Disabled People: Medical Records

Lord Keen of Elie Excerpts

Tuesday 7th February 2017 Lords Chamber

[Baroness Burt of Solihull]

To ask Her Majesty’s Government what assessment they have made of the use of medical records of disabled parents in child custody cases.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the welfare of the child is paramount in court decisions about a child’s upbringing. As well as any other matters, the court can take into account the medical record of a parent with disabilities if it considers such evidence relevant to the case. Judges must act in accordance with the principles of the European Convention on Human Rights, including those relevant to preventing discrimination on the grounds of disability.

[Baroness Burt of Solihull (LD)]

My Lords, I am sure that noble Members will all agree that the welfare of the child must be paramount, but many disabled parents feel that they are unfairly discriminated against in child custody cases. Some fear visiting the doctor in case the use of their medical records in court might contribute to their being designated unfit parents. The Equality Act is silent on this matter, so will the Minister consider adding a clause to the Act to clarify the situation and to reassure disabled parents that they will be fairly treated in the family courts?

[Lord Keen of Elie]

I am obliged to the noble Baroness for her observation, however I fear that some confusion has entered the debate around the issue of discrimination. The Equality Act 2010 deals with the issue of discrimination on the part of individuals. Judicial decision-makers are exempt from the provisions of the Act on very reasonable grounds; however, any judicial decision-maker is bound, in any event, by the provisions of Articles 6, 8 and 14 of the European Convention on Human Rights, and is therefore bound never to discriminate against any party on grounds of disability.

[Lord Beecham (Lab)]

My Lords, support for 3.7 million disabled people has been cut by £28 billion since 2012 under the Welfare Reform Act. Five years on, will the Government undertake a thorough review of the Act’s impact on this important section of the community? In relation to medical records and reports, will the Government intervene to prevent general practitioners charging the victims of domestic abuse up to £175 for letters which are required to support applications for legal aid?

[Lord Keen of Elie]

I am obliged to the noble Lord for raising a series of questions unrelated to the original Question from the noble Baroness. The question of fees for reports is not a matter that is under immediate review but it is, of course, borne in mind in the context of legal aid provision as a whole. Not every general practitioner makes a charge for such a report.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, my noble friend’s Question raises a difficult point about the use of medical records in litigation generally. The courts, of course, routinely order disclosure of medical records relevant to issues in litigation on the grounds that the public interest in disclosure outweighs the individual’s Article 8 right to privacy. Has the noble and learned Lord’s department considered issuing guidelines as to how courts might protect the confidentiality of medical records which are disclosed?

[Lord Keen of Elie]

I am obliged to the noble Lord. The position is that in determining the child’s welfare needs the court will apply the factors set out in the welfare checklist in Section 1(3) of the Children Act 1989. Only where it is considered that the issue of medical condition would be relevant to the ability of a parent to care for a child would any order be made with respect to the disclosure of medical records. Those medical records may be disclosed in court but not beyond that.

[Lord Elystan-Morgan]

My Lords, does the noble and learned Lord agree that in most cases it will be very much in the interests of the child that that child should be brought up by its natural parents, wherever possible and wherever that is consistent with the welfare of that child? Does he also agree that medical records relating to the parents should never be used as a weapon against the parents but should be used to try to see what assistance can be given to those persons so that they can bring up the child, wherever it is humanly possible for them to do so?

[Lord Keen of Elie]

I entirely concur with the observations of the noble Lord. I remind the House that the Children Act 1989 was amended by Section 11 of the Children and Families Act 2014, which determined that there would always be a presumption that a parent’s involvement in their child’s life will further the child’s welfare unless the contrary can be shown.

[Lord Rooker (Lab)]

Can we take it from one of the Minister’s earlier replies that it is the firm intention of Her Majesty’s Government to remain a signatory to and a member of the European Convention on Human Rights?

[Lord Keen of Elie]

My Lords, that is most certainly this Government’s present intention.

Digital Economy Bill

Lord Keen of Elie Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 6th February 2017 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I come rather late to the table with the Bill, but fresh, if that is the term, from the Investigatory Powers Act, as does the noble and learned Lord. Like me, he may have reflected on the fact that one of our basic documents in debating the Investigatory Powers Act was called by David Anderson A Question of Trust; the issue of trust is equally relevant to the provisions in the Bill. Like other noble Lords, I see the value of sharing information but—and for me it is a big “but”—with constraints, limits, conditions, checks. I would say balances but I do not think they always do the job. It would be too easy in this area to let convenience obscure other considerations. I have concerns about fundamental issues and I have difficulty, as I suspect do other noble Lords, knowing quite what to raise where, but my most fundamental concern is about respect for privacy. The use of bulk data, which we will come to, is bound to raise this.

I share concerns which have been raised about providers—not the public authorities and public services themselves, but the providers. Maybe we have to be realistic, as our public services are now provided so much through commissioning and procurement but, as I read the Bill, the regulations will not be required to list specific providers. I may be wrong about that. If providers have to be included, it would be appropriate for the public to be reassured, for instance, that the public authority in question maintains a register of its providers and publishes it. Maybe, also, all records of information held under these provisions should be destroyed at the termination of the provider’s contract.

The purposes set out here include well-being, which includes the contribution to society. I am not going to let this pass without saying that that risks being read, and I read it, as very paternalistic. I cannot see how it properly covers anything that is not covered by the other well-being provisions. Others have suggested that Clause 30 might lead to profiling. There is certainly a concern over health information, which we will come to separately. I also find it quite hard to think: if you are not contributing to society, are you not deserving of or entitled to public services? I think it is a very unfortunate term to use in legislation.

I share the concerns about Clause 33. At the very least, to share personal information to prevent anti-social behaviour which is not a crime—we know it is not a crime; you do not even need to go to the legislation about anti-social behaviour to know that, because it is referred to separately from crime—is going several steps too far. I start—I am not suggesting that others do not—from the premise that personal information should be kept confidential unless there is good reason not to do so, and if it is not confidential it needs to be treated with the greatest care and sensitivity. Respect for private life is one of our basic values. The Minister would be able to quote Article 8 of the European Convention on Human Rights—as I will do—without reading it. It says that there are “necessary”—I stress that word—exceptions in the interests of national security, public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others. I support the amendments—I think they are in this group—that would import the term “necessary”.

Article 8 refers to disorder and crime, but—I will not be surprised if the Minister quotes some case law at me on the definition of “disorder”—I would have thought that in this context it must refer to something a good deal more serious than what may fall within “anti-social behaviour”.

The Investigatory Powers Act includes the much-welcomed and much-discussed “privacy” clause; during the debate on that we considered the requirements of both necessity and proportionality. The Act also refers specifically to the Human Rights Act and to crime as a consideration when it is a serious crime, and it refers to using “less intrusive means”. These points are all relevant to this debate.

For my part, this amounts to support for all the amendments in the group and a concern to persuade the Government to look at the issues through the lens of rights to privacy as well as efficiency. Most citizens accept—indeed, expect—that in a digital age government departments will share information, but with narrower purposes and stricter checks than the Bill offers.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged to noble Lords for their observations on this group.

The powers in Chapter 1 of Part 5 will support the delivery of better services to achieve specified objectives, such as providing assistance to those suffering, for example, from fuel poverty. Your Lordships would all appear to be agreed on the need for effective data-sharing, but when we talk about that we must mean data-sharing that is secure and commands the trust of the general public—that is sufficiently ring-fenced to give confidence in the whole process. No one would take issue with that.

In that context I make this observation at the outset. It applies not only to this group of amendments but to further groups that we will come to this afternoon and perhaps much later this evening. We have to look at the provisions in this Bill in the context, first, of the Data Protection Act 1998, because the provisions of that Act apply in the context of this Bill. Therefore, as we look at the Bill, we must remember the protections that already exist in law with regard to data in this context. First, processing of personal data must always be fair and lawful. Secondly, data cannot be processed in a way that is incompatible with the purpose for which they were gathered. Thirdly, personal data must be,

“adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed”.

The personal data should be “accurate”, so a subject may be in a position to demand that they should be corrected.

Furthermore, on the point made by the noble Baroness, Lady Hamwee, personal data can be kept no longer than is necessary for a particular objective. Where, therefore, they have been employed for a particular objective—or a party has received them for a particular purpose—and a need to keep the data for that purpose can no longer be displayed, they cannot be retained.

[Baroness Hamwee]

My Lords, will the noble and learned Lord address—in a later group, if not this one—why the terminology in the Bill is “personal information” rather than “personal data”, which might have made the marrying-up of the legislation a bit easier?

[Lord Keen of Elie]

Indeed I can. The reason is that in the present context, personal information extends to bodies corporate and other personalities that are not otherwise covered by the first definition. I will elaborate upon that later but that is why there is a distinction between the two terms. We can see that the two terms substantially overlap but it is only because of that technical distinction that they are employed in this way. I hope that that satisfies the inquiry from the noble Baroness, Lady Hamwee.

The Data Protection Act not only circumscribes the use of data in very particular ways—for example, personal data must be processed in accordance with the data subject’s rights under the Act and be held securely to guard against unlawful or unauthorised processing, which addresses a point that many of your Lordships referred—but provides remedies in the event that those obligations are not adhered to. Generally speaking, that involves a complaint to the Information Commissioner.

Of course there have been lapses in data control. We are well aware of many of them. The noble Lord, Lord Collins, alluded to Concentrix, where there clearly appeared to have been lapses such that the Revenue terminated its contract without further notice in November of last year. We recognise that there are risks associated with data and data-sharing. That is why we emphasise the need to look at the provisions in the Bill not only alone but in the context of the Data Protection Act.

[Lord Collins of Highbury]

There were obviously risks associated with the contract for Concentrix and the fall-out from that contract is certainly ongoing, because of the people who have suffered hardship. The Government will undoubtedly have to investigate even more because at the moment, we are dealing only with the people who have appealed. Can the Minister tell us exactly why the existing provisions for a risk assessment did not stop this contract from going sour?

[Lord Keen of Elie]

As the noble Lord is aware, Concentrix was not the only incident in which there were data breaches. They have happened not only in the context of parties operating with government but also entirely in the private sector. So far as I am aware, no one has made a claim for infallibility where data protection is concerned. Albeit that we aspire to the highest standards in data protection, we are not making claims of infallibility.

The noble Lord, Lord Collins, also referred in the present context to the GDPR, which will come into effect as a European regulation in May 2018. I reiterate that the provisions in Part 5 of the Bill are compatible with the GDPR. The noble Lord appeared to take some issue with that term, but let me be clear: the provisions of Part 5 are drafted in such a way as to be compatible with the regulation. When the regulation comes into direct force, we will look at the provisions of the Act and the codes of practice to ensure that they are consistent with it. That is the way in which these things are done. The regulation is not yet in force and will be applied to the existing statutory structure from May 2018. I reassure him that it has always been intended that Part 5 of the Bill should be compatible with the regulation, for very obvious reasons.

Then there is the matter of the draft codes of practice. At this stage they are, of course, a draft. Those drafts have incorporated comments and advice from practitioners right across the public sector, from the Information Commissioner and from the devolved Administrations, so they have brought in that body of knowledge at this stage.

--- Later in debate ---

[Baroness Byford]

I specifically asked why the responsibility has been placed on gas and electricity suppliers to have regard to some of the things stated in the Bill, and I would be grateful for an answer. I do not mind if the answer is not given now, but if that could be clarified I would be grateful.

[Lord Keen of Elie]

I am perfectly prepared to write to my noble friend to clarify that point, and I will place a copy of any letter in the Library.

[Lord Collins of Highbury]

I thank the Minister for his response. One of the things that we will encounter as we go through this section is the fact that the 1998 Act has some fundamental principles but that we have the Bill before us because there is a need for greater clarity. The world has changed in the past 20 years, certainly in the way that we handle and interrogate data. We no longer simply say that this set of data will go to that person and so on. We do not necessarily even have to share the whole dataset. The point is about how one might interrogate data. It is a very different world. I am not suggesting for one moment that errors do not occur, accidents do not happen and mistakes cannot happen, but in the modern world we conduct risk assessments to understand how we can minimise those things. That is what I want properly addressed when we come back to some of these issues.

The Minister says that the Government will consider the report of your Lordships’ committee. If there are to be further amendments, I hope that we will have time to consider them and even to put down our own amendments to ensure that the principles about which we are concerned will be able to be addressed. With those comments and, if you like, fair warnings, I beg leave to withdraw the amendment.

Digital Economy Bill

Lord Keen of Elie Excerpts

Committee: 3rd sitting Hansard - continued): House of Lords
Monday 6th February 2017 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I, too, support the various amendments in this group. “Having regard to” a matter always seems to leave some wriggle room. If there should be exceptions to compliance—because I think we are talking about compliance here, not about consistency—then those should be spelled out. I accept that having codes of practice outside primary legislation allows for flexibility, which might be useful, for a response to experience of the operation of the code and, perhaps, for changing circumstances. However, there is so much reliance on codes of practice here that an inclusive process for constructing and finalising them is very important, as well as transparency in operation.

The noble and learned Lord will probably have a better recollection than I have of the discussion during the passage of the Investigatory Powers Bill about providing transparency by way of ensuring that people who were affected by the transmission of information knew about it. This was rejected for security reasons, but that would not be the case here. The overall objective has to be transparency and inclusiveness.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, Amendment 81 and the other amendments in this group are intended, of course—and I understand this—to strengthen enforcement of the codes of practice in relation to the public service delivery, debt and fraud, and research powers by requiring authorities who use the powers to “comply with” rather than “have regard to” these codes. The noble Lord, Lord Collins, has sight of a loophole, and the noble Baroness, Lady Hamwee, has encountered wriggle room, but I would take issue with those descriptions.

There is common ground here. We, too, believe that the codes are an important part of the data-sharing powers. However, the Government believe that “have regard to” is the right level of obligation for a code of practice. This is a legal obligation. Such persons when disclosing or using information will be expected as a matter of law to take the codes seriously and follow their requirements in all cases unless there are cogent reasons why they should not do so. It is, of course, common practice for legislation to set out the critical limitations on a power while codes of practice—which are more adaptable, as the noble Baroness, Lady Hamwee, acknowledged—are advisory tools that supplement with regard to best practice, principles and guidance.

