation, so I think it’s opportune that at this LEGCO we have the opportunity to debate that so that the people can have some idea what our thoughts are to better equip them to make comments that we are asking for.
And so why does it propose that we repeal the law at this time when many people around the world are increasingly concerned about the amount of data the Governments and Institutions hold on individuals? In 1994 and in 1995 the Councillors as MLAs were then called were concerned about the lack of control over data and these ordinances were drafted.
It went to Executive Council and got passed. It then came to this House and I hope some debate took place and they were passed. They were then assented by His Excellency the Governor on behalf of Her Majesty the Queen, gazetted, and became laws or ordinances. However, at that point, they were ready to shelve the law and they needed the additional work that we’ve heard about by the Attorney General’s department to make them really working ordinances.
Mr Speaker, we have heard today from the Attorney General in his answer to my oral question that it seems that in the 16 years since they had passed. Little or no work has been done to enable these laws to become active, working laws.
The Attorney General rightly says that these laws are now out of date and I would agree with him there. And to repeal them would have been a sensible idea but what I am disappointed in is that the question of repealing hasn’t been then followed up by the need to say we now need some more up to date, more modern legislation to replace the 1995 laws.
If we would repeal these laws – and they are not really effective ordinances – but if we appeal them, are we really saying that the Falkland Islands are in some way immune to abuse of data that people are gathering on us?
I don’t think that’s the case. I think we are at risk – and so what is a data protection act? What if we look at the British and the European Data protection acts? The fundamental thing about those acts is they are there to set up protections for the individual so the data held on individuals will not be misused.
The UK and European acts have really 8 principles that guide them in this process. They say that the information should be fairly and lawfully processed. That the information is processed or a limited period only, that the information they request is adequate, relevant and not excessive, that it is accurate and up to date, that it is not kept for longer than is necessary, that data is processed in line with your rights and that the data is held secretly and securely and finally, that the data can’t be sent around the world. It can only be transmitted to other parts of the world where they have equally good legislation to protect the data.
The other area covered by these acts gives the individuals the right to access that information, to check to see whether it is correct. And if it’s not correct they have the right to make that organisation change the record so it reflects an accurate record.
It also gives the individuals the right for compensation so if your data is misused and you come to harm, distress or financial damage from the release of that information you can claim against that company. And if the company or organisation misuses your data they can be taken to court and fined under the court system.
Some people will feel that the Falkland Islands are remote and don’t need such a law but I point out to you that the Council in 1994/95 believed we did need some form of data protection here and I think things have only got worse in the way of the amount of data that is held and I firmly believe we do need a modern, updated ordinance.
Remote we may be but we are all connected to the internet and just think about the amount of information that is held on us locally. FIG holds huge amounts of data on us – employee salaries, employment records, performance, disciplinary records, tax returns, school records, medical records, any contacts any of us or our families have had with the Social Services, Police Records – these are just some examples of the data that is held locally. Is all this data correct – recorded correctly? Do we have the right to inspect it to see whether it is an accurate record? At the moment it seems not. And what happens if someone in the Medical, Social, Tax department decided to misuse that information, for whatever reason? As things stand at the moment they would face internal disciplinary procedures under the management code and as a last resort they would be dismissed. But have they done anything illegal? My understanding at the moment is, no.
But loss or misuse of confidential information is not always malicious. In the UK a few months ago an authority was fined under the Data Protection Act because they had an insecure computer system. They had information that there might have been a suspected paedophile in the area – not a proven paedophile – a suspected paedophile. What they intended to do was send out a brief e-mail to people who really needed to know their concerns but because their computer system was not as secure as it should have been, the named information on this possible paedophile who hadn’t been convicted was then sent to hundreds of people on their database. They were fined, taken to court and forced to improve their system.
But it’s not just FIG we need to worry about. What of the Bank, what about Cable & Wireless, what about FIC? Lots of people in the Islands hold their data about us. And Standard Chartered Bank holds huge amounts of confidential information about our financial states about our loans about any debts we’d incurred over the years. Now, I believe Standard Chartered Bank is a well-run bank and they follow their own strict guidelines on handling sensitive information. However, when I spoke to the Manager recently when I was looking into this prior to this speech, I asked him if I could have a look at my data that he held to see whether it was correct and whether it was accurate and there was a silence. He said he had never been asked that in his time in the Islands and as there was no law here on data protection, he didn’t know what his answer should be.
