House of Lords

Friday 26th October 2018 Lords Chamber

Friday 26 October 2018

10:00

Prayers—read by the Lord Bishop of Salisbury.

Health and Social Care (National Data Guardian) Bill

2nd reading (Hansard): House of Lords
Friday 26th October 2018 Lords Chamber

Second Reading

10:05

Moved by

[Baroness Chisholm of Owlpen]

That the Bill be now read a second time

[Baroness Chisholm of Owlpen (Con)]

My Lords, the Bill will place the National Data Guardian on a statutory footing and will promote the provision of advice and guidance on the processing of health and social care data in England. It is an honour for me to bring the Bill before your Lordships today.

The Bill is an important step in increasing the public’s and patients’ confidence in the use and appropriate sharing of health and care data. It has gone through the necessary stages in the other place and I extend my thanks to the many people who have helped prepare the Bill, in particular to Jo Churchill for her dedication to the original Private Member’s Bill and to Peter Bone for sponsoring the Bill in the other place and ensuring that it reached this stage. It would be remiss of me to proceed without mentioning and thanking the National Data Guardian, Dame Fiona Caldicott, who has contributed so much to this area. I am grateful to the Parliamentary Under-Secretary of State for coming to listen to the debate. I appreciate the department’s help with the progress we have made so far and the cross-party support for the principle behind the Bill. Indeed, I see that Jo Churchill is also here today and we welcome her. I hope that with that cross-party support, the Bill will go through its stages here as quickly as it did in the other place.

I would like to take some time to reflect on the importance of the role of the National Data Guardian. We all know that when collected and used properly, healthcare data has the potential to be transformative for patients. Sharing data offers immense promise for improving the NHS and the social care system, as well as benefiting individuals through unlocking new treatments and medical breakthroughs. Getting information sharing right can create a better experience for people using services and make care more efficient. Too many people with serious conditions have to tell the same story to multiple people and services involved in their care. Appropriate data sharing could eliminate any unnecessary burden. As well as that, if commissioners have access to data that they need to make the decisions about the best use of their resources locally and nationally, services can be provided where they are most needed and available funds can be maximised and budgets fully optimised.

Of course, our ability to unlock the benefits of data sharing relies on the public having confidence in the health and care system’s appropriate and effective use of data. If data and information is to be used effectively to support better health and care outcomes, the public have to have trust and confidence that there are strong safeguards in place to protect it from inappropriate use. The establishment of the National Data Guardian as an authoritative and independent voice for the patient and service user on how their data and information is used is a crucial element in that. This short but important piece of legislation will promote challenge and build assurance across the health and social care system, enabling the system to access the data it needs to run safely, effectively and efficiently. A statutory National Data Guardian will enable the postholder to speak with increased authority. A statutory basis increases strength of argument, allowing for guidance to be published as standards and good practice to which relevant organisations must have regard.

Importantly, the National Data Guardian is not a regulator. The role is first and foremost to support organisations and individuals who use health and care data to do so in accordance with the relevant laws and good practice. Placing the role on a statutory footing was a manifesto commitment of the Government, and the Government’s support has been clear throughout the Bill’s progress. The Bill will be significant in maintaining public trust and confidence in the appropriate and effective use of health and care data.

I shall give a short summary of the provisions of the Bill, which consists of only six clauses and will establish the statutory role of the National Data Guardian. The Bill also makes provision for the administrative and financial operation of the National Data Guardian’s office. The Bill will give the National Data Guardian the power to publish formal guidance and provide informal advice, assistance and information relating to the processing of health and adult social care data in England. The Bill imposes a corresponding duty on public bodies within the health and adult social care sector and private organisations that contract with them to deliver health and adult social care services. They must have regard to the National Data Guardian’s formal published guidance.

The Bill requires the National Data Guardian to consult with appropriate persons before publishing the guidance and requires the National Data Guardian to produce an annual report including a set of accounts, details of advice given and guidance published in the previous financial year, and the priorities in the forthcoming year. The Bill gives the Secretary of State the power to provide for the commencement of its provisions, and requires him or her to appoint an individual to hold office as the National Data Guardian.

A money resolution to authorise money for the Bill was laid before Parliament on 21 May 2018. The expenditure of £725,000 per annum is necessary for the Office of the National Data Guardian to undertake its statutory function. The cost is based on the current £500,000 per annum provision for the existing non-statutory National Data Guardian office. The overall increase in spend of £225,000 per annum relates predominantly to additional team resources to strengthen the National Data Guardian office’s ability to prepare and disseminate statutory advice and monitor its impact and relevance, amid anticipated increased demand for independent legal advice and assurance, along with a further responsibility for communication and engagement, including delivery of formal guidance, production of an annual report and accounts, and raising the profile of the National Data Guardian’s website.

I will reflect on a few points which have been raised in discussions over the past couple of weeks. With regard to whether the statutory National Data Guardian will have access to the Information Commissioner’s Office, the National Data Guardian already has a formal understanding and close working relationship with the Information Commissioner’s Office. That is covered by a memorandum of understanding. We would expect to see this updated to reflect the statutory footing. The statutory role allows the opportunity to build on the relationships already developed with regulatory bodies, including the Information Commissioner’s Office, the CQC and NHS Improvement, and to support them in their responsibilities around ensuring that appropriate practices are being adopted by regulated organisations.

I draw your Lordships’ attention to the fact that the Act would come into force,

“on such day as the Secretary of State may by regulations appoint”.

Regulations to this effect made under Clause 5 are to be made by statutory instrument. The Bill contains no other regulation-making powers. There is no intention to amend this.

Lastly, the Bill’s provisions extend to private sector providers that contract with public bodies to deliver health and adult social care services. These must have regard to the National Data Guardian’s published guidance. Data held by privately arranged and funded health and adult social care providers is not covered by the Bill. However, private providers of healthcare will have access to NHS patient data in the vast majority of cases—for example, where patients give their consent for their records to be shared—but this alone will not bring them within the scope of the Bill. The NDG’s remit extends to all health and adult social care data but purely private bodies are not required to have regard to published guidance.

Placing the National Data Guardian on a statutory footing is important for many reasons. This is a significant time in the history of health and care and it is critical to maintain and strengthen public and patients’ support. People want to know what their data is being used for, who it is being shared with and why. A statutory National Data Guardian will be key in ensuring that citizens’ confidential information is safeguarded securely and used fairly and lawfully. I thank everyone for their help so far and I hope that we can make swift progress with the Bill. I beg to move.

10:16

[Lord Patel (CB)]

My Lords, I am very pleased to support the Bill. It is a simple Bill, which has been a long time coming. I pay tribute to two friends: Jo Churchill and Dame Fiona Caldicott, both of whom I know extremely well. Dame Fiona Caldicott has been a staunch guardian of the public interest so that patients can have confidence that whenever their data is kept and used, it is secure and used responsibly and transparently. In 1997, after her first review, she established what became known as Caldicott Guardians in every hospital in the land. As somebody who was involved in the use of patient data at that time, I can tell your Lordships that you had to satisfy the Caldicott Guardians—they were no pushover. They were there to make sure that patients’ data was used appropriately and responsibly and that the purpose was clear. It is because of this that all the professional bodies—the royal colleges, the GMC, the researchers and research organisations, and all others—back the Bill.

It is a simple Bill. It is necessary to put on a statutory basis what has been working extremely well on a non-statutory basis. Following the disestablishment of the national governance board, there was no statutory body to be the arbiter and the guardian of patient data. Putting the National Data Guardian on a statutory basis will provide that. As has been laid out clearly and in detail by the noble Baroness, Lady Chisholm, it is there to give guidance and help and to work on behalf of patients and the public so they can have confidence that the data about them or their health is used appropriately and for a clear purpose. This becomes even more important as we go further in using data to develop genomic information to improve healthcare and to develop things such as artificial intelligence for diagnosis. The National Data Guardian will therefore have an extremely important role to play.

I support what the noble Baroness, Lady Chisholm, said: we must not confuse the Bill with taking over any of the role of the Information Commissioner, or, for that matter, the Data Protection Act. This is completely different from them. It is focused on health and care data—how it is used and who is the guardian of that information in the public interest. I strongly support the Bill and hope that we will not hold it up in any way whatever. It would be a great pity if the Bill failed because of some misunderstanding of what it is all about.

10:20

[Lord Knight of Weymouth (Lab)]

My Lords, I too very much welcome the Bill and the way that it was introduced by the noble Baroness, Lady Chisholm, with appropriate detail and clarity, and the speech by the noble Lord, Lord Patel. Like them, I agree that it is important to give the authority of a statutory footing to the National Data Guardian, Dame Fiona Caldicott.

I remind your Lordships of my interests in respect of my part-ownership and administration of a company called xRapid. Without wanting to go into any kind of long advert for its technology, it demonstrates why I am excited by health technology. This particular technology uses an Apple iPhone attached to a microscope to allow diagnostics, such as of malaria. It works in the same way that a laboratory technician does: it recognises what it sees through a microscope and gives a diagnosis. To be able to do that the computer has to be trained, which is done by it looking at a series of images so that it can learn what the parasites look like. That is health data which has to be collected in order for the machine to be trained. But I see the huge social benefit of that technology—in the end, of that data being used—to provide much cheaper and much more accessible and affordable access to diagnostics around the world.

I have huge excitement around the potential for machine learning and other artificial intelligence to be able to spread some significant health benefits. I want that excitement to build and for others to share it but I am also aware of the worries that people have about the privacy of their data. I share those worries, especially about the inferences that can be drawn from data when it may not have been collected for a specific health purpose, as in this case, but is then mashed with data that has been collected with consent for health-related purposes. Inferences and intelligence are then drawn from what is found and analysed.

I was supportive of the Data Protection Act, as it now is, but at the time of its passing I also pointed out the limitations as I saw them, in that it is a consent-based regime. It is very difficult to give consent about information if I do not know that you have it, because you have inferred it from analysing various sources of data that I might not know about. That is why I have previously talked in this House about the need for us to explore mechanisms such as data trusts and a statutory duty of care on technology companies, similar to the duty of care that they have in the physical world in respect of environmental protection or health and safety. In that way, they can then be held to account in a more general way for how the technology is used for social good.

Those concerns are good reasons for our needing a National Data Guardian in respect of health. I had some initial concerns about how that guardian would relate to the regulators but as set out by the noble Baroness, Lady Chisholm, in her speech I am satisfied that there would be a reasonable relationship—one whereby the National Data Guardian issues guidance, and the trusts and other health bodies would adhere to that guidance. If they did not, then it might be referred to the regulator.

I also remind the House of my interest as one of the chief officers at Tes Global, a large education business. I guess that my only question—if the Minister is in a position to answer questions when he responds—would be around the remit of the National Data Guardian. At Tes, we hold all sorts of data on teachers’ behaviour but we do not really hold any for children. I understand from my relationship with education the particular sensitivities that we have around the collection of children’s data: how it is held, who it is shared with and what happens when there are data breaches in respect of children. I am aware that there are 25,000 schools in this country collecting data on a systematic basis, many of which are led by people who are struggling to understand their obligations under the Data Protection Act and GDPR. I think that they would welcome guidance from a National Data Guardian, if such a person had a remit that extended to children and vulnerable adults. If the Minister were able to give any thoughts on it, has any consideration been given to extending the role of the National Data Guardian or finding another body that could perform a similar function in respect of children and vulnerable adults’ data as a whole?

I very much welcome the Bill and hope that it proceeds quickly, as the noble Lord, Lord Patel, said. We should get this on to the statute book quickly so that these protections can be put in place and it becomes part of a range of what has to be ever evolving legislation where we, as policymakers and legislators, are continuously keeping an eye on an ever evolving technological landscape. That will allow us to live in a society which can realise the excitement that I have around health technology and other social technologies, with the confidence of knowing that our rights as individuals in respect of the privacy of our data are being maintained.

10:26

[Baroness Kidron (CB)]

My Lords, I refer noble Lords to my registered interests, particularly as founder and chair of the 5Rights Foundation. Like the noble Lords who have already spoken, I very much welcome the Bill. Dame Fiona Caldicott’s role is important and if by putting her guidance on a statutory footing we give it more weight, then that can only be a good thing. I want to raise some things that are not covered in the Bill. I have one substantive point about the value of the data that the NHS holds and a couple of questions for the Minister.

The longitudinal data gathered by the NHS since its inception is one of the most valuable health datasets in the world. Within it lie clues to the next generation of drugs and treatments, and entirely new ways of thinking about prevention, treatment and cure. Equally, the gathering of data across health and social care could revolutionise the provision of services. If we knew the impact of meeting, or failing to meet, the social needs in the community on health outcomes, or could accurately predict the social care resources required for certain health conditions, it could help government to provide the right service at the right time to the right people, most probably at less cost.

While using data to improve health and social care outcomes is an exciting prospect, I believe we need to do it in a way that benefits the NHS and the British people. In 2016, the Royal Free London NHS Foundation Trust allowed DeepMind, an artificial intelligence company owned by Google, to access 1.6 million patient medical records in a trial of its Streams app, which was an alert, diagnosis and detection system for acute kidney injury. Subsequently, the arrangement was found to have been given on an “inappropriate legal basis” that broke data protection laws and revealed swathes of highly personal information without patient consent. The following year, Taunton and Somerset NHS Trust partnered with DeepMind on the very same app. In spite of a freedom of information battle and a data audit done by Linklaters on the instruction of the ICO, we still do not fully understand the financial or IP benefits of this deal to the NHS. But we do know that, earlier this year, DeepMind stated that while it was currently providing its development resources free to the NHS,

“it would determine how much to charge the NHS … later”.