The noble Lord, Lord Collins, alluded to a situation in which an authority exceeds its powers for the public good. In such a situation—without going into the detail of it—the authority would be exceeding its powers and it would have to answer for that, whatever the public good might justify in other circumstances.

Key conditions for the disclosure and use of information are set out in the Bill, including what can be shared, by whom and for what purpose. We have followed a common approach taken by government and others, including the Information Commissioner, to provide more detail on how data are to be shared in a code of practice. That does not mean that the code is to be treated lightly. Legal consequences may follow if the code is disregarded, as the Delegated Powers and Regulatory Reform Committee pointed out in its report on the Bill. The relevant Minister can make regulations to remove a body’s ability to share information under the power if it fails to adhere to the code. The noble Lord, Lord Collins, raised the question as to whether that is considered sufficient in the circumstances. We do consider that that is a sufficient safeguard in the circumstances. I also remind noble Lords—in particular, the noble Baroness, Lady Janke—that the first requirement of the Data Protection Act is that processing of data should be fair and reasonable. That underpins in existing legislation the whole approach that should be taken to this Bill.

The noble Baroness, Lady Hamwee, sought to draw a distinction between the provisions here and those in the Investigatory Powers Act about knowledge of data transfers. Of course, although we are not necessarily dealing here with national security, we are dealing with issues such as fraud, where it would be wholly inappropriate to give people advance notice of data sharing, particularly if one were going to address issues of criminal conduct.

Amendment 107B would require breaches of the code of practice on the public service delivery power to be reported to the Investigatory Powers Commissioner. It also places a duty on the Investigatory Powers Commissioner to investigate serious breaches and, where necessary, to inform the relevant individual of the breach. In doing so, the commissioner would have to ask the person in breach to make submissions before making a decision. With respect, the amendment would impose a considerable additional function on the Investigatory Powers Commissioner, where he or she would be bound to deal with breaches of a code of practice on information sharing which in no way relates to the commissioner’s remit of investigatory powers.

Indeed, placing such duties on the Information Commissioner would effectively be broadening the Information Commissioner’s remit without appropriate consultation. It would, as with Amendment 81B, cut right across the functions of the Information Commissioner, as distinct from the Investigatory Powers Commissioner; the Information Commissioner being responsible for upholding the Data Protection Act 1998, and also the safeguards and procedures for dealing with breaches of the code, which are already set out in various provisions. Such an amendment would blur the lines between the responsibilities of the Information Commissioner and the Investigatory Powers Commissioner and potentially lead to confusion and unnecessary duplication. If, in making those observations, I referred to the Investigatory Powers Commissioner when I meant the Information Commissioner and referred to the Information Commissioner when I meant the Investigatory Powers Commissioner, that simply underlines how easy it is to cause confusion in this area.

Amendments 108, 115, 134 and 151 call for the codes to be subject to approval by Parliament. A similar requirement was also raised by the Delegated Powers Committee in its recent report. We are carefully considering that proposal and I assure noble Lords that we will be responding to it shortly. Amendments 109 and 135 would introduce a requirement for the Minister to consult publicly on the code for a minimum of 12 weeks before issuing or reissuing it. Amendments 110, 152 and 190 would require that the Minister demonstrate that responses to the public consultation,

“have been given conscientious consideration”.

The policy in respect of these powers, and much of the content of the codes of practice, have been developed over two years of open policy development with a range of public authority and civil society organisations. The code sets out procedures and best practice drawn from guidance produced by the ICO and Her Majesty’s Government. We amended Clauses 36, 45, 53 and 61 in the other place to ensure our code will be consistent with the Information Commissioner’s data-sharing code of practice. The clauses contain a requirement that the Minister consults the devolved Administrations, the Information Commissioner and any other person the Minister considers appropriate prior to the issue or reissue of the code. I assure noble Lords that these other persons will include civil society groups and experts from the data and technology areas. It is, indeed, our intention to run a public consultation before laying the code before Parliament. I need hardly add that all consultations are taken seriously by the Government and all responses considered with appropriate conscientiousness.

I understand the interest in the codes and the desire to make sure they are effective. The codes will provide a strong safeguard for the use of the power, backed up by real consequences if they are not adhered to. With that, and while we consider the recommendations of the Delegated Powers Committee further—as I have indicated, we intend to do that in the very near future—I invite the noble Lord to withdraw his amendment.

[Baroness Hamwee]

The noble and learned Lord warned us against giving advance notice to potential fraudsters, but I think we are talking in these amendments about notice which may be in retrospect. I am looking at the noble Lord who has tabled the amendments. There are different issues, I think, about giving notice in advance and telling people that you have transferred information. Maybe we need to come back to the distinction between the two at the next stage. On the requirement to have regard but not necessarily to comply, does that not point up the real weakness of a code that is not approved by Parliament? These two bits of fragility seem to me to go hand in hand and undermine the security, as it were, of the regime.

[Lord Keen of Elie]

I am content that we return to the noble Baroness’s first point if she feels that there is a point of distinction to be made. On her second point, I do not accept that there is fragility in this context. We are well aware, by virtue of past practice, that this formulation is appropriate to the application of codes of practice. Indeed, the noble Baroness herself observed that when applying one’s mind to a code of practice, a degree of flexibility is necessary. One cannot freeze them. That is why we consider that the wording here is appropriate.

[Lord Collins of Highbury]

I thank the Minister for his response. Obviously, the codes of practice are key to giving a sense of security and to building public confidence. They are critical, which is why noble Lords want to see exactly how they will end up. I am very happy with the reassurance that the Minister gave regarding parliamentary involvement and consideration of the report of your Lordships’ committee. That is very welcome and we will return, obviously, to some of the issues, particularly on medical information and other information set out in other groups. We will return to the subject of the Investigatory Powers Commissioner in the next group and I will explain in that discussion why we see, perhaps, a distinct role, arising from the debate this House had on the Investigatory Powers Act. In the meantime, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, Amendment 81B seeks to place a duty on the Investigatory Powers Commissioner to ensure that the data-protection rights of citizens are considered and protected under the public service delivery power. The effect of this amendment would be to impose similar duties on the Investigatory Powers Commissioner as are already carried out by the Information Commissioner. It is for that reason that we do not consider that this amendment is necessary. I understand the points that the noble Lord, Lord Collins, has made in this context. We are all concerned to ensure that these powers are ring-fenced as far as is reasonably practicable and that any breach should be policed to the extent required. However, in our view, the Investigatory Powers Commissioner is not the appropriate party to deal with this matter. The Bill is not about investigatory powers, and accepting this amendment would result in a substantial and, as I sought to indicate earlier, confusing addition to the portfolio of the Investigatory Powers Commissioner.

We are of course concerned that there should be public confidence in the provisions of the Bill and in the whole body of data-sharing powers. I understand the observation of the noble Lord, Lord Collins, that the Investigatory Powers Act does everything possible to ensure security is there, so that only the given powers are exercised and that the rights of the individual are put at the head of any agenda, but that is clearly the intention of this Bill as well. That can be achieved by having regard to the position of the Information Commissioner in the context of the present provisions.

I understand and indeed admire the noble Lord’s suggestion that we should in some sense be seeking to future-proof the Bill. There are limits to our ability to do that, but I will return to that point in the context of the regulations that come into force in May 2018. We have already had regard to that in order to try to ensure that the provisions of the Bill will comply with imminent regulations, such as those I have just referred to.

The noble Lord also raised the question of confidentiality and the concerns that have been expressed by the medical profession in that context. Let us be clear that, as noble Lords will recollect, common-law obligations of confidentiality are rarely if ever absolute. We know that various common-law issues of confidentiality tend to be subject to one qualification or another. Concerns have been expressed over the interaction between the provisions of the Bill and medical confidentiality, primarily in respect of the statutory override within the Bill. The provisions of the Bill are clear that sharing data under the powers in the Bill does not breach any existing duty of confidentiality. That includes the common-law duty of confidentiality to the extent that it applies to patient information.

The use and processing of medical information is governed by common law, but also by the Data Protection Act 1998, by the provisions of the Human Rights Act 1998 and indeed by specific legislation which allows, requires or prohibits certain uses of such data. There is no blanket ban on the use of medical information outside the patient-doctor context, and it is not the case that every instance of sharing such information will constitute a breach of confidentiality. Indeed, the General Medical Council’s 2017 guidance expressly states personal information can be disclosed,

“without breaching duties of confidentiality”,

in particular circumstances, one of which is where the disclosure is,

“approved through a statutory process that sets aside the common law duty of confidentiality”.

So it is acknowledged by the General Medical Council itself that this may occur from time to time, and the provisions of the Bill are structured to reflect this. They override duties of confidentiality only in order to ensure that public authorities have clarity in terms of what they can and cannot share under the powers of the Bill. I hope that goes some way to meeting his concerns about confidentiality in that context.

Amendments 84, 87, 119, 138 and 213, which are also in this group and were referred to by the noble Baroness, Lady Janke, cover a broad range of suggested additional safeguards and restrictions on the use of the powers. They seek to introduce, among other things, an express data minimisation rule, a requirement to conduct and publish a privacy impact assessment and provisions extending the Information Commissioner’s powers in respect of enforcement notices. They also introduce a provision enabling data subjects to request that inaccurate personal data disclosed under the powers be amended. We are firmly of the view that while all of these requirements represent important safeguards on the use of our powers, they are already provided for in different ways under the Bill, the codes of practice or existing legislation, including in particular the Data Protection Act 1998. Indeed, under the DPA only the minimum personal data necessary may be shared to achieve the particular objective, and all personal data that is held must be accurate. I hope that that goes some way to meeting one of the points made by my noble friend Lady Byford about excess data being given to public authorities. That is simply not permitted in the existing legislation, particularly the requirements of the Data Protection Act 1998. Over and above that, the Information Commissioner already has a range of mechanisms to enforce compliance with the DPA. Amendment 213, which would insert a new clause on enforcement notices, would not add to those powers in any material way.

Further, Amendment 213 requires certain information to be gathered in respect of the benefits of data-sharing arrangements. Again, that is not necessary: bodies wishing to exercise the powers in these provisions must consider benefits as part of their privacy impact assessment. We acknowledge the importance of privacy impact assessments and, following discussions with the Information Commissioner’s Office, will look to return to this matter on Report to address concerns about public authorities’ adherence to the Information Commissioner’s specific guidance on privacy impact assessments, as well as privacy notices. I hope noble Lords will accept our willingness to return to that matter in due course.

Amendment 213 would bar the processing of personal information under the powers for particular purposes. With respect and understanding of what lies behind the amendment, our approach is simpler and more complete. There are specific limited purposes for which personal information can be disclosed under Part 5 of the Bill. Other than a few limited exemptions, the disclosure or use of personal information for other purposes is not permitted. Tough new criminal sanctions will apply to all unlawful disclosures.

Amendment 87 seeks to introduce a duty to review in the public service delivery power, akin to the existing duty in the debt and fraud powers. All data-sharing arrangements under the debt and fraud powers have to be piloted and reviewed after three years to ensure that the powers deliver demonstrable benefits. The public service delivery powers are different in kind, being more conventional data-sharing powers, constructed specifically to improve the delivery of services to citizens in cases of acknowledged need, such as assisting those suffering from fuel poverty.

On that point, my noble friend Lady Byford essentially raised the question of definitions—what do we mean by “fuel poverty”, “well-being” and “warm home discount”, as mentioned in Clause 31? All this is dealt with in Part 2 of the Energy Act 2010, which contains the schemes referred to in Clause 31(3)(a). I hope further consideration of those provisions of the Bill may go some way to meeting her concerns about those definitions.

On the question of private fraud, of course we are alert to the idea that where there is data sharing there may be data intrusion, and we are determined to guard against that. That is why we seek to ring-fence these powers in the way that we do in the Bill. We have not claimed that any system we introduce will inevitably be infallible; history tells us that where we ring-fence, people will seek to go under, over or through such a fence. However, we shall try to ensure that all data that are shared in this context are kept as secure as we reasonably and practicably can keep them.

Amendment 88 would change the definition of “personal information”, a point raised by the noble Baroness, Lady Hamwee. The point here is that in the current draft “personal information” includes “a body corporate”. The existing definition is intended to capture all persons, including all corporate bodies, to ensure that taxpayer information, including that of bodies corporate, is protected irrespective of the size of the organisation. Narrowing the definition would limit the protections for HMRC data under these powers, which would be likely to affect significantly HMRC’s willingness to make use of the powers. I am sure the noble Baroness is aware that the disclosure of data by HMRC is subject to additional statutory controls quite distinct from the provisions of the Bill, and these have to be factored in. This is where the term “official” comes into use because the existing statutory legislation uses that term in the context of data and disclosure. Therefore, for the purposes of consistency, that term is used in this context. It is not an attempt to suggest that the janitor, or anyone else, should be responsible for disclosing relevant information—certainly not the commissioners of revenue in isolation.

Amendments 87 and 93 are also in this group. Clause 33(7) provides that a disclosure under the public service delivery power does not breach any obligation of confidence or any other restriction on the disclosure of the information. This provision ensures that public authorities can be confident that their disclosure is lawful, provided that they comply with the strict requirements of this legislation. To remove that subsection would undermine a primary objective of providing authorities with the legal certainty required to ensure efficient and effective data sharing under these powers. In other words, where they satisfy the requirements of this legislation, they do not have to go back and worry about any aspect of the common law of confidentiality on individual occasions, which would effectively make the provision unworkable.