We also talked about his workers in the Bank, cashiers, who regularly see very confidential information. I am not for a moment suggesting that employees at the bank are untrustworthy but there was a case reported in the UK recently where a cashier inappropriately accessed someone’s records. The cashier’s husband had been accused of a sexual offence against a lady. She used her position within the bank to access the accused (I think he means alleged victim) records to see if she could find to use to help in her husband’s defence in court. She was prosecuted under the data protection act and dismissed from the bank. If that was to happen here – again, I am sure the bank would dismiss her. Has she committed a criminal offence by accessing the information? I don’t believe she has.
This year we are holding our first on-line census in the Falkland Islands. This highly confidential information will be passed through Cable & Wireless and then on to the Secretariat. It will be handled by the Head of Policy and, I believe, one other person. It will be password protected. That same department can also demand confidential information from businesses in the Islands so that the Government can better assess how the economy is developing. Under our statistics ordinance I believe businesses cannot refuse to give that information. And if it was to be passed on to a competitor, that would be very detrimental to that business. However, there seems to be no legal protection to ensure the security of any of that data.
Government here are looking to outsource the work of many of the Government Departments. And I fully support that. Outsourcing to the private sector is good. But this will entail the movement of lots of sensitive data into the hands of companies who may not have a robust code of conduct. And without legislation I believe that data would be at risk.
Mr Speaker, I hope that this short introduction has highlighted our need for a better Data Protection Act in the Islands and I hope that my colleagues will discuss this and agree with me and pass the Motion.
IH: Mr Speaker, I beg to second this Motion and may I reserve the right to speak a bit later if I so wish?
KB: Agreed thank-you. Does any Honourable member wish to speak to the Motion?
DS: Thank you Mr Speaker. I think it is a very interesting subject and I think it is one that is worthy of some thought. There are a number of strands in there which – I am not going to pick up on all of them because frankly I am still assimilating all the information that you very kindly supplied.
But when it comes down to the security of IT systems within Government I really think that is an important issue but I would just like to reassure my Honourable Colleague that it is something we are actually looking at as part of the e-government strategy. Various departments at the moment will have various methods with which they protect data and the information which they hold. It is not necessarily just personal data can be a wide range of data, whether it’s from the health of patients or the performance of fishing companies but there is a variety of systems that are used. One of the interesting things about the Fisheries ordinance is that a lot of the information provided by companies to the Fisheries Department under that ordinance has to be maintained as confidential. One of the questions that I had at the time when that ordinance was passed, which was, I think, in 2005 was how could I, as a company at that time, reassure that the Director of fisheries is holding that confidential information securely and I never received a proper or adequate response to that question.
So I do concur with you that we need to look at some of these things. Whether or not that is something which Members wish to push up the priority list in terms of legislation is, of course, a matter for this Assembly to decide. And on that I am certain. I know that we have a number of pieces of legislation in the pipeline at the moment. I am also well aware of the fact that we are under-resourced as far as Legislative Drafting is concerned. But I do think this topic is worthy of some debate. Whether it needs to be as wide ranging as the Data Protection act in the UK or not, I don’t know.
I suspect probably not. It is worth a thought. Thank you.
JC: Mr Speaker, Honourable Members, because my Honourable Colleague, Dick Sawle, has said we have an opportunity as we do at least twice yearly to prioritise future legislative drafting. This can be obviously put into the mix with those but whether it is as urgent as some of the other items is a matter for us to decide. But in the meantime, I will be abstaining on the vote on this Motion.
MS: Mr Speaker, Honourable members, the Honourable Barry Elsby raises a number of interesting questions. And many of them have been addressed, I think, in the past perhaps inadequately but perhaps in accordance with our means. And that’s what tends to happen in the Falklands very often. I like to see legislation coming forward when there is some overwhelming evidence that it needs to be dealt with. Is there a correction of a mischief required? Is there something going on that fundamentally concerns us? Is it just the possibility that something could happen because you could spend many, many, many happy hours legislating against all sorts of things that could happen. The real question is whether they do happen or not and is there a real issue at task here? So I think that needs to be considered – I don’t disagree at all with the basic principle that information has to be handled securely and it has to be held secretly.
I believe that a number of Government policies deal with this in various ways and I am not entirely certain that in terms of a statistics ordinance it wouldn’t be a criminal offence to reveal some of that information inappropriately. So I think there is a need to be clear about that.
And there are other bits of legislation to follow the theme that the Honourable Jan Cheek has just raised, there are other bits of legislation that many of us considered very important at the time that actually never came into force and I think particularly of families legislation that was drafted and went to select committee but never got beyond that through the want of resource.
