Sarah Everard: Home Office Inquiry

Baroness Chakrabarti Excerpts

Tuesday 9th November 2021 Lords Chamber

Asked by

[Baroness Chakrabarti]

To ask Her Majesty’s Government what criteria they will use in deciding whether the Home Office inquiry into the matters arising from the murder of Sarah Everard should be converted into a statutory inquiry by way of the Inquiries Act 2005.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the Home Secretary, in consultation with the chair, determines that if the inquiry cannot fulfil its terms of reference on a non-statutory footing, it can be converted to a statutory basis.

[Baroness Chakrabarti (Lab)]

My Lords, just yesterday we read that the Centre for Women’s Justice is proposing to judicially review the Home Office on this matter, complaining that correspondence with that department has been substantively unanswered from the middle of last month. Does the Minister not agree that the breadth of concern, the depth and importance of the problem, the need for independence to be seen and done and the need, unfortunately, for powers to compel co-operation, all point to every rational criterion for a full Lawrence-style statutory inquiry having already been met?

[Baroness Williams of Trafford (Con)]

My Lords, the duty to co-operate is already in place. It has been in place since February 2020. Regarding the Centre for Women’s Justice, we have not ignored the letter. We have been focused on identifying a chair so that the details of the inquiry’s scope and how it will operate can be confirmed as quickly as possible. The inquiry can then start addressing our concerns, those of the public and those of organisations such as the Centre for Women’s Justice. We will respond to them as soon as possible.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part two & Committee stage
Wednesday 3rd November 2021 Lords Chamber

Moved by

[Baroness Chakrabarti]

132B: After Clause 54, insert the following new Clause—
“Commissioning of police weapons, surveillance equipment or investigatory technology
(1) Save as provided for by regulations under this section or as specifically authorised under other legislation, no constable, police force, police and crime commissioner or other policing body may commission the development or deployment of weapons, surveillance equipment or investigatory technology.(2) The Secretary of State may by regulations—(a) authorise a relevant policing body to commission the development or deployment of weapons, surveillance equipment or investigatory technology specified in the regulations;(b) specify technologies or providers that may or may not be commissioned by any relevant policing body;(c) prescribe conditions that must be met by any technologies or providers if they are to be commissioned by any relevant policing body;(d) authorise a person, or panel of persons, to monitor such commissioning as is authorised and compliance with such conditions as are prescribed.(3) Regulations under this section must be made by statutory instrument.(4) Regulations under this section—(a) may make different provision for different purposes or areas;(b) may make financial, consequential, supplementary, incidental, transitional, transitory or saving provision.(5) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

[Baroness Chakrabarti (Lab)]

My Lords, Amendment 132B—a probing amendment—is in my name and that of my noble friend Lord Hain. The Committee will know that everyone here is engaged with scrutiny of the present Bill because we believe that police powers, criminal justice measures and the criminal law need to be on a clear and, for the most part, statutory footing—certainly on a clear legal footing. A brief skim of this very hefty piece of legislation will throw up references to well-established and legendary Acts of Parliament. The Police and Criminal Evidence Act is an obvious one, as is the Public Order Act; the list goes on. These measures, over the years, have come to govern police powers in particular: powers of arrest, investigatory powers, and so on.

However, because we are nearly a quarter into the 21st century, so much technological development—some of it just as intrusive as traditional powers of arrest and subsequent investigatory powers—has proceeded apace. I, for one, despite having been around this territory for a couple of decades, am not clear about the statutory footing for much of it. That is really the legal and constitutional basis for this probe, if I might put it like that. In a moment, my noble friend Lord Hain will use a more specific example that spurred us to table this amendment, even though that was only a couple of days ago.

In a sense, this is not that dissimilar to the amendment that the noble Lord, Lord Moylan, and many of his friends on the Benches opposite debated a few days ago. That was about non-crime information sitting around on databases, potentially to the detriment of citizens. His cry then, supported vociferously by people from across the Committee, but particularly that side, was that it must be on a statutory footing. The same must be true as a matter of law, not least the law of the European Convention on Human Rights but constitutional principle, in relation to the commissioning of weapons, surveillance equipment, investigatory technology and new algorithmic technology—much of which is currently under investigation by the new House of Lords Justice and Home Affairs Committee, ably chaired by the noble Baroness, Lady Hamwee, who is in her place, and comprising many illustrious Members of your Lordships’ House.

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[Baroness Williams of Trafford (Con)]

If the noble Baroness wants to elucidate further—perhaps not in the Committee—on those issues, I would be very happy to engage with her on them. The only point I was making is that they are elected.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to all Members of the Committee who spoke on this amendment. I want to be clear: it was a probe, and my ideal scenario would not even be for a regulation-making power in a great big criminal justice Act, it would be an Act of Parliament itself. I say to the Minister—and I mean this genuinely in a constructive spirit—that it was a Conservative Government in 1984 who introduced what is now the Police and Criminal Evidence Act.