Amendment 93 seeks to expressly exclude health data from the public service delivery clauses. I have already touched upon this. The Government believe that this amendment, while well intentioned, is unnecessary and would lead to the kind of legislative barriers that the Bill is designed to overcome. As I have indicated before, the Government recognise the particular sensitivities around identifiable health information, and indeed this was highlighted in the National Data Guardian’s recent review of data security, consent and opt-outs. For this reason, health bodies in England are not included in the draft list of bodies that will be permitted to use the powers in the Bill. Health and adult social care information, however, could potentially be of considerable assistance in bringing benefit to individuals, as this power aims to do. I acknowledge that we may wish to bring such bodies within the scope of these powers in future, but we will form a view on this after the implementation of the National Data Guardian’s recommendations and public consultation on the issue. We believe it would be wrong to rule out that possibility until that debate has been concluded. However, I underline the point that at present health bodies in England are not included in the draft list of bodies that will be permitted to use these powers.

I turn to Amendment 100. Clause 34(8) provides that the prohibition on onward disclosure, and its associated provisions, do not apply to personal information disclosed by HMRC. The amendment seeks to remove that provision. There was a suggestion that someone was seeking consistency here. Throughout Part 5 of the Bill, in order to take account of HMRC’s statutory duty of confidentiality and maintain consistency with the existing statutory framework in respect of HMRC information, the Bill contains separate provisions for the disclosure of information by HMRC. Criminal sanctions apply to the disclosure of HMRC information, but it is all framed slightly differently in order to be consistent with earlier statutory provision. I refer in particular to the Commissioners for Revenue and Customs Act 2005, which already covers these areas. The effect of the noble Baroness’s amendment would be to create two regimes for disclosing HMRC information under this power. We suggest that that would undermine consistency between Part 5 of the Bill and the provisions that already exist under the Commissioners for Revenue and Customs Act 2005. I hope that that goes some way to explaining why HMRC, though not a special case, is dealt with slightly differently within Part 5.

The noble Baroness, Lady Byford, then referred to Amendment 196. Again, in the context of accountability for public interest disclosures of non-identifying HMRC information, the aim of Clause 65 is to enable Her Majesty’s Revenue and Customs to meet requests from external organisations to provide aggregate statistics or general information, which is what other government departments do. Safeguards for disclosure of personal information will continue to apply for the reasons I have already alluded to. This amendment, again, would be inconsistent with HMRC’s existing statutory framework which authorises officials to act on behalf of the commissioners of revenue. It would not be practicable for the commissioners of revenue to have to deal with each of these requests. Indeed, it would be an unnecessary use of public resources if that was the case.

The noble Lord, Lord Clement-Jones, raised a point that appears to have prompted a note from the Box which I have not yet read. I shall scan it now. And I will undertake to write to the noble Lord. On that occasion, I will use typescript.

In those circumstances, I invite noble Lords not to press these amendments.

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[Lord Keen of Elie]

I am obliged to the noble Baroness, Lady Hamwee. Although the definition of personal information differs from the definition of personal data in the DPA, all personal data shared and used under the public service delivery provisions must be handled in accordance with the framework of rules set out in the DPA, and in particular with the data protection principles, because the DPA is not overridden by this chapter. To the extent that the class of personal information is wider than personal data, although the DPA does not directly govern such information, we still expect that information will be handled in accordance with that framework because of the requirements of the codes of practice under Part 5. I hope that answers the noble Baroness’s question.

[Baroness Hamwee]

My Lords, I see an amendment at Report coming up.

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On data that could be used to detect fraud, there seems to be no reason why the standard declaration for this purpose could not cover all lawful anti-fraud activities. Law-abiding citizens could, as with the provision of bank or mobile phone statements, allow transparency here, and this could reduce the opportunity for people to cheat the system. People would then be able to better detect fraudulent activity themselves. Indeed, such an ability would be most helpful for the Office of the Public Guardian which has a large fraud department. It would allow it to directly access data concerning a subject’s finances, which is currently held by a court-appointed or person-appointed deputy, attorney or guardian. This would allow the fraud department to investigate much more effectively as it would not have to seek permission from that appointee, a situation which has allowed fraud to occur in the past. There have been notable examples of difficulties in detecting financial fraud. Amendment 213C may specifically help with such detection.

[Lord Keen of Elie]

My Lords, the noble Lord, Lord Collins, should make no apology for revisiting the issues of transparency and public confidence because they lie at the heart of what this Bill is attempting to achieve and are contained in Part 5. It may be déjà vu again but that is perfectly justified by the circumstances. We are all concerned to ensure that there is such transparency within these provisions as to maintain, and perhaps even restore, public confidence in the use and sharing of data.

Amendment 82ZA proposes that, within six months of the Act coming into force, an independent review of the collection and use of data by the Government and commercial organisations is conducted. With respect, the scope of the review appears extremely broad and goes much further than the provisions of Part 5. The Royal Society and the British Academy are undertaking a review to consider the ethical and legal frameworks needed in the United Kingdom as data technologies advance. We intend to consider the findings of that review when it is published. In addition, I mentioned that the general data protection regulation will come into effect in the United Kingdom in May 2018. The implementation of that regulation will represent a significant change to the data protection legal framework for both the public and private sectors, including strengthening rights for individuals so that they have more control over their personal data. We intend to work with the Information Commissioner to explore how we can best meet these requirements, as well as to improve transparency in this space. As such, we do not see the value in commissioning a further major review of data ahead of preparing to implement the new data protection framework when the regulation comes into force in May 2018.

Amendment 103 also seeks to improve the transparency of data sharing under the powers in Part 5. As I have indicated, we support this intention as transparency, along with the protection of personal data, is clearly at the heart of all these proposals. There are, however, a number of real problems with the proposed new clause. Setting the requirement and contents in primary legislation would significantly restrict our ability to explore and consider the benefits and consequences of publishing a register. For example, there may be a need to exempt the inclusion of certain types of data sharing for reasons such as national security or commercial confidentiality.

Ahead of the 2018 regulation coming into force, we will work with the Information Commissioner’s Office and other interested parties to explore how we can best meet its requirements and improve transparency. In our view, the statutory codes of practice in the Bill are a more appropriate vehicle for setting out requirements to support greater transparency. We will run a public consultation on the codes of practice as well as the required statutory consultations and we propose, as part of that, to gather views on the type of information about data sharing that should be captured and made public, as well as the risks and benefits. In addition, the draft codes already contain requirements for privacy impact assessments to be prepared and published. Further, we are continuing to explore with the Information Commissioner whether more can be done in this Bill to ensure that his codes of practices on privacy impact assessments and privacy are fully considered when data are shared under Part 5. I hope to return to this point later in the proceedings.

Amendment 104 proposes an obligation for organisations to report data breaches and submit associated audit returns to the Information Commissioner’s Office. As I have indicated, the EU general data protection regulation will apply in the United Kingdom from May 2018. The new regime will introduce tough measures on breach notification, making it a requirement for all data controllers and data processors to report breaches to the Information Commissioner’s Office if they are likely to result in a risk to the rights and freedoms of individuals, and the individuals affected must also be notified where there is a high risk. The new regime will also allow tougher penalties to be imposed on organisations in breach of the rules. I believe these will be penalties of up to 4% of the organisations’ total global annual turnover, or €20 million.

Under current arrangements, the Information Commissioner’s civil monetary penalties guidance says that he can take into account what steps, if any, the person or organisation had taken once they became aware of the contravention, when determining the amount of the monetary penalty to be issued, so there is provision for those who delay or defer the reporting of data breaches. At this stage, we are confident that the Information Commissioner has the necessary powers to take action against those organisations that are in breach of the rules so, while I accept the spirit of the amendment and understand the need for transparency, I do not believe it is necessary as the new tougher rules under the EU regulations will apply from May 2018. As I stated, under the current regime, the commissioner can and does take into account what steps, if any, an organisation has taken in addressing breaches and in deciding penalties under the Data Protection Act.

Amendment 111 would require a secure audit record to be compiled specifying the personal information shared under the public service delivery power. This well-intentioned amendment is also considered unnecessary. The code of practice that has been drafted in support of the public service delivery provisions already requires an audit to be kept by data controllers of information shared under this power, and the Information Commissioner’s data-sharing code of practice similarly requires organisations to keep records of information shared. In addition, the EU general data protection regulation will apply to Part 5 and place further specific legal obligations on organisations to maintain records of personal data shared and of processing activities. Organisations will now make the necessary preparations to comply with that regulation.

For the benefit of the noble Baroness, Lady Finlay, I emphasise that the processing of personal data under the public service delivery power must already be in accordance with the Data Protection Act. The Information Commissioner is responsible for enforcing and promoting compliance with the Data Protection Act. The commissioner undertakes a programme of consensual audits across the public and private sector to assess their processing of personal information. The commissioner also has the power to conduct compulsory audits of public sector entities to evaluate compliance with the data protection principles. The commissioner has powers to obtain access to the information she may need to conduct those assessments.

Digital Economy Bill

Lord Keen of Elie Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 6th February 2017 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

I expected more people to be inspired by the contribution of the noble Lord, Lord Arbuthnot, and to join in the debate. I am rising to give my support to Amendments 105 and 106 and to thank the noble Lords, Lord Arbuthnot and Lord Carlile, for highlighting this simple failure in company policy, which can lead to much bigger dangers and threats. As the noble Lord said, it can have commercial implications, personal privacy implications and, ultimately, national security implications. While we all have a part to play setting the highest standards of data protection, it is true that all too often we put the focus on national Governments without recognising the equal responsibilities of the private sector and private companies to play their part. This is particularly vital, given the number of private sector organisations which access data for government contract work. However, it also extends into other realms of commercial activity, such as commercial personal profiling, in which companies build vast data banks of our shopping habits, our friends, our movements—literally, where we are moving around in cities and towns—and our vulnerabilities, all of which have huge value both in their own hands and in the hands of cyber-thieves. These are issues which we have also flagged up in other amendments tabled today, and we have tried to build in more safeguards. My noble friend Lord Collins has said that we believe that individuals should have the right to know what information is being held about them, for example. They should have the right to be able to withdraw permission for the data to be held, and they should have the right to know immediately if a data breach has taken place.

We welcome the amendments, which would begin to address some of our concerns, by putting a straightforward obligation on companies to prepare a cybersecurity report each year, detailing the measures being taken to ensure that data are being kept safely. It is a simple ask, and it should not really be necessary, but the all too frequent security breaches taking place underline why a legal requirement has to be imposed. An Institute of Directors report last year showed that companies tend to keep quiet when there has been a security breach. As a result, there are no accurate figures on the extent of this crime, or the extent to which companies are being held to ransom. A survey of business leaders found that only half had a formal strategy in place to protect themselves and just 20% held insurance against an attack. Yet we also know that companies are also losing confidence in their encryption systems, their staff capabilities and awareness and the ability of their software to withstand a deliberate assault.

This is a huge issue. Of course, we have a vested interest in sorting this out, as often it is our personal data which are being stolen. But on a wider sphere it impacts on everything from company finances to sensitive market data and research and development. So we very much welcome the initiative set out in these amendments, and agree with the noble Lord, Lord Arbuthnot, that they are helpful. In itself, they will not completely solve the problem, but they represent another small step in getting companies to act responsibly in managing the data that they hold.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, Part 5 of the Bill requires public authorities and specified persons to specify and meet specific legislative conditions and controls on the handling of personal information. As I have said on a number of occasions this evening, these provisions will be underpinned by codes of practice setting out data security requirements, including cybersecurity. A body that fails to meet these could be prevented from using the data-sharing powers. That is the context in which I turn to Amendments 105 and 106.

Amendment 105 would require all but the smallest of companies to conduct audits on their cybersecurity and to report annually on it and their data protection measures. Clearly, the Government recognise that effective cybersecurity risk management is important to the success of the economy and, indeed, to ensuring the safety and integrity of private citizens’ data. The Government conducted the Cyber Security Regulation and Incentives Review in 2016 to consider whether we need additional regulation or incentives to boost cyber risk management in the wider economy and it showed strong justification for regulation to secure personal data.

The Government will seek to improve cyber risk management through our implementation of the EU general data protection regulation in May 2018. Its requirement to report breaches to the Information Commissioner and individuals affected, and the fines that can be issued under it, will represent a significant improvement. These will be supplemented by a number of measures to more clearly link data protection with cybersecurity, including through closer working of the Information Commissioner and the National Cyber Security Centre. However, we will not seek to pursue further general cybersecurity legislation for the wider economy as would be required by Amendment 105.

We believe that mandating the inclusion of cyber risk information in annual reports, or the introduction of legal provisions for cyber audit, is unlikely to be an effective way of encouraging large-scale change in cyber risk management. Instead, the National Cyber Security Centre plans to work with stakeholders to develop guidance for investors. The long-term aim of the organisation is to include cybersecurity in the guidance it provides to businesses on the kind of information it wants to see in an annual report, and in the reports it provides to investors each year on every listed company.

Amendment 106 is very broad in its aims and, as such, could have unintended consequences for the diverse range of grants that the Government fund each year. The supporting audit and insurance regime would be costly and challenging to enforce given the diversity of grant recipients, including those from voluntary and research communities. Furthermore, this amendment is unnecessary as many of these checks are in place as a matter of routine. The level of cybersecurity risk in grants will continue to be monitored and consideration given to how recently launched grant standards could be used to strengthen guidance in this area. This provides a far more flexible and proportionate solution than legislation.

With respect to subsection (2) of the proposed new clause in Amendment 106, the Government are already taking tangible steps to reduce the level of cybersecurity risk in their supply chain. As of October 2014, suppliers of central government contracts that involve the handling of personal data or the supply of IT products and services must demonstrate they have met the technical requirements set out as part of either the government-owned Cyber Essentials scheme or a suitable equivalent. The scheme was developed jointly with GCHQ and industry to support organisations of all sizes and across all sectors in getting a good, basic level of online security in place. In response to my noble friend Lord Arbuthnot I would observe that, as of the end of December 2016, nearly 5,500 certificates had been issued under the scheme, and we have a strategy in place to significantly increase the adoption of the scheme over the coming year. With that explanation, I hope my noble friend will withdraw his amendment.