The costs of healthcare have become distorted with drug companies and private providers demanding eye-watering sums from the NHS. I wonder whether this Bill is an opportunity to start redressing the imbalance because, if the national data guardian Bill ensured that the value of the IP that emerges from our health data was properly recognised, that data could, with the consent of the patient, be shared or sold on a basis that that could revolutionise the financing of our struggling health service in the future.

Without a clear mandate, individual trusts with crippling budget deficits may be tempted to commoditise patient data in exchange for cash injections offered by corporations with far deeper pockets. The breakthroughs and advances that patient data makes possible may well then be sold back to the NHS at inflated prices, creating the risk that they will be out of the reach of the very people upon whose data they were built. To understand the value of the data in the NHS, we need only look at the share price of data-rich companies, even those with no revenue. The Secretary of State for Health and Social Care is particularly well placed to understand the value of what we hold. I would love to see the Government use this Bill to give the National Data Guardian a duty to develop binding and enforceable guidelines for the sale and exchange of health data for research and development. Those guidelines should fully reflect the sensitivity of the data and the singular value of the NHS dataset.

In addition to this point, I would like further details about the powers of the National Data Guardian. Will the Minister say what duty health providers have to comply with the National Data Guardian’s guidance and to demonstrate how they have done so? As noted by the shadow Minister in the other place:

“Without a requirement for organisations that receive advice to provide evidence of their response in a way that can be easily disseminated, there is no way we can be sure that the Data Guardian will be effective”,


since,

“to ‘have regard’ to advice does not always mean that they take action in respect of that advice”.—[Official Report, Commons, Health and Social Care (National Data Guardian) Bill Committee, 6/6/18; col. 7.]

If, as has been explained, the purpose of putting the National Data Guardian’s role on a statutory footing is to give it weight, which we all welcome, surely a requirement to prove that the guidance has been acted upon is essential.

In looking at the information about the Bill, I found it hard to establish how the National Data Guardian will decide what guidance is needed. A positive obligation to provide the NDG with information about current data-sharing arrangements through report or audit would enable her to identify and anticipate potential issues and to address them in her guidance. Perhaps the Minister will explain why this obligation does not form part of the Bill.

I understand that children’s health data is covered by the Bill but not children’s social care data because that is covered by the Children and Social Work Act 2017. This carve-out raises the question of how family social care data will be considered, especially with regard to decisions made about one family member that can be made only in full sight of the family’s circumstances. I am sympathetic to the Government’s concern about conflicting guidelines, but the absence of guidance for children’s social care may well create greater conflict than a judicious overlap. The Association of Directors of Children’s Services, the Local Government Association and medConfidential are just some of the many organisations which have said that without children’s social care data in scope the National Data Guardian role is “a risk”, “perverse”, “not sensible” and “not a data guardian”.

The challenge we have about data in the 21st century is about its flow between one environment and another. Its value, beneficial and malign, lies in the fact that it can be amalgamated to reveal patterns of information and create new intellectual property. For that reason, it is frustrating to see children’s data being treated on a sector-by-sector basis. Has the Minister given any thought to how the partial coverage of children in this Bill fits with the Government’s other activities in this area, including the age-appropriate design code, potential outcomes from the Centre for Data Ethics and Innovation and the long-awaited internet safety strategy? Once again, I am afraid, I must put on the record my deep regret that the Government have deliberately chosen to deprioritise children by removing the UK Council for Child Internet Safety’s child focus, which could have served as a single point of expertise to consider children’s needs across all sectors.

I conclude by acknowledging the kindness of the noble Baroness, Lady Chisholm, in discussing the scope and purpose of the Bill in the run-up to today’s debate. I hope that I will receive comprehensive answers on all of these points, if not this morning, then certainly before the Bill progresses.

10:35

[Baroness Walmsley (LD)]

My Lords, I thank the noble Baroness, Lady Chisholm of Owlpen, for introducing this important little Bill. From these Benches, we support it. Patient data is precious to each and every patient, and it is vital to the success of treatment that it is shared appropriately with those who have care of the patient. As the noble Lord, Lord Patel, said, it is also precious to the NHS as a resource for research into new treatments and for monitoring the effectiveness of existing treatments. As such, it has a value, which raises the ethics of how it is used by the NHS and others. These two aspects of data make it highly desirable that we have a person, backed by an office and adequate resources, who can establish best practice and ensure it happens.

I agree with the noble Lord, Lord Knight of Weymouth, about the importance of knowing that we have proper and accurate data collection to enable us to exploit the enormous potential of artificial intelligence. When I left university more than 50 years ago, I worked at the Christie Hospital reading cervical smears. My job is now done much faster and probably more accurately by a computer, and there are many other opportunities to speed up diagnosis and make it more accurate. That is one of the many reasons why this Bill is needed.

The measures that have been taken over the last few years, since the debacle of care.data, to protect patients’ data and privacy have been very helpful, and I hope this latest step will go a long way to countering the lack of trust in some quarters which followed the data breaches of the past. Fundamentally, to have confidence in the system, patients should be able to know how data about them is used. That is necessary if the NDG is to be meaningful.

Currently, many patients who want to see how data about them is used go to theysolditanyway.com. While it has a very negative title, it is not an official NHS site. The launch of the new NHS app would be a great opportunity for the NHS to make full and accurate information available to every patient. Patients understand how important it is that their data should be shared appropriately between health and care workers who are providing services to them. Indeed, it is highly desirable that all who have care of patients have relevant information on which to act. We have all heard of cases where this has not happened. I hope the Minister will be able to assure us that, with the safeguards that will be in place when this Bill becomes an Act, the quality, capacity and interoperability of IT provision in the NHS and care systems will be up to the job.

However, patients are perhaps less aware of the value of anonymised data to researchers. Without access to it, medical research would be put back a long way. The first figures from the national data opt-out designed by the National Data Guardian are now available. They show that while hundreds of people made a consent choice each month using the online service, thousands of people did it at their GP. The latter option has now been taken away by Department of Health and Social Care. Is this the Government’s idea of a successful digital service? Is it not vital to have an effective public information scheme so that patients understand the issues surrounding their consent, what is being done with their data and how to make their choice? The figures suggest that that has not been done so far, but it is early days.

I hope that when the Bill becomes law the Government will be making an effort to explain to patients how their information is being protected and why they can now have confidence that when they allow their data to be used it will be done in an efficient and ethical manner in the interests of all patients now and in future.

Turning to specifics, I think it is welcome that the NGD may not only issue statutory guidance but provide help and information to assist health and care organisations not just to comply but to achieve excellence in the way they handle patients’ data and any constraints on their use of that data in generating income. Clause 4 provides that the Bill extends to England and Wales only. However, the Bill’s Explanatory Notes state that Clause 1, which provides for the NDG to publish guidance and give advice, information and assistance, applies only in relation to the processing of health and adult social care data in England. Given that health is devolved in Wales, can the Minister please explain this for the record as it has been explained to me behind the scenes?

I turn to the issue of cost. The Explanatory Notes state that the Bill may result in some,

“implementation costs for the bodies and individuals required to have regard to the Data Guardian’s published guidance, in that they will need to review and assess the relevance of the guidance”.

Given that NHS trusts, GPs, local authorities in respect of adult social care and so on are all under financial stress, what is being done to provide for these costs? It is not just a matter of assessing the relevance of the guidance, as the notes say; there may be a need to put in place new systems for ensuring that they are compliant with the guidance, and that also has a cost.

In Committee in another place, Chris Bryant MP made the point that MPs often have confidential information about constituents’ health given to them willingly by the patient when asking for help or making a complaint about their treatment, and that sometimes applies to Peers too. He asked whether the NDG would be able to advise MPs about the handling of this data even though they are not covered by the Bill. The answer from the Minister was not very helpful: she said she hoped health organisations would be open and helpful to their MPs about these issues. That is all very well, but it did not give Mr Bryant the assurance that he was seeking about help and guidance for Members, so can the Minister do so now?

Having asked these various questions, I assure the Minister that we on these Benches are very supportive of this mainly uncontroversial Bill.

10:42

[Baroness Thornton (Lab)]

My Lords, I pay tribute to the noble Baroness, Lady Chisholm, for bringing the Bill before us today. I join her and others in paying tribute to Dame Fiona Caldicott. The Bill has the support of these Benches.

The purpose of the Bill, as noble Lords have said, is to establish a statutory footing for the National Data Guardian for Health and Social Care. This role is responsible for providing advice and guidance to all the relevant parties regarding the processing of health and adult social care data in England. I agree with other noble Lords that the NDG is vital in helping to ensure that confidential health and care data is used and shared appropriately, upholding and protecting high standards for medical confidentiality. As the noble Lord, Lord Patel, said, it is very important that the organisation that is already providing this crucial function has wended its way into this position. We welcome the fact that that is to be recognised in statute.

As noble Lords know, the Information Commissioner’s Office is the regulator for compliance with the general data protection regulation and the Data Protection Act, but there is no equivalent national regulator for the confidentiality of personal healthcare data—information provided by a patient to a healthcare professional for the purposes of receiving care or treatment—despite significant public interest in maintaining a confidential healthcare service. We on these Benches support the creation of a statutory basis for the National Data Guardian’s role, given the hugely important role that it plays in this area. I thank noble Lords and the National Data Guardian for the consultation and discussions that all stakeholders have been able to take part in in preparation for the Bill. We have appreciated that.

That is in sharp contrast to the conduct regarding the Mental Capacity Bill. If I might swerve slightly for a moment, I was shocked to learn that the Minister and his colleagues have rejected a freedom of information request about the consultation that they carried out before the Mental Capacity Bill was introduced to the House, which was also in sharp contrast to the level of transparency and consultation by the Law Commission when it looked at mental capacity. I feel I need to say to the Minister that he really could learn a few things about how to manage complex policy issues from the National Data Guardian and indeed the Law Commission.

I return to the Bill. The circuitous route to get here, which was mentioned by the noble Lord, Lord Patel, has actually been beneficial to where we have ended up and what we have before us. I welcome the fact that the Bill includes the social care data and the importance of protecting patients’ data wherever they find themselves in the health and social care system. I echo and agree with my noble friend Lord Knight’s remarks and questions, and I share his excitement about the use of data and the benefits that it can bring to patients and their families.

I have received a briefing from the National AIDS Trust. I do not wish to delay the Bill but I think this briefing raises some important points about it. The National AIDS Trust agrees with the rest of us in strongly welcoming and supporting the Bill. Given that HIV stigma and discrimination are still prevalent in society, people living with HIV need to be assured that appropriate protections around confidentiality are in place when they access health and social care services. Indeed, the NDG herself has proved to be an invaluable source of expertise and advice when it comes to the health and social care system maintaining that essential balance between confidentiality and communication for this group.

The concern that the trust wants me to raise on its behalf is that in Clause 1 the Bill provides for a legal duty on relevant public bodies to have regard to guidance published by the NDG,

“about the processing of adult health and social care data in England”.

In Clause 2, “Interpretation”, “health and social care data” is defined. The NAT’s concern is that this definition of health and social care data could be interpreted to exclude non-clinical, demographic data that relates to an individual—for example, home address and family details—from the scope of the NDG’s guidance. Individuals do not distinguish between the kinds of information that they provide to health and social care services and, of course, expect all their information to be treated confidentially. Polling undertaken by NHS Digital recently found that the general public consider it as important that the NHS keeps their address confidential as their clinical information. I would be grateful if the Minister could give a clear assurance that the wording of the Bill, particularly at Clause 2(6), includes within the scope of health and social care data, and thus of the National Data Guardian’s guidance, all data, including non-clinical data, held on individuals by health and social care bodies.

The National AIDS Trust talked about asking to have the Bill amended. That is almost certainly not necessary but I would like the assurance that it seeks. I would also like to be assured that the definition, and the clarity that is required in regulation, is there. This is one of those Bills where the regulations are going to be very important. I hope the Minister will be able to assure the House that, when the regulations are drafted, a proper consultation, including with Members here who have expressed an interest, takes place.

Finally, I entirely agree with the noble Baroness, Lady Kidron, about the value of NHS data. It is of value to patients and families, but it is also hugely valuable to organisations that want to exploit it and, if they do so, that should be for the benefit of the NHS, not for private benefit. I suspect that the Bill is not the place to solve that problem, but the noble Baroness was absolutely right to put that issue on the record. We had a very good debate a few weeks ago about precisely this matter, which a group of us wants to discuss with the Government on a cross-party basis: how we ensure that the nation as a whole benefits from the fantastic NHS database that we have in this country because our NHS has existed for so long. It should benefit not only us but the whole world. I also echo the noble Baroness’s question about PALS and children.

Noble Lords on these Benches absolutely support the Bill. We welcome it, we want it to speed through the House, and we look forward to the discussions that we probably need between now and its final stages.

10:51

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord O'Shaughnessy) (Con)]

My Lords, it has been with great interest and pleasure that I have listened to the discussion on this important Bill, introduced by my noble friend Lady Chisholm, and I speak on behalf of the Government in support of it here today. I join other noble Lords in congratulating my honourable friend Jo Churchill on her efforts in introducing the original Private Member’s Bill and on being a mainstay in keeping attention on it after it fell at the last election; my honourable friend Peter Bone, who has worked closely with Jo and many others in the other place to get the Bill to this point; and my noble friend Lady Chisholm on introducing it so lucidly and bringing to life the importance of its provisions.

I also join other noble Lords in recognising the enormous contribution that Dame Fiona Caldicott has made to the area of data safety and security in the health and care service. As the noble Lord, Lord Patel, pointed out, over many years she has had a profoundly positive impact in this area. The Bill’s purpose, and in some ways its genesis, rests on her work and desire to put the issue even more front and centre than it is today. I thank her profoundly for that.