Access to personal files is an important issue that is covered by Government policies and Government policies do set down when you have access to personal files and when you don’t and Government policies set down the obligations of employees in terms of keeping information safe and secret. So it may well be that legislation would make these things more prescriptive and that policies are not sufficient but I think we need to be cautious about introducing new legislation that I think would use up a lot of time and be very costly in terms of resources if there is not a real mischief to correct and it will be my underlying principle in considering this.
GS: Mr Speaker, Honourable Members. I will be very brief. Probably what the proposer and seconder don’t realise is this is something I have muttered on and off about since I have been elected.
It is something that bothers me – not so much the collection but who can gain access that bothers me greatly. I am not saying that people trill out things at the Christmas party or they don’t but I think it probably could be done and there’s not much one could do about it at the moment.
I think it is an area that we have to look at but I am in agreement with other speakers that came before me. We’ve got a very small staff, we have a heavy workload and quite where this fits in the priority of the great scheme of life is not quite sure. But certainly, as it stands, I am quite happy to support this.
IH: Thank you Mr Speaker, Honourable Members, I, too, will be brief. My Honourable Colleague to the left here, Dr Barry Elsby who has put forward some very valid point as have the other speakers – the other Colleagues who have spoken on this.
I have to admit that I had very little feedback from the general public on this issue, so to be honest I am not entirely sure how much importance the man on the street attaches to this but hopefully this debate will bring some response.
I think the prioritising of legislation and how high up our wish list is an important point. But however on balance I do support this Motion, Sir.
BE: I would just like to thank members for contributing their thoughts to this. I note in the Honourable Jan Cheek’s comments in the Penguin News a few weeks ago commented about the consultation phase that we are entering into. She actually said she hoped that we would develop some new form of legislation.
The Honourable Mike Summers obviously doesn’t believe there is a problem yet. I am aware of a number of incidents where data has been inappropriately been used by people who have left the Islands and didn’t face any action here.
I do feel we need an ordinance but everyone has quite rightly said time is limited and we will need to discuss this to decide if it is a priority above other issues.
I thank Honourable members.
KB: Thank you. Honourable members, the Motion before the House is: “That this House is of the Opinion that in an age of increased computerisation and data gathering on individuals, the Falkland Islands should have an ordinance that allows regulation of the use and storage of personal data and to allow people the right to see and correct any inaccuracies in the data held.”
The motion carried with none against and one abstention.
2/2012: By the Hon the Chief Executive
“That this House refers the on-going deliberations on the 2012/13 budget to a select Committee on the Estimates for presentation to the Assembly in May 2012 and therefore for the select Committee on the Estimates to be established at this time.”
KP: Mr Speaker, Honourable members, I proposed this Motion today in order to streamline the budget session process. As Honourable members are aware, over recent years the budget cycle has been extended to ensure that proposals be reviewed in detail and sufficient time is available to resolve any queries that may arise. However, in the past these meetings have been either informal or undertaken through the Standing Finance Committee.
All the decisions have been, in principle only and have been reviewed by the Budget Select Committee in the final week of May. To prevent this repetition but ensure the extended time frame for the processes allowed. The House has recommended to approve the opening of the Select Committee on the Estimates at this time with the final report being presented to the May 2012 Assembly alongside the resulting Finance Bill and the Appropriation Bill.
Standing Orders provide that membership of the Select Committee is all elected members, the Chief Executive and the financial Secretary. It is proposed that the committee be chaired by the Honourable MLA Edwards.
The purpose of the Select Committee on the estimates will be to review the budget submissions from Government offices, related fees and charges and Capital requests in order to provide advice on the Finance Bill to be presented to Executive Council in May 2012.
Mr Speaker, I beg to move that the Select Committee on the Estimates is established.
RE: Mr Speaker, I second the Motion and fully support the Motion and all the things the Financial Secretary has aforesaid.
No one else spoke to the Motion and the Hon Chief Executive had nothing further to say. The motion carried.
The Supplementary Appropriation Bill 2011/2012:
The Hon the Chief Executive:
Mr Speaker, Honourable Members, this Bill, if enacted will provide the legal authority for the additional sum of £918,400.00 to be withdrawn to replenish the contingencies fund.
This sum is represented by two contingencies warrants that were approved following the Standing Finance Committees on 27 October 2011 and 25 January 2012.
The bulk of the funding in the sum of £905,600.00 relates to additional costs from medical treatment and residential care for patients overseas. These were set out in the Standing Finance Committee paper on the 25th of January. The remainder relates to two additional items that were approved by the Standing finance committee on the 27th of October.
I beg to move the first reading of the Bill.