[Lord Arbuthnot of Edrom]

My Lords, I am grateful to my noble and learned friend for his comments. From what he says I suspect that the Government are not quite there yet. However, I hope that my amendments will help to encourage them along a path of some form of regulation in this area. I suspect that the arguments my noble and learned friend used were similar to those that were first used when financial audit was suggested. However, I am grateful for what he has said. I am also particularly grateful to the noble Baroness, Lady Jones, for what she said and for the gracious way in which she said it. However, my amendments were aimed not so much at government as at business. I suspect that this will be part of a long-term campaign, so, with those words, I beg leave to withdraw the amendment.

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[Baroness Hamwee (LD)]

My Lords, perhaps I may ask a couple of questions which arise from the fact sheet on this issue. On civil registration, it says:

“The Bill establishes a framework, with appropriate safeguards, to share bulk registration information where there is a clear and compelling need”.


I wonder whether the Minister can help the Committee in understanding where that is translated into the Bill. The fact sheet also says:

“There are no intentions to share data with the private sector or for data to be used for any commercial purposes”.


It then goes on to say that,

“the powers would not permit this”.

However, I am sure that the Minister will understand my querying the words “no intentions”, because they suggest that there could be a change, and possibly one with which Parliament is not hugely involved. I am going to assume that the points made by the Delegated Powers and Regulatory Reform Committee are in the rather large pile of items that it raised and which the Government will reply to before Report, so I am referring to that only in passing, but it would be very helpful to understand how the points in the fact sheet, which is where many people would start, move over into the legislation.

[Lord Keen of Elie]

My Lords, the proposals in Chapter 2 of Part 5, which are being addressed here, will ensure that citizens are able to access future—can I have a moment to sort out my own speaking notes?

[Lord Maxton (Lab)]

While the Minister is doing that, can I ask whether this amendment covers Scotland? He is replying as the noble and learned Lord, Lord Keen of Elie. Registration of births, deaths and marriages was not introduced in Scotland until 1855 rather than 1837—I think—so does this amendment cover Scotland?

[Lord Keen of Elie]

I believe it was 1836 in England not 1837.

[Lord Maxton]

It was 1855 in Scotland.

[Lord Keen of Elie]

It does not extend to Scotland. It is a provision pertaining to England and Wales. I am obliged to the noble Lord for giving me time to find my place in my notes. It is greatly appreciated.

As I said, the proposals in Chapter 2 of Part 5 will ensure that citizens are able to access future government digital services efficiently and securely, while removing the current reliance on paper certificates. I will address the two amendments first before addressing the clause stand part aspect of this debate.

Amendment 113 would add a requirement for a civil registration official to be satisfied that the information is required by a recipient to fulfil one or more of their functions before disclosing data and also seeks to add a requirement that an individual must have given valid consent under data protection legislation prior to any disclosure of their personal data. With respect, this amendment is unnecessary because disclosure of personal data under these clauses will already be subject to the provisions of the Data Protection Act. To require explicit consent in all cases would exceed the requirements of the Data Protection Act and the purpose of this clause. Disclosure will take place without consent only if to do so would be consistent with the Data Protection Act, which governs fair disclosure. Examples of how the powers would be exercised in practice include allowing registration officials to disclose information within and across local authority boundaries in order to safeguard children. Being able to share information will ensure that children are known to the local authorities in which they reside and action can be taken to address any needs of the child or the parent. That is what lies behind this matter.

Amendment 116 seeks to amend the Births and Deaths Registration Act 1953 to introduce an electronic register for the registration of births and deaths. However, the proposed amendment to Section 25 of the 1953 Act as currently drafted does not go far enough. The legislation which provides for the registration of births and deaths is based on legislation in place in 1836—or 1837—and very little has changed to the process of registering births and deaths since then. The Act would need more amendment in order to introduce an electronic register. Moving to an electronic register would remove the requirement for hard-copy registers and the electronic register of births and deaths would be the legal record instead of the paper registers. It is certainly an area of reform that the Government are keen to take forward. However, we need more time. I reassure noble Lords that the Government will look in more detail at what changes need to be made to the Act in order to bring in this change and we will consider legislating in due course. We recognise the benefits that the noble Lord, Lord Clement-Jones, suggested could be achieved once that entire process is completed. In light of those points, I hope that the noble Lord will agree not to press that amendment.

I turn to my noble friend Lady Byford and her opposition to the clause standing part of the Bill. Unless there is a specific statutory gateway, information from the records of births, marriages, civil partnerships and deaths may not be disclosed by registration officials other than in the form of a certified copy of an entry, such as a birth or death certificate, on payment of the statutory fee. As I have indicated, the system is outdated and based on paper processes from the 19th century. This clause introduces new data-sharing powers that allow registration officials to share data from birth, death, marriage and civil partnership records with public authorities for the purposes of fulfilling their functions. However, only the minimum amount of data will be provided to enable the public authority to fulfil the function.

My noble friend asked for examples of the benefits of sharing such registration data. Being able to share data about deaths with local authorities would assist in combating housing tenancy fraud. The National Fraud Authority estimates that housing tenancy fraud costs local authorities £845 million each year. An example of this is when someone continues to live in a property following the death of the tenant even when they have no right to do so. The sharing of birth data within the local authority would assist social services, for example, if they wanted to engage with one of the parents in the interests of a child. Sharing marriage data would help to target those living together if there were a fraudulent claim to be single for the purposes of claiming benefits. Sharing death data within local authorities would help them to recover medical equipment following the death of an individual.

There are many examples where such data sharing would be of assistance. It paves the way for citizens to access government services more conveniently, efficiently and securely, for example, by removing the current reliance on paper certificates to access services. This will provide more flexibility and will modernise how government services are delivered. An example is where registration officials will be able to share data on births that have occurred in one district, but where those concerned live in a neighbouring district with no hospital. This would allow local authorities more accurately to plan the provision of health care, school planning and other local services. Being able to share death data across boundaries will also help to prevent unwanted mail being sent to the family of a deceased person.

Registration officials will be able to share registration data only with the public authorities defined in new Section 19AB of the Registration Service Act 1953. Any data sharing will of course be carried out strictly in accordance with the requirements of the Data Protection Act. The sharing of registration data will be underpinned by a statutory code of practice as required by Section 19C. One of the requirements in the code will be that the Registrar-General must personally approve any request for the sharing of large amounts of data.

Before data are shared, the code of practice requires privacy impact assessments and data-sharing agreements to be drawn up and agreed with public authorities to include such things as how data are to be used, stored and retained. Data will be able to be used only for the purpose they have been provided and retained only for as long as necessary. Data-sharing agreements will forbid the creation of a database or the linking of registration data in any way. Any breach would be reported to the Information Commissioner, who has the power to impose penalties where it is appropriate to do so. I hope that that deals with the fears expressed about the bulk use of such registration data.

[Lord Clement-Jones]

My Lords, I am not sure whether the Minister has dealt with the questions raised by my noble friend.

[Lord Keen of Elie]

I apologise for omitting to respond to the questions asked by the noble Baroness, Lady Hamwee, by reference to the fact sheet. Rather than poring over the provisions of the Bill, I will undertake to write to her pointing out the cross-reference between the terms of the fact sheet and the relevant provisions in the Bill. I will place a copy of that letter in the Library.

--- Later in debate ---

[Lord Stevenson of Balmacara]

My Lords, in an idle moment, a moment of complete frivolity, I looked up GOV.UK to check facts—I thought that would be a useful contribution to the debate. The date we have all been searching for is 1837: the General Register Office is part of Her Majesty’s Passport Office and contains records dating back to 1837. I thought that would be useful.

I beg to move Amendment 117A in my name. This stems from my period of service as chairman of a wonderful charity called StepChange, which deals with individual debt owed by ordinary people. In the time I was there—I resigned about two years ago—we had about 600,000 people a year contacting the telephone helpline or going online to try to seek solutions to their debt problems, so it is a very significant problem in British society and something we must take a great deal of care about. Most people who came to us were struggling with multiple debts; in other words, they owed money to a variety of different sources, ranging from local authorities, mobile phone companies, debt collection agencies, Revenue & Customs, payday lenders, utility companies and catalogue lenders—there is a very large number of them.

A median client would be aged about 45, female and owing about £20,000 to eight different creditors, so it is a significant problem that people get into. Within that, with a tremendous requirement now for debt advice, with lots of people struggling with debt, one worrying trend has been how bad central and local government have been in dealing with people, particularly those with multiple debts. A recent survey of about 1,000 StepChange clients found widespread aggressive enforcement from local authorities even when people were asking their authority for help. Clients were more than twice as likely to be threatened with court action or bailiffs than to be offered an affordable payment option. This is despite guidance being issued by central government about how debts should be treated.

Of course, what happens when people face strong demands, very often from central or local government, is that they tend to go to people who can lend them money quickly, probably from an existing credit line, almost certainly, until recently—but even today it is still happening—taking out a payday loan. They try to borrow more to try to pay back original debts and get themselves into a worse situation than they were before. The same survey asked clients to rate what their creditors had done to them and whether they treated them fairly or unfairly. I am afraid to say that public sector creditors came out very badly, occupying three of the top six places in the unfair treatment table. It is interesting to note that HMRC, for instance, scored no better than payday lenders, which the Government, through the FCA, have spent a lot of time trying to sort out over recent years.

That is the background of our concern. We welcome the provisions in the Bill to think again about how debts owed to the public sector are collected. In that light, these amendments are put forward for suggestion, they are probing amendments at this stage, and I hope that they will elicit a response, because it is not just StepChange, the debt charity, that has been concerned about this. Citizens Advice has also raised concern about public sector debt collection practices, finding that public sector creditors are,

“mostly out of step with financial services and utilities companies when it comes to setting affordable repayment rates, and that our clients can suffer detriment when public bodies have uncoordinated and inconsistent approaches to debt collections ... central government debt collection lags behind the higher standards expected of other creditors”.

This is focused on individuals who have problems with their debts, but of course there is a wider cost to society as a whole which, through relationship breakdown, homelessness and difficulties with maintaining concentration at work, et cetera, has been estimated at about £8 billion a year. The Bill contains clauses that relate to this and they seem to suggest that central government as a whole—but in this case HMRC—are thinking about how the data-sharing powers that are coming should be used to allow them to collect several debts at once, but also to do it in a slightly different way. I hope that is the case. We are back with our old friend, the code of practice, because what is said in the code of practice will determine whether this will work.

I have, then, four things I invite Ministers to respond to. First, Clause 45 is limited to departments that seek data-sharing powers and says only that they should “have regard to” the code of practice. This has, I think, been picked up in other amendments that we have considered today. It would be good if the code of practice were also embedded in a much stronger statutory provision, to give it real bite. We have seen examples of guidance—I mentioned one involving central government issuing guidance on council tax collection methods—but such guidance does not work, because it is non-binding and only advisory. If there is a code, it should be embedded in the statute and people affected by it should be able to refer back to it to make sure that it works properly.

Secondly, the public body itself must believe that this is the way in which it needs to operate. Within the amendments are a range of issues that central government bodies might pick up that would match the best practice in utilities, banks, credit cards and store cards—all of which have been through the cycle of trying to get money out of individuals who owe them and other people money, and have recognised that you have to deal with people with multiple debts in a completely different way from those who just owe money directly. That is gradually changing the way people operate. There is further to go, but it is a lesson that should be learned. I hope that the codes can be adapted to reflect that.

Thirdly—this may be too much of an ask, but it should be recognised—this Bill applies only to public bodies, and their creditors, when they are seeking to use the data-sharing powers. The problem is, of course, wider than the data-sharing powers. Problems with central and local government debt collections are widespread: practices need to be reformed and this is not likely to relate only to places where data sharing is used. The Government should think ahead about this and try to set out an understanding for all their agencies that poor debt-collection practices can harm the rate at which they get their money back and the time it takes, and it will also harm the financially vulnerable people. Taking account of that across all their practices would be a very good thing.

These amendments, therefore, try to raise those points, but there is one other thing that the Government should try to do, which is in the first amendment. It is to take a lesson from Scotland—I am sure that the noble and learned Lord from Scotland will wish to pick this up and think harder about it—where, when you have a private or a public debt and seek guidance from the state agency that operates that scheme, you are given statutory protection from excess charges and your interest rates are frozen, providing you stick to your debt repayment plan. That means that people get a breathing space, time to organise their finances, think about their budgets and work out what they are going to do, without the terrible pressure from those who are owed money to start repaying it. It is only when all those issues have been brought together, and an agreement reached between the creditors and the agency, that repayment begins. That has a very much higher rate of success than any other scheme. England lags way behind on this, and it would be no skin off the Treasury’s nose if it took a leaf out of the Scottish Government’s book and brought in their procedures—with a statutory breathing space that gave some hope to people who want to repay their debts but cannot do so because the practices are not as good.

[Lord Keen of Elie]

My Lords, I acknowledge the point made by the noble Lord, Lord Stevenson, that this is a significant issue, and I understand that this is a probing amendment to allow us to consider some of the wider issues that he has touched on in the debate.

Amendment 117A seeks to include in the Bill an additional purpose: to enable debt information to be shared under the powers provided by Clause 41. It seeks to state explicitly that debt data can be disclosed,

“for the purpose of helping individuals to manage their debts”.

There is also a reference to the breathing space, and I will come back to that point in a moment in response to the questions posed by the noble Lord.

In the first instance, we would venture that the amendment is not necessary. The provisions as drafted enable information to be shared,

“for the purposes of the taking of action in connection with debt owed to”,

a public authority or the Crown. This includes but is not limited to, for example, identifying or collecting debt. The provision is sufficiently broad to enable sharing for the purpose set out in this amendment. That is the position of the Government. The Government are considering the recommendations that have been made following work to look into the merits of introducing a breathing space for customers, which we are aware is available in other jurisdictions. While the Government are considering these recommendations, it would be premature to incorporate a reference to this initiative in the Bill at this time. I hope the noble Lord will accept that the matter is being looked at.

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[Baroness O'Neill of Bengarve (CB)]

My Lords, I rise briefly to support this amendment. There seems to be something quite perverse in obstructing the access of the Statistics Board to datasets that are in the hands of other public bodies. That is a very simplified account, but it is a curious place in which to have an obstacle. I hope that the Minister can consider this clause very seriously.