At the heart of our discussion today is maintaining and strengthening the public’s trust in the appropriate and effective use of health and social care data. The interests of patients and the public are at the heart of this Bill and the reason why it is such an important piece of legislation. As we reflect on it, I think it is important to bear in mind two truths. The first is that the NHS remains the most trusted institution in the country for holding and using data. That was confirmed by recent research by KPMG. The second is that in England, we have a world-class, comprehensive health system offering a unique opportunity to bring together an unrivalled, diverse, longitudinal dataset on the health and care of more than 55 million people. Let me be clear: we need to protect the first truth, otherwise we will not realise the extraordinary benefits provided by the latter. Giving the NDG a statutory footing is an important part of realising the same, because we will underpin the trust we need to deliver the healthcare transformation that we all want to achieve.

As the noble Baroness, Lady Kidron, and the noble Lord, Lord Knight, pointed out, the potential gains in front of us from the digital revolution are enormous: improving outcomes for patients, making the health system safer and more efficient, and improving research so that patients benefit more quickly from medical breakthroughs. To secure these benefits, we need to appreciate and act on people’s concerns about how their data is used, who it is shared with and whether that is lawful. People want to understand, and have more control over, how their data is collected and used, and to see the benefits being realised for themselves, other patients and the health system more widely.

The noble Baroness, Lady Kidron, makes an excellent point about the value of data and points out some of the concerning behaviour that we have seen in recent history. I agree with the noble Baroness, Lady Thornton, that the Bill is not the right place to deal with those issues, but there is a concerted effort—heavily influenced by the NDG—going into what is the proper way to value the NHS data asset and then realise that value in a fair way that maintains the public’s confidence. We had a fantastic debate instigated by the noble Lord, Lord Freyberg, about six weeks ago on that topic. In that time, we have published a new code of conduct on data driven technologies, and there will be much more to come. I look forward to working with the noble Baroness on developing that.

As the noble Baroness, Lady Walmsley, reminded us, the ghost of care.data is always present at this feast. Experience tells us that public confidence in the Government’s ability to hold, share and use data cannot be taken for granted. If data and information are to be used effectively and their great potential unlocked, we need to strengthen the public’s confidence in the safeguards in place to protect it from inappropriate use. Of course, this is a time of great technological change, and new uses of data are transforming the type of care that is possible to deliver. There are exciting government initiatives to make the best of this opportunity: local health and care records, global digital exemplars and digital innovation hubs. Meanwhile, academics, clinicians and life sciences companies of the kind mentioned by the noble Lord, Lord Knight, are developing pioneering digital therapies and algorithms that will utterly transform healthcare in the years ahead.

Last week, the Government published the Secretary of State’s new vision and a standards document on the future of healthcare, describing a more tech-driven NHS so that the health and care system can make the best use of technology to support preventive, predictive and personalised care.

The potential is here today, but to fully enjoy its fruits, we need to put in place a bedrock of reassurance. That means improving cybersecurity, as well as clear rules around privacy and data sharing. The National Data Guardian is an essential stratum in this bedrock. It is one safeguard that we already have in place to ensure that the interests of the patient are front and centre of all our deliberations about the best way for the NHS and the UK economy to make the most of those innovations.

Let me be clear, if I have not been already, that the Government strongly support the Bill. As my noble friend Lady Chisholm pointed out, it was a manifesto commitment of my party at the election. By supporting the Bill and putting the NDG on a statutory footing, we are playing our role in ensuring that it has the powers needed to make an even more positive contribution in future, allowing the office to effectively advise and challenge the healthcare system. As such, it represents a significant moment in our efforts to maintain and strengthen the public’s trust in the proper use of health and care data.

The Government want the Bill to succeed. I am confident that it will achieve the aims that my noble friend Lady Chisholm set out. The NDG will, as it has to date, work in concert with the Information Commissioner. There has consistently been cross-party support for the Bill, which I welcome in our debate today, as well as support from professional organisations within the health and care sector, as the noble Lord, Lord Patel, reminded us. I hope that it will make swift progress through its remaining stages.

Let me just deal with some of the questions raised today and, I hope, provide the reassurance that noble Lords are looking for. The noble Baroness, Lady Thornton, asked about demographic data. I can confirm to her that where issues surrounding demographic data have the potential to impact on or form part of the processing of health and adult social care data, this would fall within the NDG’s statutory remit and it would be able to publish formal statutory guidance on the topic, with organisations having a corresponding legal duty to have regard to that guidance. I hope that that provides the reassurance that she was looking for.

The noble Lord, Lord Knight, and the noble Baroness, Lady Kidron, asked about children’s social care data. Children’s health data is of course covered in the remit. The reason that their social care data is not is that it has its own safeguards and protections which operate within a different legal framework and is governed by its own statutory guidance. However, I can tell noble Lords that my department and the Department for Education have reached a sensible interpretation of the Bill which would not preclude the National Data Guardian engaging constructively with the DfE on adult social care data and its interaction with or effect on children’s social care data. There has been an exchange of letters between the departments to formalise this agreement. I am happy to provide more reassurance on that front, but what I can say now is that this relationship is already being developed and we are finding a sensible way to interpret the powers within existing regulatory frameworks to make sure that there is a much more joined-up system. I should also mention that the Department of Health and Social Care is working closely with the Home Office on its online harms White Paper so, again, we are making sure that there is a cross-government approach to dealing with this issue.

I will just quickly deal with some of the other issues that have been raised. The noble Baroness, Lady Kidron, asked about the duty of health providers. They have a duty to have regard to this statutory guidance, but this is of course the sort of thing that is inspected by the CQC and NHSI. It is worth pointing out that when the National Data Guardian provided her feedback on the WannaCry attack, it directly led to 10 data standards that are now embedded in the NHS contracts, so that gives you a sense of the kind of response that the system has to the high-quality advice that comes from the National Data Guardian when there are problems. I confirm to the noble Baroness that it will be up to the National Data Guardian to decide on her priorities.

The noble Baroness, Lady Walmsley, asked about the national data opt-out. I tell her that we ran an extensive public campaign in May, which has continued from then. It is now much easier to opt out oneself rather than, as she pointed out, having to go through GPs as in the past, which not all GPs were wild about, it has to be said. Nevertheless, the service is in a public beta at the moment, so we are honing and improving it and are always keen to have feedback. One thing that I found reassuring about the introduction of the new single data opt-out is that we have seen people who have previously opted out who are now opting back in. I find that rather encouraging; it is quite a good metric of whether we are doing the right thing. I therefore think that there is some cause for encouragement but I of course take the noble Baroness’s advice seriously.

In terms of how this relates to Wales, it will be up to the Welsh Government to implement with the same statutory force that the NDG will have in England, because health and care are devolved issues. That is something that the noble Baroness may be keen to impress upon the Welsh Government.

On the costs of implementation, all authorities have a responsibility to take standards into account—that is part of their normal, everyday life—but I should point out that there are major investments going into the IT space in health and care. For example, a big investment, which was centrally funded, has gone into replacing unsupported IT systems following the WannaCry attack. So there is central funding support for some of these changes.

Helpful advice and guidance is something that I would need to speak to Dame Fiona about personally. I am sure that she would be willing to provide it; it is certainly within her ability to do so and she is not precluded from that.

To conclude, I hope that I have been able to reassure all noble Lords that the Government take seriously and are dealing with the points that they have raised. This Bill is an essential building block in the foundation of trust that we need to have in this country in order to make sure that the public are with us on this extraordinary technological journey that we are on at the moment, which will transform the way that we deliver health and care and will deliver radically better health outcomes for patients. That is something that I am sure we all want to see. I close by once again thanking my noble friend Lady Chisholm for introducing this Bill. I look forward to its swift passage through this House.

11:03

[Baroness Chisholm of Owlpen]

My Lords, I thank noble Lords for their contributions today and support for this Bill. I must say, my life this morning has been made much easier, because my noble friend the Minister has answered all the questions raised, which I thought I was going to have to do. I feel that I have got off rather lightly, and he has done it so much better than I could have.

The NDG Bill is significant at a time when we must ensure that we maintain and strengthen public/patient support on the use of data for health and social care. As your Lordships know, it is in the greater use of technology and the integration of health and social care that the future of healthcare lies. I look forward to continuing dialogue with your Lordships as the Bill progresses. I ask the House to give the Bill a Second Reading and beg to move.

Bill read a second time and committed to a Committee of the Whole House.

Duchy of Cornwall Bill [HL]

2nd reading (Hansard): House of Lords
Friday 26th October 2018 Lords Chamber

Second Reading

11:05

Moved by

[Lord Berkeley]

That the Bill be now read a second time.

[Lord Berkeley (Lab)]

My Lords, I declare an interest: I live with my wife in the Isles of Scilly; she has lived there for over 40 years. I have been following royal transport costs for many years and make no secret of my opinion that some of the Royal Family’s transport costs have been justified and are seen to be frugal, but some are excessive, including a charter flight to Saudi Arabia for a funeral.

The point of the Duchy of Cornwall is clearly to provide an income for the heir to the throne. We can dispute how much is needed and whether the confused and non-transparent operation of the Duchy is justified to achieve this. As the Duchy has been telling us for many years, it is a private estate and private estates often provide income for their owners in a transparent and non-discriminatory manner. I note that this Bill requires the consent of both the Queen and the Duke of Cornwall. I question why the Duke of Cornwall: is there not a conflict of interest? I do not think we will get that far, but it is an interesting question to debate.

I think this is the fourth time I have put down this or a similar Bill. This is simpler than previous ones and seeks to concentrate on what I think are the most important issues to be addressed. I argue that because the Duchy now firmly says that it is in the private sector, it should be treated as such. I am also very grateful to Dr John Kirkhope, an eminent scholar and notary public who has spent years examining the Duchy issues and helped with the Bill and what I am going to say.

The trouble is, the Duchy sometimes chooses to be treated as a private estate and sometimes as a Crown body, which receives privileges and is largely unaccountable and silent on many issues. It is wrong that the Duchy should be able to choose its own status based on what is apparently the most financially advantageous option. It should be one or the other—and it has chosen the private option. My Bill is designed to put that option into effect, making it a private estate with no special privileges. I emphasise that the Bill is not about the Duke of Cornwall per se, apart from the first clause. I should also tell the House that a year or two ago, when I previously put forward a Bill, I had a meeting with Duchy officials. We went through all the clauses in that Bill, which was very similar to the Bill today, and, at the end, I asked if they agreed with what I had said and they replied “Yes, largely”. Then when I asked if they would say so in public they said, “No”. I wrote to them again before today asking if they would like to discuss this Bill and I did not get a reply. So there we are. We ought to compare what the Duchy of Cornwall does with what the Duchy of Lancaster and the Crown estates do, which are much more transparent and open.

Clause 1 is on the succession to the title “Duke of Cornwall”. We have debated this in the past and I could go on about it for a long time. The key thing is that it should be open to women as well as men; I am not quite sure whether they would be called the Duchess of Cornwall, but it does not matter that much. The point is that they should have the same privileges and rights as the Duke of Cornwall. After all, the Duke of Lancaster is always the sovereign, regardless of gender, so why should that not apply to the Duke of Cornwall? We can debate that, and I am sure that when the Minister replies he will go back to the royal charter of 1842, although it probably goes back to long before that. But I will not get into that now, because there are many important things that I need to put to the House.

Probably the most important issue is Crown immunity, which is addressed in Clause 2. To illustrate the lack of transparency, a friend of mine who has been trying to buy his house in the Isles of Scilly under the right to buy, and other colleagues, put in 64 freedom of information requests about the Duchy and the Crown immunity issue. I will give only one example. In August 2011, they asked the Ministry of Justice:

“Please provide any papers which explain the basis on which the Duchy of Cornwall enjoys Crown Immunity”.


At least the ministry answered it, but its answer was: “We do not hold any material which you request”. So how can they do it?

There are other examples in various Acts of Parliament which need to be considered. One is the Marine and Coastal Access Act 2009. It states that the provisions of the relevant part of the Act “bind the Crown”, which includes the Duchy of Cornwall, and that:

“No contravention by the Crown of any provision of this Part is to make the Crown criminally liable”.


The Data Protection Act gives the same information, and Section 14 of the Nuclear Explosions (Prohibition and Inspections) Act 1998, the Transport Act 2000, the Licensing Act 2003, the Planning and Compulsory Purchase Act 2004—I have nearly finished—and the Planning Act 2008 all contain the same exemptions.

Most people would find it odd that if the Duchy of Cornwall caused a nuclear explosion—which is highly unlikely—it would not be subject to criminal sanctions. Surely, it is a pretty remarkable state of affairs that an estate that asserts it is private is given exemptions from criminal sanctions under numerous Acts of Parliament, should it act in breach. I can go on about Crown immunity but I will not, because I would like to move on to tax.

We have debated in your Lordships’ House many times the issue of tax and the Duchy of Cornwall. The Duchy pays tax on a voluntary basis, but no other estate that I know of in this country does so. I do not know how many other noble Lords pay tax voluntarily—we would probably all like to—but the fact remains that the Duchy should be assessed and treated in the same way as any other estate or private individual.

Clause 4 addresses exemptions under the Leasehold Reform Act. As noble Lords will know, there is a consultation out on this at the moment. I have a friend who has been trying for many years to buy a property in St Mary’s on the Isles of Scilly, and he has completely failed. He has responded to the consultation and I hope he will be successful. This goes back to the issue that the Duchy of Cornwall is not bound by the Leasehold Reform Act because it has an exemption. You can understand the need for an exemption for London’s Royal Parks and other national parks and buildings, but some not very special houses on the Isles of Scilly—I am sure my friend would agree with that assessment—have this exemption and my friend is not allowed to buy his house. Whatever we think of the Leasehold Reform Act, the fact remains that everybody should be treated the same, but in this case they are not.