[Lord Keen of Elie]

I am obliged to the noble Baronesses for their interest in this part of the Bill. As your Lordships will be aware, Clause 68 gives the UK Statistics Authority the powers to access important data needed to produce official statistics to support decision-making.

On Amendment 199, new Section 45B gives UKSA a right of access to information held by Crown bodies. A Crown body must respond in writing to a formal notice issued by the UK Statistics Authority and explain any refusal to give the authority information. If the Crown body’s explanation is inadequate or it fails to respond or comply, the UK Statistics Authority may lay the request and any response before the relevant legislature. A Crown body must therefore either comply with the notice or explain its refusal in writing. Where the Statistics Authority puts that correspondence before Parliament, then Parliament can judge the body’s actions openly and transparently. We consider that this is the right approach, creating effective, proportionate accountability and transparency.

Of course, my noble friend Lady Byford would argue that the amendment is a more effective means of requiring a Crown body to give the Statistics Authority the information. We cannot accept that it is either necessary or desirable. The Statistics Authority is part of the Crown, as are government departments. As my noble friend anticipated, it would be extremely novel, and possibly unprecedented, to legislate to compel one part of the Crown to obey another. Even the Health and Safety at Work etc. Act 1974 excludes the Crown from being subject to enforcement measures such as prosecution, instead providing long-standing structures to help departments to work with each other administratively. In this context, new Section 45B strikes the right balance. I hope that explanation reassures my noble friend.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

My Lords I declare my interest as chair of the National Mental Capacity Forum, and in that role I have been working closely with the Office of the Public Guardian.

For some time the Public Guardian has wanted to move away from the wet signature requirement for the creation of lasting power of attorney for both health and welfare, and property and financial affairs decisions, as laid out in the Mental Capacity Act 2005. This amendment would allow that process to be purely electronic and carried out online, with the safeguards it outlines. A digital process should now be secure given the advances in technology since the original provision was made, and the amendment would simply allow the Secretary of State to make appropriate regulations rather than creating the process.

As the hour is late I am inclined to ask the Minister, if he has any reservations about this amendment and the powers it would give to the Secretary of State, to curtail the debate by meeting with me and the Public Guardian before Report. However, I am rather pre-empting the Minister’s decision. If he decides to accept my amendment, that would be just wonderful. I beg to move.

[Lord Keen of Elie]

My Lords, in view of the hour, it occurs to me that it would be appropriate to give a lengthy and detailed analysis of powers of attorney, and, indeed, to take us back to the Powers of Attorney Act 1971 and the subsequent developments of the law. Nevertheless, and despite the enthusiasm from the Opposition Benches, I am perfectly happy to accept the kind invitation advanced by the noble Baroness, Lady Finlay, and to meet with her to explain the Government’s position on this matter. I would be obliged if she could at this stage withdraw the amendment.

[Baroness Finlay of Llandaff]

My Lords, in light of the forthcoming meeting—which I am sure the Public Guardian will wish to join—I beg leave to withdraw the amendment.

Arbitration and Mediation Services (Equality) Bill [HL]

Lord Keen of Elie Excerpts

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I join all sides of the House in putting on the record my admiration not only for the determination of the noble Baroness, Lady Cox, but for the courage of the women to whom she has listened. Without their courage and that of others, we would not be debating this sensitive problem today. I understand the desire of the noble Baroness and her tireless fight to bring this matter out of the shadows and into the light of day. The Government are absolutely clear: we share the concerns raised by noble Lords in the debate that people can suffer because of decisions made by sharia councils in particular, or because the families and communities of coerced persons prevent them from understanding that they are as equal before the law as any Member of this House. These are concerns that the Government take very seriously. We know that any effective proposals to address the problem must come from thoroughly understanding its complexities and source. That is why the Prime Minister, in her previous role as Home Secretary, launched the full, independent sharia review last year, chaired by Professor Mona Siddiqui. That is also why the Government, on the broader problem of opportunity and integration, of which disadvantage to Muslim women is part, commissioned the independent review by Dame Louise Casey, who reported last month. Your Lordships will see that the Government are committed to shining a light on this problem.

Your Lordships will know, too, that women’s experiences of sharia councils and the issue of unregistered marriage are central to the sharia review. The Casey report has framed concerns about these in the broader narrative about how people with different backgrounds can be part of a cohesive society—a point touched on by many noble Lords in the debate. The report found that British Muslims overwhelmingly had a strong sense of belonging to Britain. We should not lose sight of that larger picture.

The Government are absolutely clear too that the authority of the courts in England and Wales is intact. There is and will be no parallel legal system. People are free to live their own lives according to their religious principles and the Government will not prevent them doing so. What there is in sharia and other religious councils is a means for people to seek decisions that will carry weight with their communities. This entire process should be voluntary and free from any form of force, but we have heard today of instances in which it is not. What for some is religious freedom is for others a source of injustice. That is the key to the problem before us. By its nature, of course, this is a problem that is not amenable to any easy solution.

Your Lordships have raised many of the issues that were put to Dame Louise relating to sharia councils and the reasons why some women may have recourse to them. We should always acknowledge that there are Muslim women for whom a religious pronouncement of divorce is important and who freely and knowledgeably choose to go to a sharia council, as followers of other religions may do with their own councils. It is important to acknowledge this: as I have said, the Government have no wish to curb religious freedom. None the less, it is of serious concern to us where women may have recourse to sharia councils because of coercion or lack of awareness of their rights. We appreciate that behind much of this are also the problems of lack of integration, of understanding, of language skills and sometimes of education. The source of that is very much lack of opportunity. The Casey report frames these issues in the contexts of integration, but also, crucially, of opportunity and understanding. That is a context we should never lose sight of.

I assure the House that the Government are taking the findings of the report extremely seriously. Like my right honourable friend the Secretary of State for Communities and Local Government in another place, however, I do not wish to say anything that might prejudge our response to the Casey report in spring this year or, for that matter, to the findings of the independent sharia review.

With that in mind, I turn to the measures in the Bill. As noble Lords are aware, sharia councils are not part of the court system in this country. I noted references to sharia courts on occasion in the debate. We do not recognise the existence of sharia courts. We understand the danger that some sharia councils may purport to perform as courts or hold themselves out as courts, but they have no legal means of enforcing their decisions. Furthermore, the evidence at this stage is that very few sharia councils will carry out arbitration, and then in only very limited circumstances. We appreciate, none the less, that there have been concerns about arbitration by sharia councils in some instances, or about their straying into matters that only a court can adjudicate on. I assure the House that the Government are taking those concerns on board and view them very seriously.

The Government do not consider it necessary to amend the Equality Act 2010, as Part 1 of the Bill proposes, so that it applies to arbitral tribunals. Section 33 of the Arbitration Act 1996 already imposes a duty on arbitral tribunals to act fairly and impartially, and awards can be challenged in the court if this duty is breached or there is any other serious irregularity. Section 142 of the Equality Act 2010 already makes contracts unenforceable if they treat someone in a discriminatory way. That would apply to contracts as a result of mediations that were discriminatory, including any that might be facilitated by religious councils.

The Government still consider that amending the public sector equality duty is neither the best way to address this issue nor an appropriate use of the duty. I am the Government. The duty is broad—deliberately so—and the Government remain concerned that this breadth of application could be undermined if specific requirements were to be separately identified within it.

Part 2 proposes amendments to the Arbitration Act 1996. The existing law already imposes on tribunals a mandatory duty to act fairly and impartially. Where the family court in England and Wales has discretionary powers to make orders, such as in relation to making arrangements for children following the breakdown of a parental relationship, it is not possible to enter into an agreement to be bound by the outcome of an arbitration process, as a court could always override that outcome.

Part 3 proposes amendments to the Family Law Act 1996. It is, however, already the case that contracts cannot be enforced if they are made under duress. In family law cases, a judge will not make an order based on a negotiated agreement unless satisfied that there was genuine consent. Because the family court already has the power to set aside such orders, the Government’s view remains that the amendments proposed are unnecessary in this context.

The Government do not lightly create new offences. Before we might have cause to consider the new criminal offence of falsely claiming legal jurisdiction proposed in Part 4, we would need to consult and to hear compelling evidence that it was genuinely necessary. We would also wish to await the findings of the independent sharia review.

I appreciate that the noble Baroness, Lady Cox, may be disheartened that she has not persuaded the Government that her Bill would be necessary or effective. Our reservations about it remain.

[Lord Carlile of Berriew]

The noble and learned Lord said that a new criminal offence is unnecessary. Does he not agree that the criminal offence of holding oneself out as a medical practitioner has been extraordinarily effective? Does he not think that there is an extremely strong case not for doing nothing but for providing a similar sort of offence for those who hold themselves out to be a court or tribunal?

[Lord Keen of Elie]

There are, of course, provisions already in respect of that. We do not propose to do nothing, as I seek and have sought to explain.

As I said, our reservations about the Bill remain. It would be unfortunate for the Government to rush into any legislative change that did not, in the end, turn around the experience of the women whom the noble Baroness seeks to champion.

[Lord Cormack]

A few moments ago my noble and learned friend gave us a variation on “l’etat c’est moi”. Having listened to the debate, which I trust he has, and having heard persuasive speeches from all parts of the House, will he at least, in his capacity as the Government, which he has proclaimed to us all, agree to meet all of us who have spoken in the debate and have further discussions?

[Lord Keen of Elie]

I am perfectly prepared, as I represent the Government at the Dispatch Box, to take forward further discussions on this matter. Those discussions could most constructively be held once we have the sharia review available and once we have our response to the Casey report in the spring. The noble Lord might want to contemplate further discussion in that context. We are not seeking to delay; we are seeking to get this right.

We have not left the matter there, either. I do not wish to detract from the immediate focus of today’s debate, but there are other areas in which we are taking matters forward. Many noble Lords have spoken on the issues of understanding, of education and of the appreciation of rights which underpin many of the difficulties that Muslim women face in the context of sharia councils. We are now spending substantial amounts each year on assisting people to integrate into our society, particularly by arranging for the teaching of English. That is but one step, I appreciate—but it is a step in the right direction.

Turning again to the issue of unregistered religious marriage that underlies much of the recourse that women have to sharia councils, I note that there is no consensus on the issue—or, indeed, on sharia councils themselves—even among Muslim women’s groups. Several divergent suggestions have been put forward on the matter of marriage. One, for example, suggests regarding Islamic marriages as void, so that parties can seek financial remedies. Another suggests requiring religious ceremonies to be preceded by a civil ceremony, as in some other jurisdictions. The Casey report emphasised the importance of registration of marriage. All these issues will have to be considered.

The noble Baroness, Lady Cox, moved an amendment a few months ago in Committee on the Policing and Crime Bill. It required celebrants of religious marriages to comply with marriage law and to register the marriage, as well as introducing a criminal offence of failing to meet the requirements. However, as my noble friend Lady Chisholm said in the debate, it is unclear how many unregistered marriages would continue. Marriage is not a straightforward area of law, as these divergent suggestions show, and particular difficulties arise when women are unaware that their marriage has no legal effect.

My noble friend indicated that the Government will consider unregistered religious marriages in light of the sharia review which is expected to report this year. That remains the case. It is clear from Dame Louise Casey’s report that integration, education and understanding are significant in how we address the issues we have been debating today—many noble Lords acknowledged that. We await the Government’s response to the report so that we can take this matter forward.

I turn to particular points made by noble Lords in the debate. The noble Baroness, Lady Donaghy, referred to the continuing fight for women’s equality. I do not intend to engage in a fight with the noble and doughty Baroness, but I see women’s equality—indeed, all aspects of equality—as more than just a goal: it is a journey. As any wise traveller knows, when you are on a journey you constantly and regularly check your progress, your destination and the obstacles in your way. The spikier parts of inequality have been addressed, but the issue has not been resolved, and it will be a continuing journey.

On the question of the independent review, I indicated that that will report this year. As for the Law Commission, we are considering its report in conjunction with that of Dame Louise Casey. The noble and learned Lord, Lord Mackay of Clashfern, among many noble Lords, referred to the subtle pressures that are brought to bear on women in the present context and the need to identify the reality of consent. Again, that goes back to the theme of education and understanding, rather than sharp-end legislation. The noble and right reverend Lord, Lord Carey of Clifton, talked about the need for sharia courts to comply with civil law. I do not even recognise the concept of a sharia court, but I take him to refer to sharia councils—and, yes, they are bound by the rule of law, and the law is there to correct abuse.

The noble Lord, Lord Anderson, assured us that he agreed with himself—I am sure we all take comfort from that. He talked about the judiciary making women aware of what their rights are. Yes, that is important, but it should be more than just the judiciary: we should all be making an effort, whether it be central government, local government, social services or police forces, to make women aware of their true rights and what their families’ true obligations amount to.

The noble Lord, Lord Carlile of Berriew, whom I was pleased to hear from behind me—if perhaps a little too far to the right—also talked about the need to intervene in circumstances where there is an abuse of alternative dispute resolution. Such alternative dispute resolution, as many noble Lords said, is to be welcomed, but it must operate within the law, and we must make that clear.

A question was raised about the extent, if any, of central government funding to sharia courts. Again, I say that I do not recognise the existence of sharia courts. I am not aware of UK government funding to sharia councils. It is possible that there is funding for particular projects carried out by such councils. Although I do not have such details to hand, I undertake to write to my noble friend Lord Bridgeman to confirm such details as we have of any alleged UK funding for sharia councils.

Finally, the noble Lord, Lord Kennedy, spoke of all those rights that we enjoy, or that we are at least entitled to enjoy, within the United Kingdom. But those rights also include the right to religious freedom. That is why it is so important to ensure that we do not upset a delicate balance between rights and obligations. That is why the Government will look at this matter with great care in light of the sharia review, the Casey report and the recommendations of the Law Commission.

[Lord Blencathra]

I think my noble and learned friend has acknowledged that the cases quoted by all noble Lords who have spoken are real and genuine—there is grave injustice there—but he has shot down every suggestion in the noble Baroness’s Bill to deal with them—and he has just said that the Government will look “with great care” following the sharia review. I hope your Lordships will forgive me for being cynical, but that sounds like kicking this into the long grass again. Looking at it “with great care” sounds like rather slow motion. If the sharia review suggests there is a problem, can we have a guarantee that there will be government legislation sooner rather than later?

[Lord Keen of Elie]

The noble Lord will appreciate that, even at the Dispatch Box, I cannot give guarantees of government legislation.

[Lord Carlile of Berriew]

But you are the Government.

[Lord Keen of Elie]

That is beyond my pay grade. However, I challenge the suggestion that I have sought to shoot down the various proposals made by the noble Baroness, Lady Cox. I acknowledge the importance of the issue that she has brought before this House. I acknowledge the importance of us being able to address these issues openly and effectively. I acknowledge the importance of considering whether all persons within the United Kingdom—and they are not required to be British citizens for this purpose—have the protections of the rule of law in the face of coercion or threat, even if it is supposedly religious-based. Therefore, I do not accept that I have sought to shoot down the proposals put forward by the noble Baroness, Lady Cox.

There are aspects of the Bill which we would say are legislatively unnecessary because of existing legislation. There are aspects of the Bill which we would consider need to be thought through with greater care. There are issues here that should be considered in light of the sharia review, which is coming out this year, and in light of the report from Dame Louise Casey, which we received in December, just one month ago—and we intend to do that. We do not intend to head in the direction of any long grass in that context.

[Lord Anderson of Swansea]

We have not heard any mention of the principles on which the Government rest. Do they at least accept in principle that to give less weight to a woman in any adjudication is wrong?

[Lord Keen of Elie]

Do I need to repeat that? With the greatest of respect, this Government and certainly I would never consider that there was any basis for such a proposition. I acknowledge the need for equality not just of gender but in all respects. This Government acknowledge the importance of equality not just in respect of gender but in all respects. But in pursuing it we must have regard to the rights of individuals to perform their own religious functions in a way they see fit. But above all of this stands the rule of law and we remain determined to ensure that those who purport to carry out religious functions do so in accordance with the rule of law and with respect for all individuals, whatever their gender or ethnic background.

I assure the noble Baroness that this Government are concerned about the issues that have been raised, understand the seriousness of the issues that have been raised and appreciate the contributions that have been made by your Lordships’ House in addressing these points. I therefore express to her and all noble Lords who have spoken today my sincere appreciation of their contributions on what is not only an important issue but a complex one.

[Lord Kennedy of Southwark]

We have all heard the Minister’s concern, his appreciation and everything else—but can he just tell us what is going to happen next for the Government?

[Lord Keen of Elie]

My Lords, I thought that I had already explained it. Lest the noble Lord was not in the Chamber at that stage, we are considering the Casey report, which was received in December of last year; we are awaiting the sharia review; and we will bring these materials together in order that we can establish an informed view of the extent of the problem and what the potential solutions may be.

[Lord Kennedy of Southwark]

I thank the Minister for that. I am very worried now when I hear the word “review”. I tabled a couple of Written Questions asking what “review” means when it is mentioned at the Dispatch Box. I was told in a Written Answer from the Government that there is no definition of a review. The Minister will appreciate that when I hear that word I am very worried about what it actually means. I hear what the Minister says but, equally, I hope that he has heard the concern from all round the House in this debate.

[Lord Keen of Elie]

I have of course heard the concerns that underpin this Private Member’s Bill. I have of course also understood the depth of feeling and the depth of concern that there is to see these problems addressed.

Rehabilitation of Offenders (Amendment) Bill [HL]

Lord Keen of Elie Excerpts

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I thank the noble Lord, Lord Ramsbotham, for bringing this matter back for debate in the House today and congratulate the noble Baroness, Lady Chakrabarti, on what I think is her first contribution to a Bill before this House. The Government share the noble Lord’s support for individuals with criminal records who wish to turn their lives around, and securing a job is often the first step on that journey. The Rehabilitation of Offenders Act 1974 exists primarily to support the rehabilitation into employment of reformed offenders who have stayed on the right side of the law.

Perhaps I may provide a little background to the 1974 Act and how it can support ex-offenders. Under the Act, following a specified period of time which varies according to the disposal administered or sentence passed, most convictions resulting in custodial sentences of up to and including four years become spent. Where a conviction has become spent, the offender is treated as rehabilitated in respect of that offence and is not obliged to declare it for most purposes. This could include when applying for employment, but also when applying for insurance cover or a bank loan. However, the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 lists areas of activity and proceedings which are exceptions to the 1974 Act. This means that the employer or some other relevant body is entitled to ask for and take into account certain details of a person’s spent cautions and convictions. These activities are usually concerned with working with children or other people in vulnerable circumstances, or where sensitive information is handled and there is a risk to the public of an abuse of trust. For example, the exceptions order covers teachers, prison staff, healthcare professionals and employees of the Crown Prosecution Service.

Where an occupation is listed on the exceptions order, an employer is eligible for a standard or enhanced Disclosure and Barring Service check that will contain details of certain spent and unspent convictions for the individual in question. Such DBS checks, as they are known, fall under the responsibilities of the Home Office. However, I would like to respond to certain observations made by the noble Lord, Lord Ramsbotham. Thorough guidance on the DBS application process, eligibility for checks, and the disputes mechanism are available on the DBS website. It also includes a new electronic eligibility tool which can help individuals to check whether a particular role is eligible for a DBS check, so that information is publicly available. The DBS checks are submitted via a registered body which is responsible for confirming that a particular role is eligible for a DBS check, and a statutory code of practice is already in place setting out the obligations that apply to those registered bodies. Should an applicant feel that they have been asked to undertake a DBS check in relation to a role that is not eligible, they can ask the DBS to investigate it. The DBS provides support and guidance for registered bodies and will take steps to suspend, and where necessary cancel, registered bodies that do not comply with the code of practice. So the DBS seeks to assure people that registered bodies are compliant with the existing code of practice.

The noble Baroness, Lady Chakrabarti, referred to the 1974 Act as outdated but as the noble Lord, Lord McNally, pointed out, it was in fact reformed and amended by the rehabilitation provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came into force in March 2014. As a consequence, a conviction resulting in a custodial sentence of four years or less, unless it is a public protection sentence, may now become spent. Previously, only convictions resulting in custodial sentences of 13 months or less could become spent, so a material change has been made. At the same time the coalition Government also reduced most rehabilitation periods. The present Government believe that these reforms are proportionate and that we have struck the correct balance between protecting the public and helping ex-offenders to put their criminal pasts behind them.

I turn to the specific proposals the noble Lord included in the Bill. First, we do not consider the proposals to amend the rehabilitation periods for offences necessary. It does not appear that the proposed rehabilitation periods take account of the 2014 reforms I just mentioned. As such, the Bill attempts to amend repealed legislation.

The Government have also introduced additional reforms to help improve the opportunities available to those with criminal records. In response to a Court of Appeal judgment in May 2013 we amended the exceptions order to the Act to enable old and minor convictions, cautions, reprimands and warnings to be filtered so that they do not automatically appear on a criminal record certificate. It remains the case that cautions and convictions for specified sexual and violent offences, and certain other offences relating to safeguarding vulnerable people, continue to be subject to disclosure, as do the most serious convictions for any offence that resulted in custodial sentences.

For other non-specified offences, however, cautions received as an adult do not need to be disclosed after a period of six years; for a conviction it is 11 years. In other words they are “filtered” out from the relevant certificates. This is dependent on the offence being the only conviction on an individual’s record. This addresses a point made by the noble Baroness, Lady Bakewell, on someone committing an offence in their youth and then finding at the age of 60 that this is necessarily disclosed. There is a filtering policy and process in place that means that such a minor offence that she alluded to cannot be taken into account by an employer. These periods are halved when the individual concerned was aged under 18 years at the time of the relevant offence. Again, youth offending is addressed in that context.

The second area addressed by the noble Lord’s Bill is the specific rehabilitation periods. The Bill would allow community orders to become spent after 12 months or, in the case of young offenders, six months. Such orders may last for up to three years, so this could result in many such orders becoming spent before they have been served. I am sure that was the intention. It may be that the intention is to apply these periods after the relevant period of three years has expired. Again, there is an issue there. Community orders are available for almost all imprisonable offences—obviously in appropriate cases—and it may not always be appropriate for offences resulting in community disposals to become non-disclosable as quickly as the Bill suggests.

As I mentioned, the Government have recently reformed this legislation. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced reforms that commenced in 2014. The Government recognised in the interim that certain forms of sentencing practice had become more severe, as suggested by the noble Baroness, Lady Chakrabarti, and that as a consequence fewer ex-offenders would benefit from the original provisions of the 1974 Act. That is why the revised rehabilitation periods take account of the punitive weight of the disposal, and hence the likely seriousness of the offending. They also take account of the reoffending data, which show the length of time for which people are most at risk of reoffending. We consider that those amendments, which were accepted by Parliament, bring about the necessary proportionality to the existing legislation.

Thirdly, the noble Lord’s Bill seeks to allow determinate custodial sentences of any length to become spent. I recognise that he would like the current legislation to go further by enabling determinate custodial sentences of any length to become spent, but the Government consider that the present amendments to the Act that came into force in 2014 achieve the correct balance between rehabilitation of offenders and public protection. This is a two-sided coin and these issues have to be balanced. We do not feel there is a case for the law to go further at this stage.

Reference is also made in the Bill to the service justice system. Officials in the Ministry of Defence have highlighted a number of inaccuracies in the draft Bill from an Armed Forces perspective. There are out-of-date references to the service justice system, in that the Bill refers to the Army Act 1955, the RAF Act 1955 and the Navy Discipline Act 1975.

[Lord Ramsbotham]

Before the Minister goes on, I mentioned that I had met with the noble Earl, Lord Howe, and discussed this, so I know that they are there. They were not corrected by me but I know what they are.

[Lord Keen of Elie]

I am obliged that the noble Lord knows what they are; I wanted to advise the rest of the House, since other noble Lords may not be as familiar with these matters as the noble Lord has become following his discussions with my noble friend Lord Howe. I am concerned with the underlying thrust of the noble Lord’s Bill, not with matters of minor detail, and I quite appreciate that in the context of a Private Member’s Bill it may often be of assistance to have discussions about how apparently repealed legislation can be removed from a Bill and the Bill improved. I appreciate that. I am not attempting to make some ad hominem observation or criticism of the noble Lord at all; I just want to underline that the proposals made regarding the Armed Forces are skewed.

The point I was coming to is that the Armed Forces Act 2006 removed many forms of disposal that were previously used by the Armed Forces. In fact, the reforms to the Rehabilitation of Offenders Act in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have been adopted by the Armed Forces, so we have the same issues arising both for the Armed Forces and elsewhere.

In summary, the Government understand the noble Lord’s concerns and we are, of course, committed to helping ex-offenders who wish to make a fresh start and put their criminal history behind them. We are desperately anxious to ensure that people do not simply leave the prison gate one day and return another. Despite this, we do not support the noble Lord’s Bill, given the reasons I have already outlined. I note the noble Lord’s views, I understand them and I would welcome the opportunity to engage further with him about how we can increase the support that is available to ex-offenders. We have already made some progress in this area.

I acknowledge that these matters are all interconnected. Rehabilitation, disclosure, opportunity for education within prison, opportunity for employment as people go through the gate from prison—all these things are linked. Since 2016, we have been running a campaign to encourage more businesses to provide training and work opportunities for offenders and ex-offenders. This has been carried out in close collaboration with the Department for Work and Pensions See Potential campaign. The noble Lord, Lord McNally, cited a number of instances where employers have come forward. This underlines the point made by the noble Lord, Lord Berkeley, that our prison system has to provide hope and opportunity, not just punishment.

The present campaign emphasises the general advantage to society of securing employment for ex-offenders and thereby reducing reoffending and unemployment. I have other examples, further to those mentioned by the noble Lord, Lord McNally. Amey, the large engineering firm, is now expressly training offenders and then recruiting ex-offenders into its workforce. Bounce Back is a construction training organisation that employs people on release from prison and, indeed, is now training them in construction skills during their period of imprisonment—albeit some prison governors have become slightly concerned at the sight of prisoners erecting scaffolding in the prison yard. It is important that such skills are made available. I understand the challenges on the present prison estate, which is why that, too, is being addressed at the present time. It is also why we have sought to give further responsibility to individual prison governors to determine how they take forward issues of prison education and prison education funding within their own institutions in order to secure the best outcomes.

It is our hope, now that the matter of education has moved from the Department for Education to the Ministry of Justice, that it can be expanded and improved within the prison estate. But, of course, expanding opportunity within the prison estate can be done only on the foundations of an improved prison estate itself. That is why the Government have made such a commitment to improving the physical prison estate in order to achieve greater and better results so far as recidivism is concerned, so far as opportunity is concerned and so far as the future lives of former offenders are concerned.

We are concerned to turn lives around and we do not wish to see them turned around and back to prison. We wish to see people given the opportunity for employment, given the opportunity for education and given the opportunity to change their lives. At this time we do not consider that the proposals of the Bill are appropriate. Nevertheless, I thank the noble Lord, and indeed all noble Lords, for their contributions to this debate.

[Lord Ramsbotham]

My Lords, I thank all those who have taken part. In particular I thank the noble Baroness, Lady Chakrabarti, for her kind words, and welcome her to her first appearance on the Front Bench, which I should have done beforehand. Over the years I am sure that many of us came to welcome the briefs that were provided from Liberty when she was directing that organisation. We hope that that tradition will continue and we look forward to many contributions from her in her current position.

I have to say that I am extremely disappointed by the Minister’s response. When I represented the Bill as having been in close contact with a number of organisations—particularly Unlock, of which I am president, which is the national association of ex-offenders and therefore in touch with the difficulties that they are experiencing day after day—they did not put their concerns about the Bill lightly. As I said, these organisations and many of the ex-offenders do not understand all the conditions. The Minister may have mentioned that the DBS had a website, and so on. How many of them have access to that? I also said that employers did not understand, which was why there were so many ineligible requests for disclosure being made by employers. I made a particular plea for a mechanism to deal with that ineligibility, which the Minister did not answer.