I think the Duchy will like Clause 5, as it would enable it to purchase land in the UK outside England. Why is there a restriction? I am told that it is a hangover from Victorian times, because of very different land and inheritance laws in Scotland at the time. Apparently, Balmoral was purchased in the name of Prince Albert because, despite the fact that Victoria was Queen, as a female she could not own land in Scotland. I am sure that many noble Lords will know more about this than I do, but that is what I am told. After the death of Prince Albert, the Crown Private Estates Act 1873 was passed to rectify the situation.

Clause 6, on the Stannaries Act, is a bit of a Cornish situation; not many people know about Cornwall’s stannaries. It is time to remove this Act because under it, the Duchy can appoint anyone to be a Duchy solicitor or barrister; they do not have to be legally qualified. That seems unnecessary. The Law Commission recommended that this provision be repealed, and I am told that the Crown lawyers, Farrer & Co, objected. They would, wouldn’t they? They would probably lose revenue if the cases ever came forward. That is another classic conflict of interest, but it is time to move that one on. The same applies to the Solicitors Act 1974.

The issue of the Treasury Solicitor is a serious one. The Duchy is a private estate. Which other private estate gets free legal advice of unlimited quantity—and, presumably, quite good quality—from the Government’s lawyers? I know several people who have had disputes with the Duchy. There was a case concerning the Helford river, which I think we have discussed before. A friend of mine won his case against the Duchy, probably because the Duchy’s representative said, “We believe we are above the law”, or something like that; but of course, when the Treasury Solicitor got involved he lost on appeal, which is no great surprise.

[Lord Adonis (Lab)]

My noble friend referred earlier to the tax position of the Duchy of Cornwall and the fact that it pays tax on a voluntary basis. My understanding is that the revenue surplus of the Duchy of Cornwall has increased by 50% in the last seven years and that its property asset base has increased from £630 million in 2011 to £940 million in 2018, which is a huge increase. Does my noble friend have the figures for what the increase in the voluntary tax paid by the Duchy of Cornwall has been in that seven years? I cannot find them. Has there been a 50% increase in the tax paid by the Duchy of Cornwall to the Treasury over that period? If my noble friend does not have the figures, it may be that the Minister, who is in full command of all the figures to do with the Duchy of Cornwall, could tell us.

[Lord Berkeley]

I am most grateful to my noble friend for that question. He will not be surprised that I do not have the answer to it. Of course, we are not talking only about income tax—it is about capital gains tax and everything else as well. We can do an FoI on it, but I suspect that it will take a long time, and that is part of the lack of transparency. I very much doubt that similar estates are subject to the same exemptions, so it is a very good question.

I think it is time that the apparent right to Crown immunity for this private estate, with the privileges that it seems to enjoy without any clear basis, came to an end, and my noble friend’s question is very germane to that. The Duchy asserts, as it is entitled to do, that it is a private estate, yet to avoid a suite of laws and because it would not be seemly for the Duchy to be seen in court, it has been granted taxation privileges and property rights and—a procedure that continues today, I think to the detriment of other taxpayers and also to some of the residents—has no parliamentary approval or judicial oversight. It is also free from criminal sanctions should it break the law—something that I think is just crazy.

Let us be quite clear: this is not the Duke but the Duchy of Cornwall. The Duke of Cornwall is completely different. Various Acts of Parliament relating to tax and many other matters in relation to this private estate have been “suspended”, as it has been called. I recall that the last time I managed to question the Chief Whip, he kindly said—I think it was before the Third Reading of a Bill—that the Queen and the Duke of Cornwall had kindly put their interests at the disposal of Parliament. When I asked why, it took about six weeks to get an answer. That was not the Chief Whip’s fault; the answer probably came from the palace, but it was completely meaningless. Therefore, we really need to bring all this into the 20th century and put the situation on to a clear and transparent footing.

Noble Lords ask me: what next? That is a fair question because I am sure that this Bill will not find its way on to the statute book in this Parliament. However, the Duke of Cornwall could decide to do much of what it seeks to do on a voluntary basis. I hope that he will read today’s debate and perhaps consider what he and his successors can do in the short term to put this matter on to a more transparent footing. I beg to move.

11:22

[Lord Wakeham (Con)]

My Lords, first, I congratulate the noble Lord on his persistence. He has obviously done a lot of work and, as he said, this is the fourth time he has produced a Bill, although I think it is only the second time that any of them have been debated. That, in itself, constitutes the greatest measure of congratulations that I could give him on this Bill.

The Bill raises many important issues and, as the noble Lord realises, introduces changes that would dramatically alter the role of the Prince of Wales and the Duchy of Cornwall. At this stage, I certainly do not want to debate the substance of his Bill. I oppose quite a lot of it but I agree that some of the issues in it could well be, and probably will be, considered in the years to come.

What interests me is why the noble Lord thinks that a Private Member’s Bill is the way to deal with these issues, although in his closing remarks he rather implied that he did not think it was. In the interchange with his noble friend, they seemed not to be talking about the same thing—one was talking about assets and the other about income—and that indicates that this is a very much more difficult subject than can, in my view, be dealt with in a Private Member’s Bill.

I confess that I have some form on this matter. In the early 1980s I was one of the people involved in trying to negotiate a Bill which became the Duchy of Cornwall Management Act. Its purpose was to modernise the financial arrangements of the Duchy of Cornwall and how it made investments. The existing arrangements were very restrictive and came under a Duchy of Cornwall Act passed in the middle of the 19th century, which I am told was considerably influenced by Prince Albert. I suspect that Prince Albert and the noble Lord might have had quite a lot in common on some of the Duchy’s financial arrangements. As I am totally opposed to what the noble Lord is doing, I am trying to be as nice as I can be to him in my remarks. It is interesting to note that in the course of that research it was made quite clear to us that the Duchy of Cornwall was always far better run when there was a Prince of Wales of the right age to take a proper interest in the estate, and for hundreds of years that has been the position.

Faced with having to decide how to deal with the Duchy of Cornwall’s finances, we felt that the first thing we should do was consult. I spoke to the then Labour Chief Whip, the great Michael Cocks, who told me that he wanted a meeting with Prince Charles’s private secretary, Edward Adeane. We arranged a meeting, at which I provided the drinks and the charming Edward Adeane produced a paper. Michael read it very carefully and then looked up and said, “Who wrote this unstructured drivel?”. Actually, the word he used was rather stronger than that but I was advised that parliamentarily I should not say it. The Labour Chief Whip was not opposed to what we were trying to do, and in fact he eventually agreed to it. He was trying to say that it was not possible for one party to change the rules that govern our monarchy and the Duchy and so on. In our society, it could be done only through all-party agreement. He told me in no uncertain terms that the Bill we wanted to bring in did not stand a chance unless I had got the Opposition to agree that it was a sensible thing to do. We worked at it and did our best. It was not difficult to reach a compromise, as the Labour Chief Whip was not really opposed to what we were trying to do, and we got the Bill through the House of Commons in spite of the republican remarks of the great Willie Hamilton, whom some people will remember.

The lesson is quite clear: if you want to make changes to our monarchy and the way that the Duchy of Cornwall is run, it has to be done with all-party support. That means consultation with all the parties before bringing in a Bill, as well as consultation with the Commonwealth, the Churches and many others. I am not unsympathetic to some of the things that the noble Lord wants and I suspect that they will happen in the next 20 or so years, but my view is that it is not sustainable to bring about those changes through a Private Member’s Bill.

11:28

[Lord Adonis]

My Lords, because of the great respect and loyalty that we have for Her Majesty the Queen and the Prince of Wales, we pay little attention to the royal finances and royal income, but I think it is time that we started to do so because the situation is very unsatisfactory and is becoming more so. I wish to make a few observations on my noble friend’s Bill, which, although it clearly will not pass, performs a great public service in bringing the issue of the Duchy of Cornwall and the wider royal finances to the attention of the House and giving us the opportunity to debate them.

The first point to make is that the position of both the Duchy of Cornwall and the Duchy of Lancaster is highly anomalous. The deal done in 1760, when George III came to the Throne, was that the Crown would surrender the Crown Estate, from which of course prior to that the monarchy had enjoyed the full income, in return for a settlement with Parliament on the royal finances. That situation continued until 2011 and the passing of the Sovereign Grant Act, to which I shall return in a moment, as it is crucial to understanding what has gone wrong with the royal finances in the last seven years. However, an equivalent deal was not done in respect of the Duchy of Cornwall and the Duchy of Lancaster, which clearly should have happened. There is no reason why a set of historical estates, which just happen to be a function of long history, should rest in the Crown, totally unrelated to the income requirements of the monarchy, and of course the heir to the Throne is part of the monarchy.

My noble friend referred to a lack of transparency. I agree that that is an issue, but a big issue also is the fact that there seems to be no relationship whatever between the income enjoyed by the Duke of Cornwall and the requirements of the office of the Duke of Cornwall for the income.

The noble Lord, Lord Wakeham, said that I was confusing capital and revenue. I was not. My analysis of the accounts of the Duchy of Cornwall found that both the capital and the revenue have increased substantially in recent years. The figures I gave in my intervention are striking. The capital base of the Duchy of Cornwall has increased from £630 million to £940 million in just the last seven years, and the revenue enjoyed by the Duke of Cornwall has increased by a similar proportion. My questions for the Minister are these. First, how does he justify this? Secondly, what contribution is being made in voluntary tax—and in my view it should not be voluntary; I see no reason at all why the Duchy of Cornwall should pay tax on a different basis from any other estate in the country—and what has happened to that tax revenue?

The other substantial income of the monarchy is the sovereign grant, which used to be called the Civil List. That situation appears to have become seriously out of sorts in the last seven years. In 2011, a peculiar deal was done between George Osborne, who was then Chancellor of the Exchequer, and the Keeper of the Privy Purse to end the previous system of the Civil List, which as I said went back to the 18th century, and to replace it instead with a formula whereby the monarchy would be funded by 15% of the net revenues from the Crown Estate. There was no basis for this formula, because of course the Crown Estate was no longer the Crown Estate in anything other than name—it is part of the ordinary income of the Treasury. It was done for effect more than anything, I think, to try to establish some connection and to put the royal finances substantially beyond the process of annual negotiation with the Treasury and with Parliament. These was no other basis at all for doing it. Indeed, when the Sovereign Grant Bill was debated in your Lordships’ House on 3 October 2011, the noble Lord, Lord Turnbull, who is deeply familiar with the royal finances, said that,

“the link with the Crown Estate … is pretty artificial as there is no relationship between the net income of the Crown Estate and the funding of the monarchy, and there has not been since 1760, when the hereditary revenues of the Crown Estate were first surrendered”.—[Official Report, 3/10/11; cols. 966-67.]

Leaving aside the formula, it is its impact that ought to be of concern to the House. When setting out the formula in 2011, George Osborne said that the effect would be to keep the income of the monarchy roughly stable. On 14 July 2011, he said in the House of Commons that,

“the important thing, is that the amount of money going from the public purse to the royal family will be broadly the same … We can have a debate about the mechanism”—

that is, the new sovereign grant mechanism—

“but the effect will be pretty much to continue through this Parliament with the sums that they were getting during the last one”.—[Official Report, Commons, 14/7/11; cols. 541-42.]

He went on to say that, because of efficiencies, there would be a 9% net reduction over the course of the last Parliament. That did not happen. On the contrary, the reverse happened: the baseline income that the Royal Family received in respect of the Civil List, which was £30 million in 2011, went up to £36 million in 2013, £39 million in 2014, £40 million in 2015, £42.8 million in 2016, and last year it was £76 million. The £42.8 million figure was a 38% increase in a settlement that was presented to Parliament as a steady-state settlement in a period which, I need hardly remind the House, was one of great austerity in the funding of other parts of the public service.

Far from improving, the situation got worse last year, because of the suddenly announced decision—which was not debated in your Lordships’ House at all—whereby the formula for the allocation of the Crown Estate to the funding of the monarchy was, overnight, increased from 15% to 25% to accommodate the refurbishment costs of Buckingham Palace. I could make a whole speech on the cost estimates and the refurbishment of Buckingham Palace, which have been subject to no parliamentary oversight whatever. The initial projection made to Parliament in a Select Committee appearance by the Keeper of the Privy Purse was that the refurbishment would cost about £150 million. The last figure on which the calculation of the increase from 15% to 25% took place was £368 million—a more than doubling in the cost. We think that the renewal and refurbishment—or whatever it is called—of the Palace of Westminster is out of control, but proportionately, what is going on in Buckingham Palace is far worse. But because we do not debate these issues and there is no relevant parliamentary committee or any oversight process whatever in respect of the royal finances, it is entirely shielded from public view.

The 25% figure is entirely arbitrary—it looks to me as if it was done on the back of an envelope, because it is a round figure. That 25% has already taken the allocation from the Crown Estate to the Royal Family from £30 million in 2011 to £76 million in 2018. The projection is that it could go up by £10 million, £20 million or £30 million in the next five to 10 years. It depends entirely on what happens to London property prices, which is where the bulk of the Crown Estate is. Although Brexit is having some effect on London property prices, noble Lords will be aware that they are pretty resilient.

The arrangement that was made in 2011 has become a one-way ratchet for a significant and extra-parliamentary increase in the revenues of the Crown. As if that is not enough, the arrangement under which this formula is calculated provides that there can be no diminution in the income going to the Crown. If that happens, under the Sovereign Grant Act the Exchequer will simply make up the difference. It provides also that the formula that set the 15% and then revised it to 25% is set by a committee of commissioners of the Crown: the Prime Minister, the Chancellor of the Exchequer and the Keeper of the Privy Purse. They are three very worthy people, and I admire them all, but no one can pretend that this is an open and accountable process subject to parliamentary control.