[Lord Keen of Elie]

With great respect to the noble Lord, I pointed out that applications for DBS checks have to be made through a registered body, and that those registered bodies are subject to a published code of practice.

[Lord Ramsbotham]

But I remind the Minister that that is not happening. Even though there is the possibility of prosecuting people for making wrong approaches, it has never happened because the DBS says that it is not an enforcement body. Therefore, there is something missing.

I am very glad for the support for my proposal around the House. What I am suggesting is that in the context of the White Paper, it would be sensible for the Government to look at all aspects of resettlement, including this one. My offer to the Minister is that all those who have raised problems on the outside are more than willing to take part in that process. I hope that their evidence will not be taken lightly, because it has been drawn up over many years. As the noble Lord, Lord McNally, said, the list in Section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act, in response to the two consultations, Breaking the Cycle and Breaking the Circle, was all that the coalition Government could get through. There were many others—and, indeed, are many others—and some of them have been lying dormant since 2002. It is time that they were brought forward.

As I gave notice, I intend to table amendments in Committee. In the interim, I hope that the Minister will reconsider his rejection of what is on offer, because the issue is far too serious to be let go with the prospect of annual Bills and annual making progress on small points.

Assisted Dying: Legislation

Lord Keen of Elie Excerpts

Monday 16th January 2017 Lords Chamber

[Baroness Meacher]

To ask Her Majesty’s Government whether they have any plans to legalise assisted dying for terminally ill capacitous adults, with appropriate safeguards.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the short Answer to the Question is no. Like previous Governments, we have always made it clear that such legislation is a matter for Parliament, not the Government. When the other House considered a Bill to legalise assisted dying in September 2015, it rejected it by 330 votes to 118.

[Baroness Meacher (CB)]

My Lords, I thank the Minister for that reply. As he indicated, there has never been a Government-supported Bill on this issue. The Minister will be aware of Noel Conway, a terminally ill mentally capacitous patient who is taking his case to the High Court and, no doubt, ultimately to the Supreme Court. Noel is challenging the current law, which denies him his fundamental human right, when his suffering becomes unbearable, to have help to achieve a dignified death. Does the Minister agree with the 82% of the population and the 86% of disabled people who support Mr Conway and want a change in the law so that when their turn comes to face death, they can live their last months in peace, safe in the knowledge that if their suffering becomes unbearable, they can have professional help to end it? Will the Minister seek the support of his colleagues for an ethical Bill along these lines in the future?

[Lord Keen of Elie]

My Lords, it remains the Government’s view that any change to the law in this area is an issue of individual conscience and a matter for Parliament to decide, rather than one for government policy. I am aware of the case of Noel Conway. As it is now in court, it would not be appropriate for me to comment on the circumstances of that case.

[Lord Ribeiro (Con)]

My Lords, this subject has been debated in this House on many occasions and, as my noble and learned friend said, has been rejected. Should it ever be considered again, it is important that the medical profession be excluded. The majority of doctors do not wish to be associated with taking life. Their responsibility is to save lives. While it is possible that there are those who might volunteer to undertake such a task, it is important that it should not be legislated that the majority of doctors are required to undertake it.

[Lord Keen of Elie]

I note what the noble Lord has said and understand the reasoning behind his observations. I can reiterate only that this Government do not intend at this time to legislate in respect of this matter.

[Lord Watts (Lab)]

My Lords, the Government may be aware that I have had to watch both my late wife and my father die a lingering death. Can I suggest that the Government need to accept responsibility for this matter? They should not duck the decision to give people the opportunity to make this important decision about how they die.

[Lord Keen of Elie]

Again, I can understand the noble Lord’s interest and concern in respect of this matter but I would observe that Parliament has twice addressed this issue in the recent past and has determined not to relax the provisions of Section 2 of the Suicide Act.

[Baroness Campbell of Surbiton (CB)]

My Lords, is the Minister aware that the campaign to legalise assisted suicide or assisted dying is not supported by one single organisation for people with progressive conditions, including the motor neurone disease organisation and the MS Trust, the very people who would be the main beneficiaries of assisted dying, and that growing numbers of disabled people and their organisations are campaigning against such a Bill because they feel that it is desperately unsafe?

[Lord Keen of Elie]

I entirely understand the noble Baroness’s observations in this context. The whole question of risk associated with such legislation was addressed by the Supreme Court when it opined in 2014 in the case of Nicklinson and Lamb. The President of the Supreme Court and Lord Sumption both observed that the data on risk were plainly way short of establishing that there was no risk in such legislation. Lord Sumption went on to observe that there were further societies engaged in this area which had clear reservations about the development of any legislation on this matter.

[Lord Dholakia (LD)]

My Lords, the Minister will be aware that the CPS updated its policy in cases of assisted suicide in February 2010 and in October 2014. Whereas I well understand the reluctance to change any particular legislation, will the Minister consider in consultation with his colleagues and the CPS what further reforms are necessary in relation to the CPS policy on assisted dying?

[Lord Keen of Elie]

My Lords, the matter of CPS policy must be left to the CPS to determine independently of Parliament. It is not for government to dictate what that policy, which is regularly reviewed, should be. For example, in the period from 2009 to 2016 the very large majority of cases referred to the CPS were not proceeded with in the context of prosecution.

[Lord McColl of Dulwich (Con)]

My Lords, does the Minister agree that we have to be very chary of these surveys that support the subject in hand? For instance, one survey stated that 96% of the British people wished for a pain-free death. Does that not leave us wondering what the other 4% wanted?

[Lord Keen of Elie]

My Lords, it may be that the other 4% were not referring to themselves. Nevertheless, it is of course important that any such surveys should be carried out rigorously and by reference to defined terms, otherwise their results can be misleading.

[Lord Winston (Lab)]

My Lords, are the Government concerned that in an overburdened health service with a large number of old people, there is a considerable risk to the attitudes of healthcare staff within the NHS?

[Lord Keen of Elie]

My Lords, I do not believe that any challenges faced by our health staff in hospitals will alter their view as to issues of life and death. I do not believe that for one moment.

[Lord Dobbs (Con)]

My Lords, the Supreme Court judgment in 2014 that the Minister quoted a moment ago, among other things, implied very strongly that the current law is incompatible with human rights legislation and hinted that Parliament should resolve this issue, otherwise the courts themselves would. If there is an incompatibility between the blanket ban on assisted dying and human rights legislation, should it not be resolved in Parliament rather than by judges?

[Lord Keen of Elie]

My Lords, in the case of Nicklinson, the Supreme Court determined by a majority of seven to two that there should be no declaration of incompatibility with the convention on human rights. It did of course observe that this was a matter that should be looked at by Parliament, and since that judgment, it has been looked at by Parliament on two distinct and separate occasions. Parliament has expressed its views on this matter.

Courts and Tribunals: Administration Charges

Lord Keen of Elie Excerpts

Monday 16th January 2017 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Gardner, for securing today’s debate on this important subject and to noble Lords for the valuable contributions they have made to the debate.

The Government are committed to ensuring that the justice system continues to be accessible to all, that it deals with disputes fairly and justly, and that it continues to work for all its users. A number of noble Lords, including the noble Baroness, Lady Gardner, referred to the matter of employment tribunals and employment tribunal fees. As the noble Lord, Lord Beecham, noted in his observations, that has been the subject of a review at the instance of the Government. That review, which was essentially to address the issue of applications in light of the fee matters, the impact of the reduction of fees on the employment tribunals, and indeed on the employment appeal tribunal, has made very good progress. We expect to publish the results of that review in the very near future. I regret that I cannot be more specific at this stage, but I hope the noble Lord, Lord Beecham, will accept that it is our intention to publish as soon as we reasonably can. That is anticipated to be in the near future.

It is appreciated that the number of employment tribunals has reduced since the introduction of fees, but I note that the introduction of fees was coincidental with the development of the mediation services in the context of employment applications. Therefore, one cannot simply attribute any reduction to fees being introduced in that respect. It would not be appropriate for me to anticipate the outcome of the review that has been carried out and which is to be published in the near future.

[Lord Marks of Henley-on-Thames]

Has any work been done to assess how far there is a match between the increase in mediation services and the drop in claims?

[Lord Keen of Elie]

As I said, I would not want to anticipate the outcome of the review, and we will look at the matter in light of that review once it is published.

I turn for a moment away from employment tribunals to the matter of the property law issues raised by the noble Baroness in her opening speech. It is necessary to remember that when we look at the matter of cost, it is not just fees or legal costs that may be incurred in the litigation. There is also the matter of recovery of costs in that context. In that area considerable progress has been made, particularly with regard to applications to the property chamber.

As noble Lords will be aware, provision had already been made with regard to preventing landlords, in some instances at least, from recovering costs from the tribunal by way of service charges against leaseholders. That will be extended by virtue of Section 131 of the Housing and Planning Act 2016, which will also endeavour to prevent landlords recovering such costs by way of administrative charges, so steps are being taken to try to limit the cost liability of those who have regard to these tribunals and courts. The noble Baroness also expressed some concern regarding the operation of cost awards in the property chamber. Of course, in general, parties meet their own costs of litigating in the tribunal system even when they are successful in a claim, although there are some exceptions to that in the procedural rules.

As the noble Baroness noted, there was a cap of £500 in respect of the cost rules of the property chamber, although I understand that that was rarely used. The Tribunal Procedure Committee has noted that there is concern about the removal of that cap, and it intends to run a consultation to seek views on whether to reintroduce a cap for costs for unreasonable conduct in the residential property and leasehold cases and, if such a cap is to be reintroduced, to address the question of the level at which it should be set. Again, in that regard some progress has been made, and I hope to report further in due course.

The noble Baroness referred to those appellants who do not have legal representation when they come to the tribunals and courts. Appellants using the tribunal system are not required to be legally represented and tribunals are characterised by an approach that is deliberately less formal than is generally found in the courts. The tribunal panel members themselves, as the noble Baroness noted, are trained to assist unrepresented parties by helping them to frame the way in which they present their case to the tribunal.

Of course, this issue is dealt with differently in the courts, but in November 2014 the support strategy for litigants in person was launched. This involves work by a range of partners across the sector to improve the experience of vulnerable litigants in person in three fundamental ways. The first is providing online and self-help resources, and making sure that those who need them know where they are and how to access them, a point raised earlier by the noble Lord, Lord Marks. The second is providing practical and emotional support. The third is providing access to free or affordable legal advice and representation wherever possible. Any legal proceedings are likely to be stressful, which is particularly the case in matters concerning families and children—one could not doubt that—but there is support for those who become involved in these proceedings.

I shall move on to the more general issue of costs. We have to address the fact that the cost of our courts and tribunals has to be met in some form or other. The Ministry of Justice is not a protected department and it has a very challenging financial settlement. We must reduce annual spending by 15% in real terms—about £1 billion—by 2019-20.

Achieving that scale of financial saving inevitably requires difficult and tough decisions. We need to look at every area of the department’s spending and there can be no exceptions for tribunals. I hope that noble Lords will recognise that, to ensure that they are properly funded and that access to justice is protected, increases to some court fees are required. The cost of our court and tribunal system to the taxpayer is unsustainably high and it must be right that those who use the system pay more to relieve that burden. However, Parliament has granted, through the Anti-Social Behaviour, Crime and Policing Act 2014, a power that allows the Government to set court and tribunal fees at a level above the cost of the service. The noble Lord, Lord Marks, made reference to that and I acknowledge it.

The income from those fees must be used to fund an efficient and effective system of courts and tribunals. When setting fees, the Lord Chancellor must have regard to a number of factors including the need to preserve access to justice. In respect of tribunal fees, the Government firmly believe it is right to ask users of the service to make a contribution to the cost of providing it. Reference has been made to the property tribunal: I note that the fees there are set at a level below the actual cost incurred, not above it nor even equal to it. The help with fees scheme exists to help those who cannot afford to pay, and the Lord Chancellor has the power to remit fees in exceptional circumstances. Specifically, for example, in the property chamber of the First-tier Tribunal, a new fee structure was introduced on 25 July 2016 to simplify matters: a single-issue fee of £100—hardly an insurmountable burden for a leaseholder—with a further fee of £200 for a review of an application.

We have to see all that against the background of proposals to modernise our whole court and tribunal system. The noble Lord, Lord Low, referred to the Briggs report and to the Government having decided to address that and review how they can take forward digitisation of the whole court process. The removal of paper and the streamlining of case management, wherever they can be achieved, are immediate goals of the present Government. Proposals are coming forward quite imminently to address the digitisation process. It will take time—years—to fully implement that sort of proposal, but we have begun that task, which will immeasurably improve the whole matter of access to justice. It will demystify the court process and, we hope, allow those who do not have legal representation to understand how to apply to and proceed through the courts in order to vindicate rights and to seek and secure justice. That extends to all those who may be vulnerable or in difficulty and who feel they have a just claim.

Ultimately, these changes will deliver swifter justice. Our wider reforms underline a guiding principle that our justice system must be proportionate and accessible to everyone. That means members of the public, legal professionals, witnesses, litigants, the vulnerable, victims of crime, and the judiciary itself.

Family Court

Lord Keen of Elie Excerpts

Monday 9th January 2017 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I shall now repeat in the form of a Statement the Answer to an Urgent Question tabled in another place on family courts. The Statement is as follows:

“I am grateful to the honourable Member for the chance to update the House on this important issue. The issues at stake in family proceedings are sensitive and often complex, and the decisions of the court can have far-reaching implications for the individuals involved. The presence of domestic abuse only exacerbates an already traumatic situation. That is why the Government have already taken steps to make sure that victims of domestic abuse in the family justice system have support and protection. We have protected legal aid for individuals seeking protection from abusers; we continue to invest in the court estate to improve both the physical security of family courts and the emotional support available for users; and we have placed renewed emphasis on training for those who work in the family justice system, making sure they understand the nature and impact of domestic abuse, and act appropriately when they encounter it.

But we know that there is more to do. As my colleague the Minister for Victims, Phillip Lee, made clear when these matters were debated in Parliament on 15 September, this Government are determined to improve the family justice response to domestic abuse and we have been working closely with the judiciary and others to consider what additional protections may be necessary. We are particularly concerned about the fact that unrepresented alleged perpetrators of abuse can directly cross-examine their alleged victims in family proceedings. I want to make family court processes safer for victims of domestic abuse so that they can advocate effectively for themselves—and for the safety of their children. That cannot happen while a significant number of domestic abuse victims face cross-examination by their abusers.

The Justice Secretary has therefore requested urgent advice on how to put an end to this practice. This sort of cross-examination is rightly illegal in the criminal courts, and I am determined to see it banned in family courts, too. We are considering the most comprehensive and efficient way of making that happen. That will help family courts to concentrate on the key concerns for the family and always put the children’s interests first—which is what they are supposed to do. This work, which is being fast-tracked within the department, is looking in particular at the provisions in the criminal law which prevent alleged perpetrators from cross-examining their alleged victims in criminal proceedings, and we are considering how we might apply similar provisions in relation to family proceedings.

Members will appreciate that such a proposal requires thought, but we want to resolve it as soon as possible. We will make further details available shortly, once the work is complete. I would like to thank the President of the Family Division, Sir James Munby, who has argued passionately that this practice should be outlawed for good”.

[Lord Beecham (Lab)]

My Lords, while the Secretary of State’s announcement is welcome, this issue was highlighted in a report in 2014, and was pursued by the All-Party Parliamentary Group on Domestic Violence, which, in a report last April, listed seven recommendations, including one on this issue, none of which appears to have been implemented. In 80% of cases in the family court, one or more parties is unrepresented, a major problem being access to legal aid. How much has been saved on legal aid in the family courts, given the minimal grants of exceptional funding in domestic violence and abuse cases? In the first six months of last year, only five out of 125 applications for exceptional funding were granted. Will the Government now act on the other recommendations of the all-party parliamentary group? Do they have a view on the perhaps more controversial proposal of Sir James Munby for family court hearings to be in public, for which he is proposing a trial run?

[Lord Keen of Elie]

We are, of course, aware that this has been a matter of concern. That is why we are determined to address it as urgently as we can. On the matter of legal aid, clearly there are many circumstances in which individuals will seek to represent themselves in family proceedings. Even where that is done, there has to be some degree of control over their conduct. I believe that everyone in this House would agree with that. I point out that we spend in excess of £1.5 billion a year on legal aid. That was the figure for last year. We have increased the availability of legal aid in domestic violence cases—for example, by increasing the period during which evidence of abuse can be produced from two years to five years. As regards the other recommendations under consideration, I invite the noble Lord to await the outcome of the urgent work being done by the department and the conclusion of that work.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we too welcome the Secretary of State’s announcement. Direct personal cross-examination of alleged victims of domestic abuse by their alleged abusers is unacceptable and must stop. It causes distress and damage to victims and their children and deters victims from seeking protection and redress from the courts. It has become more common with the reductions in legal aid.

Can we be assured that the department’s work will be both swift and thorough and will address a range of possibilities: questioning through a court-appointed lawyer or other third party; strict limits on the ambit of cross-examination to restrict it to what is necessary and relevant; comprehensive witness support; and the use of video links so that parties are in separate rooms? Will the department also establish a procedure to ensure that in future, when a judge in a position such as that of the President of the Family Division presses for a change, as Sir James Munby has pressed for a change in this area since 2014, they are listened to? We should not have to wait for a newspaper campaign, however creditable, to ensure that change happens.

[Lord Keen of Elie]

I am obliged to the noble Lord. Of course we are concerned about the distress that can be caused to victims as a result of cross-examination in cases of this kind. The investigation, inquiry and work that the department is undertaking in this regard will be swift and thorough. It would not be appropriate for me to anticipate the outcome of that work at this time, but clearly a number of options will be available. For example, one can take some guidance from what happens in the criminal courts, where the judge may determine what questions are to be put to a witness, may decide to put those questions to a witness himself, and the circumstances where the judge may determine that a third-party advocate should instead be employed to put such questions. However, as I say, I do not seek to pre-empt the urgent and swift investigation and determination that is being undertaken at present.

[Lord Mackay of Clashfern (Con)]

I should have thought that the principle which precludes the victim in the criminal courts being cross-examined by the alleged abuser would apply equally in the family court. That principle should apply. Will the Minister confirm that cross-examination is intended to be an opportunity to ask questions to ensure that the tribunal has a proper balance on the facts and is not an occasion on which to offer insults to the party being cross-examined?

[Lord Keen of Elie]

I am obliged to my noble and learned friend, who has a great deal more experience in these areas than I would ever hope to achieve. Clearly, the purpose of cross-examination, whether it is to challenge credibility or reliability or a particular account, should be pursued by way of questions. It is not an opportunity to make statements to the court or to give evidence and should never be an opportunity to resort to abuse, whether of a victim, a witness or the court itself.

[Baroness Burt of Solihull (LD)]

My Lords, this issue is widespread, serious and urgent. Research by Women’s Aid found that one in four women in this situation faced direct questioning from their alleged abusers. We welcome the urgency of the Government’s review, but does the Minister agree that some things could be done now without the need for legislation—for example, having the victim and the alleged abuser in different rooms, with questions being put via a video link? Will the Minister commit to look at what the Government can do now, and place whatever legislation is necessary before Parliament at the earliest possible moment? Will he also look at what can be done in the interim?

[Lord Keen of Elie]

I am obliged to the noble Baroness, who makes a very good point with regard to how we may attempt to tackle this matter, by way not only of legislation, be it primary or secondary, but also by way of the procedural rules which apply in the context of family cases. That will be looked at in the context of the present review and work. If we consider that steps can be taken, we will make representations to the judiciary so that it can properly examine how these procedural rules can be considered. I understand that the President of the Family Division has arranged that certain work should be undertaken with regard to children in the context of the procedural rules.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I sit as a lay family magistrate in Greater London. Sir James Munby has introduced Practice Direction 12J whereby abusers cannot cross-examine people in court. However, my experience is that while the parties in the family court are very often unrepresented for various reasons, not least because they have not applied for legal aid, there are other opportunities for interaction and potential abuse in the court system, not just in the courtroom itself. Therefore, while I welcome the emergency review announced recently, I think that there needs to be a more wide-ranging review of the family court process as a whole if one is to address these issues. It is certainly my experience that the practice directions that we operate in Greater London prevent the sort of cross-examination which a lot of pressure groups are talking about. The issue is about the wider context. I hope that the Ministry of Justice will expand its review of the family court practices.

--- Later in debate ---

[Lord Keen of Elie]

I am obliged to the noble Lord, who makes a sensible observation about the fact that this extends beyond the immediate issue of the cross-examination of vulnerable witnesses and victims. We continue to invest in improving the court estate to improve physical security in the family courts, which is important. In addition, we have placed renewed emphasis on the training of those who work in the courts in order that they are alert to the sort of issue the noble Lord alluded to, and that work is ongoing.

[Baroness Newlove (Con)]

My Lords, while this news from the Government is welcome, and for the work I do as Victims’ Commissioner, the important word for victims of the horrendous crime of domestic abuse is “swift”. Coercive behaviour by perpetrators in our family courts is so rapid that we need to work quickly to ensure that we protect these victims. It disheartens me to hear about families being broken up. In the Secretary of State’s Statement she says that it is about the child. I visited the grooming victims in Rotherham and parents of these children who have been groomed, and the coercive behaviour, the courtrooms and the Cafcass officers—who are supposed to think of the child—have actually broken the family relationship between the mother and child. So while we work to make this swifter, I want to ensure that the Government look at the wider approach, ensure that there is proper training and make that swift, because at the moment victims have no protection whatever. They go into a different courtroom, having gone through the criminal courtroom, and it would be good if we could make the criminal court transfer issues to the family court so that it gets the evidence quickly to support the victims of domestic abuse. The coercive behaviour is horrendous for these victims.

[Lord Keen of Elie]

I am obliged to my noble friend. Of course, it is necessary to maintain a fairly clear distinction between criminal process arising out of criminal acts and the consequent need to deal with the family consequences in the context of civil proceedings that involve divorce, separation, custody and access to children. The primary interest is always the children themselves, but let us remember that when we talk about abuse, we are not just talking about the abuse of a partner. Sometimes, unfortunately, we are dealing with the abuse of the children of the family unit itself and the coercion against the partner to avoid disclosure of that abuse. Therefore, we have to look to the partner and the children as all being potential victims in these circumstances.

Prisons: Safety and Security

Lord Keen of Elie Excerpts

Wednesday 21st December 2016 Lords Chamber

[The Lord Bishop of Rochester]

My Lords, I beg leave to ask the Question standing in my name on the Order Paper and I draw the House’s attention to my interest as the Bishop to Her Majesty’s Prisons.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, while we implement our White Paper reforms, which will reduce violence and reoffending, we are continually working to ensure stability across the prison estate. The Prisons Minister chairs daily meetings with senior members of the Prison Service to monitor potential unrest. Where necessary, we are providing governors with immediate targeted support, such as rapid facilities repairs, and we are in the process of recruiting 2,500 additional officers across the estate.

[The Lord Bishop of Rochester]

I am grateful to the Minister for his response. I am also grateful for the debate and discussion in your Lordships’ House on Monday following the Ministerial Statement. In that debate, a number of noble Lords drew attention to the importance of purposeful activity for prisoners, including education, training, work and a range of other rehabilitative programmes. Such activities aid reform, encourage positive behaviour and thus enhance safety and security—but they can also be seriously compromised, not least by staffing issues. Can the Minister assure the House that such programmes will be sustained and ideally increased in the short term as well as the long term?

[Lord Keen of Elie]

My Lords, 16 million hours of works were delivered in prisons during the year 2015-16. We want to see more work in prisons, leading to jobs outside prison. More private sector companies now employ ex-offenders than ever before and we are keen to increase the number of employers who can provide valuable vocational work for offenders while in prison. We intend to pursue that objective.

[Lord Laming (CB)]

My Lords, would the noble and learned Lord agree that a good way of reducing pressure on the Prison Service is to have in place robust and effective non-custodial sentences in which the courts can have confidence? That being so, will the Minister be willing to share with the House the Government’s response to the recent devastatingly critical report on the probation service from the Chief Inspector of Probation?

[Lord Keen of Elie]

We are clearly of the view that we should seek non-custodial sentences wherever possible—but, of course, the facilities to support that must be available. Criticisms were levelled recently at certain aspects of the probation service, which remains so important to that element of non-custodial work. Nevertheless, we want to see this expanded, maintained and improved.

[Lord Harris of Haringey (Lab)]

My Lords, serious concerns were raised by the independent monitoring board in respect of conditions at Her Majesty’s Prison Birmingham. Were the concerns in that report flagged up to Ministers? What consideration was given to reports from other independent monitoring boards highlighting similar conditions in other prisons? Finally, are Ministers considering giving greater independence and authority to independent monitoring boards, perhaps by making them accountable through Her Majesty’s Inspectorate of Prisons?

[Lord Keen of Elie]

Both Her Majesty’s Inspectorate of Prisons and the independent monitoring board reports reflect the challenges that have built up in our prisons and prison estate over many years. In respect of that, we have now announced a comprehensive programme of reform.

[Baroness Sharples (Con)]

How many writers in residence are there in prisons?

[Lord Keen of Elie]

My Lords, I am not able to answer that question immediately but I will undertake to write to my noble friend with the relevant figure.

[Lord Beith (LD)]

Will Ministers address the urgent need to deal with the release of IPP prisoners who are beyond their tariff? What use is being made of the reserve list, which Mr Grayling set up in 2014 when he was Secretary of State, of former prison officers and others who could be called in during situations such as this?

[Lord Keen of Elie]

I am obliged to the noble Lord. Public protection remains a key priority in the context of how we deal with IPP prisoners. These people have been sentenced for offences involving serious violence and serious sexual crime. We set up a new unit within the Ministry of Justice to tackle the backlog with respect to IPP prisoners and we are working with the Parole Board to improve the efficiency of that process. We have an enhanced case-management system. We are diverting recall cases away from the Parole Board so that it can focus on reviewing IPP prisoners. In the past year, 38% of IPP prisoners who attended oral hearings completed by the Parole Board went on to be released. So matters are improving. Indeed, in the last year we released 512 IPP prisoners from custody—the largest number so far—bringing the total figure below 4,000.

[Lord Ramsbotham (CB)]

My Lords, when a previous Government formed a judicial inquiry in 1978 to look at the state of prisons, it was largely because of concern over in-house inspection, which was causing public unease. The problems in our prisons will not be solved easily and will not be solved unless the problems facing the probation service, which my noble friend Lord Laming drew attention to, are solved. One of the results of the riots in Strangeways was the masterly report by my noble and learned friend Lord Woolf, which led to much examination of many issues. Can the Minister say whether or not the Government will consider appointing an independent outside observer, rather than the in-house person who has been appointed, to examine the Birmingham troubles?

[Lord Keen of Elie]

My Lords, we have already made an appropriate appointment for the carrying out of a full investigation of the incident at Birmingham prison, and that investigation is now proceeding. I pause to allude back to the question from the noble Lord, Lord Beith, a few moments ago. He also asked about the reserve list of prison officers. That is maintained and relied upon. I apologise for omitting that from my previous answer.

[Baroness Corston (Lab)]

My Lords, the Minister referred to the fact that these difficulties in our prisons have been building up for, he said, many years. As someone who has been interested in penal policy for at least 20 years, I disagree vehemently. This current problem about riots and no access to education in prisons is a direct result of the fact that under Chris Grayling as Secretary of State we had a 30% cut in the prison staff population. How on earth we expect that reduced staffing level to deal with all the problems that are being discussed today is beyond me.

--- Later in debate ---

[Lord Keen of Elie]

With respect to the noble Baroness, I observe that reference has already been made to Strangeways, one of the worst incidents in any of our prisons in the past 25 years. It did not take place under the tenure of Mr Chris Grayling.