The Minister is always immensely well briefed when he appears before the House, and I hope he will be able to comment on what I have said, and provide us with the justification for the 15%, the 25% and what is happening to the tax paid in respect of the Duke of Cornwall.

My final comment is simply to quote the noble Lord, Lord Luce, who enjoys great confidence in the House as a former Lord Chamberlain, and who has performed great service to the state while in government and to the Royal Family. When the Sovereign Grant Bill was presented to the House on 3 October 2011, he said that,

“the monarchy must set an example of restraint and prudence in expenditure, especially in tough times”.—[Official Report, 3/10/11; col. 971.]

I completely agree. However, the exact reverse has happened and the situation is very unsatisfactory.

11:38

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

My Lords, I thank the noble Lord, Lord Berkeley, for introducing the Bill and for the comprehensive way in which he opened the debate. We welcome the Bill. As the noble Lord, Lord Wakeham, and the noble Lord, Lord Adonis, suggested, I do not suppose that the noble Lord, Lord Berkeley, expects his Bill to sail on to the statute book, but that does not stop us discussing its principles in a Second Reading debate on a Private Member’s Bill.

I handled for my party the Succession to the Crown Act 2013, which provided principally that succession to the Crown should not depend on gender, as well as removing the unjustified and discriminatory disqualification from the succession by marriage to a Roman Catholic, a disqualification that dated from the late 17th century and the conflict about the departure from the Throne of James II and the accession of William and Mary. The Succession to the Crown Act was passed by the legislatures of all the Queen’s realms in a complicated exercise of diplomatic co-ordination when the Duchess of Cambridge was expecting a child. It was passed in time for the newborn, whichever gender it happened to be, to take a confirmed place in the line of succession and not be liable to future demotion if the child was a girl. As it happened, he was a boy, and Prince George duly became third in line to the Throne, but the Act has had the effect that Princess Charlotte comes next, notwithstanding the birth of a younger brother, and that is as it should be.

Clause 1 of the Bill of the noble Lord, Lord Berkeley, replicates that Act in its removal of gender preference for the title of the Duke of Cornwall. The present rule, embodied in the 1377 charter, is an arbitrary and discriminatory preference, which is a hangover from the 14th century, and it is high time for its removal.

One might say the same about the rest of the hereditary peerage—that daughters should inherit on the same footing as sons—and that the present arrangements in most letters patent are also discriminatory and quite unacceptable in a contemporary context. The noble Lord, Lord Lucas, certainly takes that view and introduced a Bill to reform the system in the 2012-13 Session, although the Bill never proceeded. I, and no doubt many others, can see why the Government may not see this kind of reform as meriting a high place on their legislative agenda, because it affects only a limited number of families and usually highly privileged ones at that. But the question does arise as to how far and for how long we should tolerate this kind of blatantly unfair discrimination, in spite of its limited application. The noble Lord, Lord Berkeley, is quite right to challenge it in this Bill in the context of the Duchy of Cornwall.

Clause 2 would remove Crown immunity from suit for the Duchy of Cornwall and we agree that there is no reason for Crown immunity to extend to the Duchy. The only proper purpose of Crown immunity is to give immunity from suit to the sovereign and to organs of government in certain tightly defined circumstances which Parliament has sanctioned, as set out in the Crown Proceedings Act 1947. As the noble Lord said, the Duchy is effectively a body in the private sector and there is no earthly reason why Crown immunity from suit should extend to the Duchy of Cornwall.

Again, Clause 3 would remove the anomalous exemption from tax for the Duchy, which was the subject of much of the speech of the noble Lord, Lord Adonis. Under the present arrangements, tax for the Prince of Wales is an entirely voluntary matter, as is tax for the Duchy estate, and the estate is immune from income tax, corporation tax and CGT. The Prince of Wales does not pay voluntary tax on any increase in asset values as the Duchy is a royal body and the Duchy is the owner of the assets. I do not regard that as a desirable or defensible state of affairs. Many would say that the right to the very substantial income of the Duchy is good fortune enough without its being compounded by the Prince’s only paying tax on an entirely voluntary basis. The income of the Duchy is now well in excess of £20 million a year. The Prince pays voluntary income tax of about £4.9 million, but only on his income after meeting the expenditure on royal duties, and no CGT, as I said. Those are substantial sums, and substantial sums of tax forgone are involved.

If the Duchy’s income is to go to maintain the Prince of Wales and his household, then so be it. But why there should also be a tax break for the heir to the Throne, I entirely fail to see. The Royal Family has done great things to pull itself into the 21st century. Not being required to pay tax on income in the same way as other citizens do is likely to feed controversy and questioning and bring the institution into disrepute. Nor is there any reason why the Duchy should be immune from claims by its leaseholders under the Leasehold Reform Act when they want to secure the freeholds or long leases on their homes—a reform that has been broadly welcomed and has worked well over many years for private landlords..

Closer to home for me, Clause 7 would remove access from the Duchy to the Treasury Solicitor. I see no reason why the Duchy should have access to the publicly funded legal services of the Treasury Solicitor— effectively, the Government’s legal department. We have had enough trouble with legal aid cuts for the vulnerable. Why we should be providing extensive legal aid to the Duchy of Cornwall escapes me.

For the monarchy to thrive, it needs to be contemporary, understood and trusted by the public. Maintaining discriminatory rules of succession, unfair immunities from tax, an out-of-date exemption from the Leasehold Reform Act and publicly funded legal services for the heir to the Throne is not a great way forward, and we need to start changing the rules.

11:44

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I also congratulate my noble friend Lord Berkeley on his perseverance on this matter, on today’s Bill, and on his fascinating introduction, which was then reinforced by my noble friend Lord Adonis’s speech. Along with the noble Lord, Lord Marks, I am delighted to be able to return to the issue covered in Clause 1 of the Bill because it follows a long discussion that we had back in 2013 when we were dealing with the Succession to the Crown Act prior to the birth of Prince George. Indeed, I have to confess that I was personally rather disappointed by his gender when he appeared as it delayed the impact of the Act to which we had put in a fair number of hours. Nevertheless, the Act does mean that the young Prince Louis does not overtake Princess Charlotte in the batting order, so we achieved something.

It seems eminently sensible to amend the existing rule passing the Duchy of Cornwall title to the eldest male child of the monarch given that at some future date this may no longer be the heir apparent. If the income is indeed needed to help prepare the future sovereign for their role, then surely that and the whole training that goes with running that estate should be with the heir to the throne and not to her younger brother in those particular circumstances.

A very helpful Lords Library research paper reminded us that the then principal private secretary to the Prince of Wales confirmed that the charter could be amended, so this seems an excellent moment to put that in train. I am afraid that when the noble Lord, Lord Wakeham, talked about doing something in 20 years’ time or so, my heart failed. We have had enough of kicking tin cans down the road. If something needs fixing, let us fix it now.

On the taxation immunities, the other aspect of the Bill that has been well covered, that matter could appropriately go to the constitutional convention that my party has long sought because it deals with some important constitutional issues. That would also reflect the advice of the noble Lord, Lord Wakeham, to do these things on a cross-party consensus basis. The difference between us is probably that we think we should get on with it and his feeling was to forget about it for now.

There is one aspect, however, that the Minister could clarify when he comes to respond—one already described about the Duchy’s exemption from the Leasehold Reform Act, which prevents leaseholders buying the lease in the way that they could from any other landlord. Given that the noble Lord, Lord Bourne of Aberystwyth, has just announced a review of this very issue of leases on houses, and put them in the very capable hands of our colleague, the noble Lord, Lord Best, who is not in his place at the moment, might this specific case also be referred to that group so that it could be looked at in a timely manner? It involves the individual property rights of UK citizens, so it warrants some close and more urgent scrutiny than perhaps some of the other measures might achieve.

I want to reflect on one of the other issues raised by the noble Lord, Lord Wakeham, which is whether a Private Member’s Bill is the right mechanism for this. When the Government fail to act on something that needs to be done, it is a very appropriate way for your Lordships’ House to do it. Indeed, shortly we will move on to another Bill that seeks to implement something which the Government want to see but cannot find legislative time for, so therefore it is being taken through in a Private Member’s Bill. On occasion it seems highly appropriate to use this mechanism for something that needs to be done. As I say, it is better than waiting another 20 or more years.

I look forward to the Government’s response, in particular on their plans for changing the gender rules as regards the inheritance of this title and therefore its assets so that they will indeed go to the heir to the Throne, especially when the heir is a woman.

11:50

[Lord Young of Cookham (Con)]

My Lords, I am grateful to the noble Lord, Lord Berkeley, for raising once again this important issue. He has brought these measures forward in a number of guises and is a true crusader for reform in this area. I thank all noble Lords for their valuable contributions to the debate, in particular my noble friend Lord Wakeham for putting the issue in a broader historical context and for explaining the basis of the current settlement. He also stressed the importance, a point underlined by the noble Baroness, Lady Hayter, of trying to seek a consensus before we make changes in this area.

Every day we say a prayer for the Prince of Wales, prospering him with all happiness. I am sure that nothing which has been said in this debate will go against the daily injunction we are given by the right reverend Prelates. The Duchy of Cornwall is an important institution. Since it was established in the 14th century, the Duchy’s main purpose has been to provide an income that is independent of the monarch for the heir apparent. The land, property and other assets of the Duchy and the proceeds of any disposal of assets are subject to the terms of a number of Acts, including the Duchy of Cornwall Management Acts 1863 to 1982, the combined effect of which is to place the Duchy’s assets in trust for the benefit of the present and future Dukes of Cornwall and to govern the use of the assets.

The current Prince of Wales chooses to use a substantial proportion of his income from the Duchy to meet the cost of his public and charitable work. The Duchy funds the public and private lives of five other adult members of the Royal Family—the Duchess of Cornwall, the Duke and Duchess of Cambridge and the Duke and Duchess of Sussex.

Turning to Clause 1, the noble Lord, Lord Berkeley, and others have raised the matter of the inheritance of the Duchy of Cornwall. The issue of gender equality is a priority for this Government and quite rightly the matter has been raised again today. Noble Lords are correct to say that at present the title can pass only to the eldest son and heir of the monarch. Thus, when the Queen was heir presumptive to the throne, she did not hold the title of Duke of Cornwall and the Duchy lands were vested in her father, the sovereign. The mode of descent specified by the Charter of 1337 is unusual and differs from that which commonly occurs in respect of hereditary titles. The monarch’s eldest son is automatically the Duke of Cornwall immediately he becomes the heir apparent. However, the manner of descent of the Duchy would preclude a grandson who is heir apparent from gaining the title of the Duke of Cornwall if he were heir to the sovereign because he is not the son of the monarch. With the Duchy of Cornwall we have a very unusual piece of English history that does not conform to the standard rules of descent for hereditary titles.

If we look back over recent years, there have been long stretches when there has been no eldest son to be the Duke of Cornwall, in which case the Duchy estate vests in the sovereign who oversees the affairs of the estate in lieu of a Duke. Viewed from today’s perspective, as opposed to that of the 14th century, I can understand why noble Lords have raised concerns about the descent of the Duchy of Cornwall, and indeed the Government have some sympathy with those concerns against the background of the changes made to the Succession to the Crown Act 2013 and other moves to increase equality. However, parliamentary time is currently scarce and noble Lords will agree that there are other more pressing priorities. Furthermore, given that currently there are three male heirs to the sovereign—Prince Charles, Prince William and Prince George—I do not believe that the time is right to dedicate parliamentary time to this matter when it is badly needed elsewhere. Indeed, the issue raised by the noble Baroness may not arise until the next century.

The noble Lord, Lord Marks, raised the more general issue of the succession of hereditary titles, on which I am sure a number of noble Lords have different views. However, they are not the subject of this particular legislation. Perhaps I may reassure the House that a female heir apparent will not find herself at a financial disadvantage because the Sovereign Grant Act 2011 broadly ensures that financial provision equal to the income from the Duchy is made for the heir apparent.

I turn now to the amendments on enfranchisement which are of particular interest to many in this House and to myself as a former housing Minister. The Leasehold Reform Act 1967 gives leaseholders the right to purchase a property from the landlord if certain circumstances are met. The Leasehold Reform, Housing and Urban Development Act 1993, which I put on the statute book, gives the tenants of flats in a building the right to collectively acquire the freehold of that building, again if certain conditions are met. The Act also provides the right for a tenant to extend the lease if certain conditions are met. Both Acts exempt the Duchy of Cornwall and other Crown lands from these provisions. This is because the capital raised from the Duchy cannot be distributed and is reinvested in the Duchy; the Duke of Cornwall receives funds only from the surplus. The general exemptions are important to protect land and property associated with the Crown and to ensure that the Duchy continues to perform its role for future Dukes.

However, I shall turn to what I think is the crucial point: Crown authorities have voluntarily committed, most recently in 2001, to abide by the same terms as private landlords in most circumstances. The Duchy has more than 600 residences, around 20% of which would be subject to these Acts had the Duchy not been exempted. The number of tenancies which the Duchy has sold or granted a lease extension to tenants under the terms of the enfranchisement Acts is around 120. There are some exceptions, as the noble Lord, Lord Berkeley, implied, including the historic Royal parks and palaces, property or areas which have a historic association with the Crown or where there are security considerations.

The Bill would represent a significant change to the legal status of the Duchy of Cornwall. There is a presumption that legislation does not bind Crown lands, including the Duchy of Cornwall. Removing Crown immunity for the Duchy of Cornwall could be problematic in the future. As the Duchy of Cornwall vests in the sovereign when there is no Duke of Cornwall, the sovereign has a residual personal interest in matters affecting the property of the Duchy of Cornwall. When vested in the sovereign, the Duchy of Cornwall would have a different legal status from other lands belonging to the Crown.

I turn to the tax status, again raised by a number of noble Lords. The Bill proposes that the Duchy of Cornwall will be liable to income tax and capital gains tax. Let me start by confirming the current arrangements. The Duchy enjoys Crown exemption and is not in any case a corporation within the charge to corporation tax. The Duke of Cornwall is not entitled to the proceeds or profits from the sales of the Duchy’s capital assets, which are retained in the Duchy to provide income for the Duke and future beneficiaries.

The Prince is liable to pay income tax and capital gains tax on any income and capital gains he may receive from other non-Duchy sources. In line with the Memorandum of Understanding on royal taxation, he pays income tax voluntarily on the surplus of the Duchy of Cornwall after deducting official expenditure, applying normal income tax rules and at the 45% rate. In his annual review, the Prince of Wales stated that he paid £4.85 million in the 2017-18 financial year, although this figure includes VAT, income tax and capital gains tax from non-Duchy sources. If employer’s national insurance contributions and council tax are included, the total tax paid increases to £5.3 million. Of course, the expenditure varies from year to year, as does the value of the surplus.

The tax status of the Duchy of Cornwall reflects that of the sovereign, who is also not legally liable to pay income tax, capital gains tax or inheritance tax because the relevant enactments do not apply to the Crown. The Queen also pays income tax and capital gains tax on a voluntary basis in line with the Memorandum of Understanding. Moreover, the unique nature of the Duchy of Cornwall means that, in order to produce a workable income tax and capital gains tax regime, deeming the Duchy as a settlement would not be sufficient. Further provisions would be necessary to ensure that the legislation would work effectively without unintended consequences.

In his speech, the noble Lord, Lord Adonis, focused mainly on the Sovereign Grant Act rather than the Bill before us. I will write to him in answer to some of the issues that he raised. In summing up, I again pay tribute to the noble Lord, Lord Berkeley, for pursuing this important matter.

[Lord Adonis]

What has happened to the tax paid by the Duchy of Cornwall in recent years? The Minister gave last year’s figure. Can he say how that figure has changed?

[Lord Young of Cookham]

I have the figures for only the past three years in my brief. I think that the noble Lord’s queries went further back than that, so I will write to him. I would just say that the Labour Party voted for the Sovereign Grant Act.

[Lord Reid of Cardowan (Lab)]

I want to make one comment prior to the Minister’s response to my noble friend. There may be good reasons—I can see them in principle and in practice—for insisting on more transparency surrounding the costs at Buckingham Palace, for instance, but the expectation that it will hold costs stable or reduce them is not one of them. Witness the increase in the cost of refurbishing this Parliament and the cost of the Scottish Parliament building, which was overseen by not one but two Parliaments. The cost rose from the estimate of £40 million to more than £400 million. There may be good reasons for the transparencies regarding Buckingham Palace, but the expectation that oversight by this or any other committee will reduce the price is not one of them.

[Lord Young of Cookham]

The noble Lord said that he wanted to make a comment rather than ask a question and he did exactly that.

I conclude by expressing reservations about the Bill. The Duchy of Cornwall plays an important role in providing funds to support the public and private lives of six members of the Royal Family. The Government are keen to ensure that the Duchy can continue to perform that function. Noble Lords have made informed contributions to the debate and given pause for thought. However, the Government believe that now is not the time to attempt this reform. I repeat the valid point made by my noble friend Lord Wakeham: if we make progress, it should be on a consensual basis. Considering other pressures on the legislative timetable, the Government have reservations about the prospects for the Bill in future.

12:02

[Lord Berkeley]

My Lords, I am grateful to all noble Lords who spoke. We have had a fascinating debate. I am not surprised by the comments from the Minister—or the noble Lord, Lord Wakeham, for that matter—which I would have expected.

However, this demonstrates the confusion over what is part of government and the monarchy and what is part of private ownership and businesses. The Duchy frequently says that it is in the private sector. In his response, the Minister said that if there is not a Duke of Cornwall, the Duchy reverts to the Crown, with which I agree; it therefore presumably becomes public. How can you have a body or estate that changes between public and private depending on whether there is a male Duke of Cornwall? That seems to need looking at in a bit more detail.

The same principle applies to the property of Buckingham Palace and the discussion started by my noble friend Lord Adonis about its cost. Which bits of Buckingham Palace are Crown property because it is part of our constitution and which bits of it, including all the pictures and the ornaments, belong to the Queen personally? If she were not Queen, would she still have them? I do not know, but it seems that this obfuscation could go on for another 20 years if we are not careful.

The noble Lord, Lord Wakeham, asked why the Bill is a Private Member’s Bill. My noble friend Lady Hayter responded to that, but I would say that it is because it has been a good forum for debate. If we are going to talk about the monarchy as a whole, we could include Prayers; the Minister mentioned that we pray for Prince Charles. We could have a discussion about whether we should get rid of the link between the Church and the state, but the Minister started that one and I will leave it there.

I am also grateful to noble Lords for commenting on the Leasehold Reform Act. I do not accept what the Minister said, because it is nothing to do with a private estate, but we will follow up on that in other areas. I share other noble Lords’ views that we may not get this on to the statute book in this Parliament, but the debate has been very good anyway and I thank everyone for it.

Bill read a second time and committed to a Committee of the Whole House.

Prisons (Interference with Wireless Telegraphy) Bill

2nd reading (Hansard): House of Lords
Friday 26th October 2018 Lords Chamber

Second Reading

12:06

Moved by

[Baroness Pidding]

That the Bill be now read a second time.

[Baroness Pidding (Con)]

My Lords, it is my privilege to move the Second Reading of the Prisons (Interference with Wireless Telegraphy) Bill. The Bill had a speedy and uncontroversial passage through the other place, which I interpret as reflecting the widespread support for the Bill and its important provisions. I am hopeful of a similar reception and swift passage through this House.

I begin by thanking all the Members in the other place who spoke in support of the Bill, particularly Maria Caulfield MP, who sponsored the Bill, taking over from Esther McVey MP, who originally brought the Bill forward and Sir Paul Beresford MP, who sponsored the original legislation that the Bill seeks to amend.

The legislation that Sir Paul sponsored, the Prisons (Interference with Wireless Telegraphy) Act 2012, made an important contribution to improving the effectiveness of action against illicit mobile phone use in our prisons. It provided the power for the Secretary of State to authorise the governor of a public sector prison or the director of a privately run prison to deliberately interfere with wireless telegraphy in their institution to prevent the use of illicit mobile phones or detect or investigate the use of such devices.

In practice, the existing power means that governors are able to purchase and deploy equipment to detect, block and investigate illicit phones in their prisons. Without this authority, deliberate interference with wireless telegraphy in this way would be an offence under Section 68 of the Wireless Telegraphy Act 2006. The powers are necessary given the role that mobile phones play in the illicit economy in prisons and the violence, self-harm and crime in the wider community that they drive.

On a recent visit to HMP Brixton, I heard at first hand about the serious problems and significant challenges that are caused by illicit mobile phones. There is increased ingenuity and sophistication in attempts to smuggle mobile phones into prison, taking advantage of the fact that phones are becoming thinner and smaller. They can be no larger than your thumb and made nearly entirely of plastic. Illicit mobile phones are a major facilitator in enabling ongoing criminality such as smuggling drugs and other contraband into prisons; for example, co-ordinating throw-overs or drone drops. They can be used for malicious communication such as harassment of victims and witnesses, blackmail and intimidation. In more extreme circumstances, they could be used for orchestrating escape, child sexual exploitation or extremism. Illicit mobile phones are a valuable and profitable prison commodity that prisoners will get into debt over, driving up the risk of violence against themselves or families in the community if they cannot repay it.

Noble Lords may wonder why it is necessary to amend legislation passed as recently as 2012. It should not be interpreted as meaning that the 2012 Act was in any way deficient or flawed. Rather, it clearly illustrates just how rapidly mobile technology has developed, is still developing and how quickly it changes. We need to help governors and directors to keep up with this pace of change. Therefore, the Bill seeks to future-proof the provisions of the 2012 Act by making a small but crucial change to enlist the direct support of the acknowledged experts in the field of mobile technology, the public communications providers, to combat the serious problems caused by illicit mobile use in prison. It is a small but important Bill of two clauses and one schedule.

Clause 1 allows the Secretary of State to authorise public communications providers to interfere with wireless telegraphy in prisons in England and Wales, in addition to the existing authority that can be given directly to governors and directors. Authorisation can be given for the same purposes as in the 2012 Act—namely, to prevent the use of a device such as a mobile phone or to detect or investigate the use of such a device. Authority can be given to a public communications provider to interfere with wireless telegraphy in one or more institutions in England and Wales, one or more kinds of relevant institution in England and Wales or relevant institutions in England and Wales generally.

Clause 2 sets out the Title of the Bill if passed, provisions for coming into force and deals with territorial extent. On the question of territorial extent, in line with convention, it mirrors the Act that it amends, extending to England, Wales and Scotland. However, if passed, the Bill will apply only in England and Wales. The 2012 Act gave powers to Scottish Ministers to grant authorisations to governors or directors of prisons enabling them to interfere with wireless telegraphy, and the Scottish Parliament passed a legislative consent Motion to this effect. I understand that the Ministry of Justice has discussed the Bill with Scottish counterparts, but the Scottish Government do not want the additional proposed powers in this Bill.

The Schedule to the Bill contains further amendments on two important matters: the safeguards for using the powers, and retention and disclosure of information. Under Section 2 of the 2012 Act, where the Secretary of State authorises a governor or director to interfere with wireless telegraphy, he must accompany that with directions setting out information that the governor must pass to Ofcom, the frequency with which the information must be provided and circumstances in which interference activity must be modified or discontinued.

The Schedule makes it clear that any public communications provider authorised to interfere with wireless telegraphy must also act in accordance with any directions given by the Secretary of State. However, the nature of the directions will differ from those given to an authorised governor or director, as the authorised provider will provide information to the governor or director of the institution where the interference is taking place and the governor or director will remain responsible for passing such information to Ofcom. In a similar way, provisions in the 2012 Act covering retention and disclosure of information obtained from interference with wireless telegraphy are extended to cover providers, but responsibility for decisions about retention and disclosure of such information will continue to rest with the governor or director of the relevant institution.

I should make it clear that the Bill is not about facilitating one particular technological solution but about providing a clear line of legislative authority to enable public communications providers to bring their knowledge and expertise directly to bear on the problems caused by illicit mobiles in prisons in England and Wales. And as I have explained, public communications providers will be covered by existing safeguards concerning the need to comply with directions and concerning retention and disclosure of information obtained from wireless activity.

To sum up, this is a short Bill but, I hope noble Lords will agree, a very important one. As I saw from my visit to HMP Brixton, the staff and volunteers in our prisons do an extraordinary job in often difficult circumstances. Their role is to care for and support men and women whose personal circumstances and behaviour can often be challenging. The illicit economy in prisons undermines their efforts and drives a cycle of debt and bullying that is one cause of current high levels of violence and self-harm. Illicit phones, along with drugs, are a central part of that illicit economy.

I pay tribute to the excellent work that prison staff and volunteers do and hope that this Bill will play a role in supporting them. I look forward to the debate. I hope that there will be widespread, if not unanimous, support for the Bill and that it will make quick progress through this House and achieve speedy Royal Assent. I beg to move.

12:15

[Lord Ramsbotham (CB)]

My Lords, I warmly support this Bill, so ably introduced by the noble Baroness, Lady Pidding. As the Prisons Minister, Rory Stewart, said during the passage of the Bill through the other place:

“Tapping the almost 10,000 mobile phones that were seized in a single year and interfering with their ability to communicate is not a silver bullet, but it should help to make prisons a safer and more orderly place in which we can begin to address some of the underlying drivers of violence and crime”.—[Official Report, Commons, Prisons (Interference with Wireless Telegraphy) Bill Committee, 9/5/18; col. 6.]


I want to set my support in context of the current crisis in our overcrowded and understaffed prisons and—what I have always regretted—the failure of successive Home and Justice Secretaries to implement any of the 12 ways ahead for the Prison Service set out by the noble Lord, Lord Baker of Dorking, then Home Secretary, in his White Paper, Custody, Care and Justice, in 1991, following the seminal report on the causes of the riots in Strangeways and 23 other prisons in 1990 by my noble and learned friend Lord Woolf.

My noble and learned friend identified the three things most likely to prevent reoffending as being a home, a job and a stable, preferably family, relationship, all of which were put at risk by the way that imprisonment was conducted. He recommended that prisons be grouped into what he called community regional clusters, so that, with the exception of high-security prisoners, of whom there were not enough to justify an expensive high-security prison in each region, prisoners were always held in their home areas. Had the 12 ways ahead been implemented, I do not believe that the present crisis would have arisen, but that is another matter.

The maintenance of stable relationships depends on visits, letters and occasional telephone calls, which is where many people believe that mobile phones have a role to play. Unfortunately, mobile phones are used by too many for nefarious purposes, such as controlling drug deliveries by drone, organising crimes or arranging intimidation of families, with the result that they are, quite rightly, currently banned. Life for prison staff is made no easier by the fact that advancing technology has now produced mobiles no bigger than a finger joint, meaning that a phone can be smuggled in in a Mars bar.

However, in the context of maintaining stable relationships, I deplore the current high charges made by BT for the use of legitimate land lines from prison—which I note have been reduced by 50% for in-cell telephones now being installed in 20 prisons. Of course, prisoners should be expected to pay for any call, but not exorbitantly. I ask the Minister to pursue this matter with BT, stressing the important contribution that maintaining stable relationships makes to the protection of the public by contributing to the prevention of reoffending.

Current arrangements for blocking mobile phones used by prisoners are exceedingly cumbersome and bureaucratic, requiring individual governors to deal with individual providers to have specified SIM cards blocked. Nobody needs to carry a mobile phone in prison: prisoners are banned from doing so; visitors have to hand them in at the gate; and staff do not need to use them. Therefore, rather than interfering with their use, I am in favour of an electronic ban in every prison, on the lines of the electronic fence that the governor of HMP Guernsey has erected to prevent drones from being flown into the prison. Currently, Guernsey is the only prison in Europe to have such a fence. It cost a mere £60,000, which I would have thought was cheap at the price, making prisons safer and more orderly places.

Not least for the sake of the overstretched staff in our prisons, I hope that the Bill will be enacted swiftly.

12:20

[Lord German (LD)]

My Lords, I thank the noble Baroness, Lady Pidding, for bringing the Bill before the House. I concur with many of her remarks, as I do with those of the noble Lord, Lord Ramsbotham, who, with his years of experience in this matter, should be listened to.

The Bill meets a tight and limited objective: it intends to make our prisons safer and more secure by disrupting and halting communication by illicitly held mobile phones in prisons. This is to combat the activities derived from the smuggled devices increasingly found in our prisons, as the noble Lord, Lord Ramsbotham, pointed out. In 2015 there were 17,000 mobile phones and SIM cards discovered in our prisons. The Bill permits the identification and blocking of activities using smuggled mobile phones and devices illicitly brought into prisons, as well as allowing the Secretary of State a degree of control over private communication providers when they are exercising their powers.

The Bill itself is limited in scope. It tackles the preventive aspect of prison policy but, as such, it has to sit alongside rehabilitation measures which prevent reoffending and the overcrowding crisis which is a feature of our justice system at present. As described in the House of Commons debate, and by the noble Lord, Lord Ramsbotham, the Bill is not a silver bullet for the problem of smuggling and contraband in prisons. I respect the intention of the Bill to ensure that mobile devices do not work within the confines of the prison. However, I have two concerns I would like to explore. The more important one is associated with technology and the potential for unintended consequences. The other has to do with the related rehabilitation activities recently laid out in the Prison and Probation Service business plan.

I say at the outset that I am not seeking to wreck the Bill, but the Government wish the Bill to move swiftly and for that to happen I must seek guarantees from the Minister at this stage if there are to be no amendments tabled at a future stage. My first area of concern is over the technologies used to block illicit mobile phones. As the noble Lord, Lord Ramsbotham, said, there is a third alternative to those currently being discussed. The Government are considering two technologies. I understand that one is jamming by equipment inside the prison and the other is IMSI, international mobile subscriber identity, whereby mobile phones are identified and that information is passed to the governors of prisons. The third methodology, of an electronic fence, suggested by the noble Lord, Lord Ramsbotham, is also worth exploring, but we have to consider what happens when you block activity in a given area. The issue relates to both telephone and data activity and I shall refer briefly to the difference between the two parts of the technology.

If I refer to the mobile devices that every Member of your Lordships’ House has been provided I can describe this very easily. There are two very simple symbols at the top left hand corner of noble Lords’ phones. The first identifies the provider—in the case of your Lordships’ House it is O2 UK. To the right of that is a series of symbols which range from an e, GPRS, 3G and 4G to a fan-like symbol. All those symbols relate to wireless facilities. The left-hand one, the one with the name of the provider, is sometimes missing and it says “no service”, and sometimes the one on the right is also missing when no service is available. The left-hand one provides Members of this House, and everybody else, the ability to make telephone calls and to text. The right-hand one also provides telephone calls, and noble Lords will have received a letter this week indicating that their phones are going to be altered. In fact, some of us have already received the new phones.

All the phone technology in your Lordships’ House will now be provided by the right-hand end, in other words, by wireless technology using voice over internet protocol. The right-hand side also allows access to the internet and provides the ability to converse using programs such as Twitter and Facebook. It is important that we have a guarantee from the Minister that whatever technology is chosen deals with both the telephonic end and the data end of the telephone spectrum of which we are all in possession. The right-hand end is far more important: it allows you to do absolutely anything. Will both technologies that the Government are considering block both uses, telephone and data?

I turn to the services available on the right-hand side of the phone from wireless systems outside the prison walls. I do not know whether the Minister walks down streets where he is not known and knocks on every door to talk to people in the houses. My party encourages us to do so, as I am sure the Conservative Party does. I have a provider which allows me to share my wireless facility at home with those who have that provider elsewhere in the country so, as I walk down these streets, my phone pings and tells me that I am connected to the wireless of those houses. I do not know which ones because it is quite a large area, especially if you have a wireless extender in your home—a facility which you can purchase at any electrical store and plug into your electrical socket, which extends the reach of your wireless and therefore the fan-like symbol on the right-hand side of your phone. That wireless signal is available to me in streets that I know nothing about. It is available in properties outside prison walls.

I ask the Minister for two guarantees: first, that the technology used inside the prison will have no effect on the legally available commercial services purchased by those living close to prison walls; and, secondly, whether the technology used to jam or stop mobile services within the prison will be able to deal effectively with these external wireless signals from consumers that I have described.

The Bill allows for the collection of data. It would most likely be collected by using the IMSI catchers that I talked about earlier, which could indiscriminately intercept and hack phones within a given radius, allowing them to intercept mobile signals meant for the network provider. There is a danger of unintentional consequences where innocent third parties may accidently have their mobile data captured within the radius of a defined geographical area. I ask the Minister for a guarantee that this will not happen.

The Government state:

“Blocking works by preventing phones from connecting to mobile networks, allowing us to stop the mobile phones that we have not been able to find from working”.


I accept that and think it an appropriate aim. I seek a guarantee that technology that allows for a blanket block on mobile communications will not unintentionally cause disruption or hacking to innocent third parties; for example, the person living across the road from the prison suddenly finding that their mobile does not work in their home or that their calls and data are observed. For example, a new block of student accommodation has been built right alongside the walls of HMP Cardiff. Students are nine or 10 floors up—all of whom, I guess, will have some form of wireless communication, which of course is vital to undertake their studies. I recognise that these are significant guarantees that I am seeking but I am sure the Minister would not want to face a charge of the Government snooping on personal information.

Finally, I turn to the legitimate uses of telephone and data services by those in prison. I echo the words of the noble Lord, Lord Ramsbotham. Currently offenders have to deal with a high-cost, low-availability prison phone that makes the possession of an illegal mobile phone attractive despite the costs of punishment. If prisoners have to make a choice between a 10-minute call to a mobile that costs nearly half their average weekly income—after waiting for a long time to use the phone, during which there is a real risk of violence; I cite the government advice on this matter—and a mobile phone that can be used at any point, it is hardly surprising that offenders choose to illicitly obtain a smuggled mobile phone.

The Howard League for Penal Reform and the Prison Reform Trust make a powerful case for greater access to prison-controlled phones. There are important rehabilitation needs for prisoners which require the use of telephones and data access. One of the most important factors in avoiding reoffending is the retention of family links and family support so that when a person leaves prison there are powerful reasons to not return there and, I hope, that most essential of needs—a roof over their head and somewhere safe to live.

Access to a telephone is essential to achieve this goal. The Minister’s colleague, in her letter dated 24 July this year, told us that the Government are spending £7 million on in-cell telephones. I applaud and welcome this objective but it raises other questions about the timescale for the rollout of that programme, especially if this Bill is enacted and immediate action is taken. Can the Minister outline the progress of the rollout of in-cell phones and whether that will be alongside the enactment of this Bill and the activity relating to it? There is a genuine rehabilitation need to improve offender access to phones, as well as to reduce the cost of calling.

Equally, access to data services is essential to many learning and training schemes provided in prison. Crucially, the Government have made it a requirement that applications for benefits, including universal credit, are made online. If this is not possible to do in prison, there will be a long wait before a released offender gets access to the vital financial means on which to live, and perhaps they will turn back to offending. The ability to interfere with wireless telegraphy requires protections, and these must be reflected in the guarantees that I seek from the Government. I wish the Bill speedy progress but it is essential that the public are protected in this matter.

12:33

[Baroness Hayter of Kentish Town (Lab)]

My Lords, although this Bill is welcome, its provisions would, of course, have been better within a government Bill that incorporated a comprehensive programme for the reform of prisons and courts. Our prisons are now, I am afraid, in a pretty sorry state—I think the noble Lord, Lord Ramsbotham, referred to a crisis—thanks to government underinvestment and poor management.

The previous Government’s Queen’s Speech promised reforms to transform how our whole justice system operates. But what materialised instead was a legislative drip-feed, with many of the most important challenges completely absent from their legislation. Indeed, the one welcome initiative—the one before us today—has had to be handled in a Private Member’s Bill. It would create a power for the Secretary of State to authorise communications providers to disrupt unlawful mobile use in prisons, which would otherwise contravene the law. As the Bill is all about that legal power, we do not share the worries about technicalities raised by the noble Lord, Lord German.

In 2013, 7,500 phones and SIM cards were found in prisons but, as we heard, within just two years—by 2015—the figure was nearly 17,000. This Bill goes some way to addressing that problem. There is, as we have heard, clear evidence that mobiles are smuggled into prisons, often enabling inmates to order drugs, harass victims or witnesses and even organise crimes, whether inside or outside prison, as outlined by the noble Baroness, Lady Pidding. The ability to disrupt phone usage could indeed reduce illegal activity and may help to counter organised violence and drug use. It is obviously not a panacea.

Alas, the Government have a lot to answer for regarding the sort of environment that we now see in prisons, an environment which facilitates violence, drugs and crime. If the Government are going to take a decision, as they did, to slash budgets and prison officer numbers—indeed, to neglect our prisons—they will have to accept responsibility for overcrowding, limited offender rehabilitation and the violence that goes on in prisons. Attacks are reaching a record high as the service struggles to tackle out-of-control drug use and the influence of gangs. Every 20 minutes there is an assault in prison, and a prison staff member is attacked every hour. Attacks on staff have increased by more than a quarter in the year to June, while prisoner-on-prisoner attacks have increased by one-fifth. This problem will not go away through wishful thinking; it needs serious funding and a proper strategy. We still look to the Government to provide that.

As has been said, the measures in the Bill were originally in the Prisons and Courts Bill, which fell when the Prime Minister called her rather ill-fated 2017 election. Not only did she lose her majority but this measure similarly disappeared. Can the Minister say when the other provisions in that lost Bill will come before Parliament? As I think he knows, we are particularly concerned about the measure to prohibit the cross-examination by perpetrators of victims of domestic violence in family courts. There is currently no sign of that measure appearing. I am sure the Minister is not content that it is still possible, despite restraining orders being in place, for these victims to be cross-examined by the individuals they most fear, who have made their lives and those of their children so miserable.

A recent study by Women’s Aid, with Queen Mary University of London, showed that nearly one-quarter of domestic abuse victims are still being cross-examined by the perpetrator in family courts—a practice we managed to end in criminal courts. That concern caused the Law Society and Resolution to write to the Lord Chancellor to urge action. Despite professing support, however, the Lord Chancellor resorted to that old excuse, yet again, that it would be dealt with,

“as soon as parliamentary time allows”.

That was in a letter from the Lord Chancellor three months ago. Perhaps the Government will take the opportunity provided by today’s debate to spell out when we will see that legislation. If need be, it could be addressed in a similar Private Member’s Bill or assisted by us in some other way.

We are content, with the support of your Lordships, to give this Bill a Second Reading, and we certainly wish it speedy progress. However, the Government’s handling of the legislative programme relating to wider reform concerns us. The fact that they have now to rely on a Private Member’s Bill, welcome though this one is, as a vehicle is probably also of concern to your Lordships. For now, we wish this Bill well.

12:40

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

My Lords, first, I congratulate my noble friend Lady Pidding on bringing this Bill before the House. Like her, I thank Members in the other place who have made a significant contribution to the progress of the Bill so far. I strongly concur with my noble friend’s assessment that the Bill will make an important contribution to keeping our prisons safe and secure. I note the contributions from other Members of your Lordships’ House—it appears that they agree with the aims and objectives of the Bill. It would be deeply regrettable if for any reason the Bill could not find its way swiftly on to the statute book, given the need to address such an important issue with regard to our prisons.

Noble Lords clearly understand that the illegal supply and use of mobile phones presents real and serious risks not just to the stability of our prisons but to the safety of the public. Illicit phones erode the barrier that prisons walls place between prisoners and the community. They can be used to commission serious violence, harass victims and continue organised crime and gang activity outwith the walls of the prison. They are also key to the illicit economy within prisons, and consequently contribute to the cycle of debt, violence and self-harm that can occur in prisons, particularly where it is related to drugs.

Examples of the risk that illicit mobile phones in prison pose to the public are clear. We should have no doubt about the seriousness of the crimes committed by means of mobile phones. As a result of considerable work and intelligence-led enforcement activity, we have managed to investigate and prosecute crimes committed in prison using mobile phones and the control of criminal activity outside prison from within prison.

Clearly this is a major issue. The noble Baroness, Lady Hayter, referred to the number of mobile phones that are being recovered in prisons. It is an ongoing and demanding issue that we seek to address in various ways. Addressing the security challenge posed in many cases is an essential prerequisite to making prisons safer and therefore capable of performing their rehabilitative functions.

Noble Lords highlighted the need to continue to provide legitimate ways for prisoners to contact family and friends as we tackle the illicit use of mobile phones. We recognise and endorse that point. Recent research published by the Ministry of Justice has shown the beneficial impact that maintaining family links can have on reducing reoffending. The provision of accessible legitimate telephony services is obviously a key factor in maintaining those links, and there is an ongoing programme of work to improve those services. Touching upon a point raised by the noble Lord, Lord German, we have completed the deployment of in-cell telephony to 20 prisons to make calls more accessible to prisoners. We are investing £7 million over the next two years to provide in-cell telephony in a further 20 prisons. In response to a point made by the noble Lord, Lord Ramsbotham, we have also reduced tariffs in these sites to make calls more affordable. I recognise that telephones that are otherwise available in prison are subject to a higher tariff than that normally found in domestic tariffs because they are essentially charged on a pay-as-you-go basis. That is being addressed. For the avoidance of doubt, we hope all in-cell phones will be on a more affordable tariff. There will be limitations on the use of those phones because they will be limited to preapproved phone numbers and there will be robust restrictions in place to address that.

The noble Lord, Lord Ramsbotham, raised a point in earlier conversations about linking the availability of such in-cell telephony with incentives and privileges within the prison. We recently consulted on the incentives and earned privileges policy. As we take that forward, I will pass his point on to officials because it strikes me that it is worthy of further consideration.

As for the means by which we seek at present to limit the use of mobile phones, we have the means touched upon by the noble Lord, Lord German. He talked about the jamming of equipment and the identification of particular phones and the use of a fence, as mentioned by the noble Lord, Lord Ramsbotham. I will come back to that point in a moment. Looking at the current means of trying to limit mobile phones within prisons, we have the basic idea of searches, detection using scanner technology, telecom restriction orders—which I think are what the noble Lord was alluding to—and blocking devices. It is a problem that if blocking devices are not deployed with sufficient care we can end up blocking telephony outwith the curtilage of the prison itself. There are therefore certain limitations on their deployment, and we agree with that, so their use has to be approached with considerable care. In addition, because of those limitations there are instances where the blocking cannot be deployed throughout the entire prison itself, where there may be areas that are not blocked. So blocking is not a complete answer so far as mobile telephony is concerned. Where it is deployed, however, let me be clear that the blocking of such equipment extends not only to telephony but also to data—there is no question of that—because they both operate on the same part of the network. Therefore where it is effective in respect of telephony it is also effective in respect of data.

Then there is the issue of wi-fi provision outwith the curtilage of the prison that might be picked up within the prison itself. There is a theoretical risk of that happening; albeit in this day and age one would expect these wi-fi providers to be password-protected, that would not always be the case. Indeed, one of the aims of the present Bill is to enable us to engage with the telecommunications companies in order to develop strategies as the telecommunications develop. One area where we may be able to address this is with regard to further technology to combat the ability of people to pick up wi-fi signals from outwith the curtilage of the prison. As I say, it is a theoretical risk; it is in theory an issue that we would want to address, and one that we feel we might be able to.

[Lord German]

Perhaps the Minister would allow me to reiterate the point that when you take out a broadband contract with the largest provider in this country, it gives you the option of allowing your wireless to be available to others. If you do that, clearly there are a large number of people operating through this system where you do not require permission, because that has already been given, nor do you require a password. It just automatically happens when you walk down streets with which you are unfamiliar.

[Lord Keen of Elie]

I recognise the point made by the noble Lord, Lord German. That is why, as I say, the Bill would allow us to engage with the telecommunications companies in order that we can combat that sort of development and indeed future technology that may not create an issue at present but may create one in future as we go on to 5G and 6G technology.

We have already invested £6 million in prisons to provide them with modern technology such as scanners, phone-blocking technology and indeed improved searching techniques. Clearly we want to do more. We then have the telecommunications restrictions orders that would enable us to disconnect mobile phones or SIM cards identified as operating within a prison. But I want to be clear: the purpose of the Bill is to ensure that we can engage directly with, and grant permissions to, the telecommunications providers, which are probably the best qualified to guide us on how we can best meet the demands in future presented by the illicit use of mobile phones within our prison estate.

I hope that that has addressed the points raised by the noble Lord, Lord German, because I would not want the Bill to be derailed. I hope that it has also addressed the points raised by the noble Lord, Lord Ramsbotham. The noble Baroness, Lady Hayter, ranged into a wider area with regard to courts and prison reform, and in particular raised the issue of cross-examination in domestic cases within the family courts, as distinct from criminal courts. I undertake to write to her on that subject rather than endeavouring to address that issue in the context of this debate. I hope that she will accept that undertaking from me.

With that, I commend my noble friend for moving this Private Member’s Bill.

12:50

[Baroness Pidding]

My Lords, I am grateful to noble Lords who have contributed to the well-informed and considered debate and for the general support for the measures in the Bill. As I said in opening the debate, the Bill is short but none the less important. It is gratifying to have its importance recognised in this House. I welcome the shared understanding of the problems caused by illicit mobile phone use in our prisons. I emphasise what I said earlier: the Bill is not about one technological solution but about providing a clear line of authority in primary legislation to enable public communication providers to bring their unrivalled technical knowledge, specialised expertise and ingenuity directly to bear on the problems caused by illicit mobiles in prisons in England and Wales.

The Bill is also about trying to anticipate future challenges. The pace of technical change is very rapid, and prisoners will undoubtedly seek to take advantage of those changes, but public communication providers are at the forefront of that technological change, and the Bill will provide a clear line of authority to allow them to play a full, active and, I believe, successful part in the battle against the harm caused by illicit mobile phone use.

The involvement of public communication providers will be subject to all existing necessary safeguards, with the Bill constructed in such a way that governors and directors will remain ultimately responsible for interference activity in their institutions, even where it is communication providers which are conducting that activity. That must be right.

I am very grateful to my noble and learned friend Lord Keen of Elie for expressing the Government’s clear and full support for the Bill, and for helping me by answering the questions and issues raised. I am sure that noble Lords will have welcomed his clear statement that if the Bill becomes law, it is a small but nevertheless important element of a much wider programme of work to make our prisons safe and secure, enabling them to become more fully places of rehabilitation. I note that rehabilitation is a priority for all noble Lords who have spoken, and I share this aim.

If the Bill receives a Second Reading, I look forward to it going successfully through all its remaining stages and becoming law. If it does, I am confident that it will make a significant contribution to improving the safety and security of our prisons.

Bill read a second time and committed to a Committee of the Whole House.

Children Act 1989 (Amendment) (Female Genital Mutilation) Bill [HL]

Committee: 1st sitting (Hansard): House of Lords
Friday 26th October 2018 Lords Chamber

Committee

12:54

Clause 1: Amendment to the Children Act 1989

Amendment 1

Moved by

[Lord Berkeley of Knighton]

1: Clause 1, page 1, line 5, leave out “section 5A of and” and insert “Part 1 of”

[Lord Berkeley of Knighton (CB)]

My Lords, this Bill seeks to make a small yet important—vital, even—amendment to the Children Act 1989. I take this opportunity to thank officials from the Ministry of Justice and the wider Government and, in particular, the noble Baroness, Lady Vere—the Minister—for their considerable support in helping to ensure that this Bill is clear in its extent and scope. I also pay tribute to the barrister David Maddison in Manchester, who has given unstintingly of his time in helping me with this Bill, and to my noble and learned friend Lord Brown of Eaton-under-Heywood for generously casting his eye over matters and proceedings—an eye far more expert in these matters than mine.

As I explained at Second Reading, the family court can issue a care order for a child at risk of forced marriage or at risk from a habitually drunken, violent father, but it cannot issue a care order for a girl at risk of having her genitals mutilated. My Bill aims to redress precisely this situation. The amendments before your Lordships’ House today are technical in nature and ensure that necessary reference is made to the relevant sections of the Female Genital Mutilation Act 2003 in order that this Bill extends only to female genital mutilation—FGM—protection order proceedings that occur in England and Wales, and applies only to those proceedings where they occur in the family court. During Second Reading, I explained that the Bill seeks to include FGM protection order proceedings within the definition of “family proceedings” for the purpose of the Children Act 1989. This means that in future, during proceedings for an FGM protection order, an application for a care or supervision order in relation to a child at risk of significant harm could be made. This would avoid the need for separate applications and potential delay. Other powers of the family court, including powers to make, for example, a prohibited steps order, special guardianship order and family assistance order, would also be available in FGM protection order proceedings. The Bill seeks to close a small, unintended gap—an oversight or anomaly, if you like—in the law and will serve to increase the ability of the court to protect children at risk.

I turn to the amendments in more detail. Amendment 1 seeks merely to remove, in Clause 1(2), the superfluous reference at line 5 to “Section 5A of and”, making appropriate reference to “Part 1 of”. Section 5A of the Female Genital Mutilation Act 2003 refers to and simply introduces Schedule 2 to the Act, which sets out the legislative detail on FGM protection orders. However, given that the Bill extends to England and Wales only, it is appropriate to refer to “Part 1” of Schedule 2 to the Female Genital Mutilation Act 2003. This is necessary, as Schedule 2 also makes provision, in Part 2, for FGM protection orders in Northern Ireland, to which the Bill does not extend.

13:00

On Amendment 2, paragraph 3 in Part 1 of Schedule 2 to the Female Genital Mutilation Act 2003 provides for circumstances in which an FGM protection order may be made by the court during criminal proceedings for an FGM offence. This could occur, for example, where a criminal court makes an FGM protection order of its own volition to protect a girl where the defendant has not been convicted of an FGM offence but where it has emerged that there is a risk of action by the defendant to carry out FGM against the girl. Criminal proceedings should not fall within the scope of the amendment made by the Bill, which aims to widen the definition of “family proceedings” for the purposes of the Children Act 1989. The amendment seeks to ensure that such criminal cases are rightly excluded from the scope of the Bill.

Finally, the last amendment, in the Title, is similar in context to that which I proposed to Clause 1(2). It seeks to remove the superfluous reference to Section 5A and make appropriate reference to Part 1 of Schedule 2 to the Female Genital Mutilation Act 2003.

These amendments are minor and certainly technical in nature, and I commend them to the House. I beg to move.

[Baroness Harris of Richmond (LD)]

My Lords, as we have heard, the Bill would insert a reference to Section 5A of, and Schedule 2 to, the Female Genital Mutilation Act 2003 into Section 8 of the Children Act 1989. By doing so, the Bill would amend the Children Act 1989 to state that proceedings under Section 5A of and Schedule 2 to the Female Genital Mutilation Act 2003 are “family proceedings”.

I pay tribute to the work of my noble friend Lady Featherstone for her long-standing commitment to fighting FGM. Unfortunately, she is not able to be in the Chamber today to speak in Committee, but I know that she very much supports the intents of the amendments.

We on these Benches are grateful to the noble Lord, Lord Berkeley, for bringing this sensible and valuable change to the law, and to the Government for their backing. As we heard, these amendments are technical in nature, and we are very much supportive of them. It is vital that we continue the fight against this deplorable practice, and we should be using every tool available to us to ensure the safety of these young girls.

[Baroness Gale (Lab)]

My Lords, as the noble Lord, Lord Berkeley of Knighton, said, these are technical amendments, and I am pleased that he was able to bring them before the House today. He explained in detail exactly what they mean, and there is little to add other than to say that we fully support them, and that we know that they will help to make this Bill a much better Act when it comes on to the statute book. I know that the Government will support this as well. I thank the noble Lord, Lord Berkeley, and I look forward to seeing this on the statute book very soon.

[Baroness Vere of Norbiton (Con)]

My Lords, I thank all noble Lords who have taken part in today’s discussion and, in particular, the noble Lord, Lord Berkeley of Knighton, for his Bill and the enormous amount of time and effort that he has devoted to it.

As the noble Lord, Lord Berkeley, has explained, the purpose of his Bill is to amend Section 8(4) of the Children Act 1989—the 1989 Act—to bring proceedings for female genital mutilation protection orders, or FGMPOs, within the definition of “family proceedings” for the purpose of the 1989 Act. Bringing FGMPO proceedings within the definition of “family proceedings” would mean that, in future, an application by a local authority or the NSPCC for a care or supervision order in relation to a child at risk of significant harm could be made during FGMPO proceedings. This would avoid the need for separate applications and potential delay. Other powers of the family court, including powers to make, for example, a prohibited steps order, special guardianship order or family assistance order, would also be available in FGMPO proceedings.

Female genital mutilation, or FGM, is an extremely painful and harmful practice that blights the lives of many girls and women. This Government continue roundly to condemn the practice of FGM and are determined to see it eradicated in this country and elsewhere. That is why the simplification of process intended by the Bill is sensible. It adds to the measures which the Government have brought forward to tackle FGM issues. It is also why the Government supported the Bill at Second Reading, subject to the minor and technical amendments put before the Committee today.

The Government believe that the amendments provide necessary clarity on the extent and scope of the Bill—that is, they clarify that the Bill applies to FGMPO proceedings only in England and Wales and does not inadvertently extend to Northern Ireland, and it excludes FGMPOs made during criminal proceedings which are distinctly criminal proceedings and not family proceedings for the purpose of the Children Act 1989. The Government are very pleased to support the Bill, subject to these minor amendments being made, and I too commend them to the Committee.

Amendment 1 agreed.

Amendment 2

Moved by

[Lord Berkeley of Knighton]

2: Clause 1, page 1, line 6, at end insert “(other than paragraph 3 of that Schedule)”

Amendment 2 agreed.

Clause 1, as amended, agreed.

Clause 2 agreed.

In the Title

Amendment 3

Moved by

[Lord Berkeley of Knighton]

3: In the Title, line 1, leave out “state that proceedings under section 5A of and” and insert “provide that certain proceedings under Part 1 of”

Amendment 3 agreed.

Title, as amended, agreed.

House resumed.

Bill reported with amendments.

House adjourned at 1.07 pm.