What I am really saying is that there is so much of this kit and technology developing apace that we need something at least equivalent to the Police and Criminal Evidence Act to put questions of commissioning and regulation—of who decides what the tests are and what the accountability is in relation to all this development and commissioning of this new technology in the policing space—in one Act of Parliament. Again, it is not a partisan point; I would be saying this whoever the Government were. That was a really important piece of legislation in 1984, and the time has come for something like it. There happens to be another Conservative Government, and I think something like that will come.

What I said to the noble Lord, Lord Wolfson—sitting down—I said a couple of years ago to his predecessor: what is the legal basis of telephone extraction? I was told data protection and consent, or something of that kind. Here we are now, a couple of years later, in response to concerns, and there is going to be under this Bill a clear statutory framework.

[Baroness Williams of Trafford (Con)]

I hope the noble Baroness does not mind me intervening, but I again refer her to the Science and Technology Committee, because the Policing Minister talked about gaps in the legislation. In fact, the honourable Member Graham Stringer was pleading for legislation, and I refer her to the comments the Policing Minister made in that regard.

[Baroness Chakrabarti (Lab)]

I thank the Minister for that, and I will certainly go back to look at that. When she made her comments, I asked about the statutory framework, the legal basis. A list came back which began with the common law, the Data Protection Act, the Human Rights Act and the Equality Act—all good things—but my suggestion is that, as a matter of good governance, sound regulation and accessibility for the public—this is not about just civil liberties concerns and privacy but public money and accountability—all this regulation should be under one framework. That way there will be consistency across all 46 police forces in relation to where the commissioning should be, which providers are considered to be ethical and which are not, how they are to behave and what the conditions are, and then, once the technology has been developed, how it is to be deployed. I do not think it is asking a lot to suggest that this should all be under a single statutory framework. It would be something that the Minister and her Government could be proud of, and there could be a regulatory framework that could last for many decades, just as, broadly speaking, the Police and Criminal Evidence Act did.

I thank all noble Lords who spoke. To go back to my noble friend Lady Bryan of Partick’s point, where is the statutory underpinning of a National Police Air Service? Where is the Act says that says “there shall be a National Police Air Service”? I am not aware of it. Where is the Act of Parliament that set up a national College of Policing? I am not aware of it. It may exist somewhere, but I have not found it and I do not see it. I am not doing this to score points; I think it would be good governance and good legislation from which many generations and many Governments in future might benefit.

With that, and with my gratitude for taking this seriously, I hope that I have planted a seed for future thinking. The committee chaired by the noble Baroness, Lady Hamwee, on which I have the privilege to sit, will no doubt develop this conversation with the Minister in due course. I thank everyone for their patience and engagement, and I beg leave to withdraw the amendment.

Amendment 132B withdrawn.

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[Earl Attlee (Con)]

When the noble Lord looks at my speech carefully, he will see I said there is legitimate economic activity for Travellers. I accept that plenty of Travellers engage exclusively in legitimate economic activity. I decided not to tease the noble Lord and ask him who he thought was stealing all the electrical cables from the railway system.

[Baroness Chakrabarti (Lab)]

My Lords, the lateness of the hour and eloquence of many of the speeches tonight mean that I can be brief, but I feel compelled to say a few words in this debate. First, to the noble Earl opposite, to cite particular crimes committed by particular people of whichever community is no justification for a measure that targets all members of that community. We could all cite the statistics of people in prison. We know, for example, there is a disproportionate percentage of black and brown people in prison. Would that justify further criminalisation and demonisation of people who look more like me and less like the noble Earl? I think not.

[Earl Attlee (Con)]

When the noble Baroness looks at my speech in Hansard, she will see that I am arguing, as I will in relation to my Amendment 241, that we need to do something useful with people when they are in prison. The system we have does not address their needs.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Earl for that. Gypsy, Roma and Traveller people are a tiny percentage of our population in the United Kingdom. Undoubtedly, they are one of the most demonised minorities, not just in our nations, but historically and in Europe. We would not have a post-World War II human rights framework but for atrocities perpetrated against minorities, including Gypsy and Roma people.

It is very upsetting to look at Part 4 of the Bill. It is a disgrace. I am sorry to have to say this, but Part 4 is an inherently discriminatory piece of legislation. It is as discriminatory as previous ignominious legislation targeting east African Asians or gay people. If it passes in its present form it will be notorious. I have no doubt at all that it violates Articles 8 and 14 of the convention, at the very least, as other noble Lords have said. I praise the eloquence and perseverance of my noble friend Lady Whitaker in particular, and of many noble Lords and right reverent Prelates.

They know whereof they speak: to persecute people for their nomadic lifestyle—to criminalise the Traveller way of life—is the equivalent, I have no hesitation in saying, of criminalising people for their dress, their food or their prayers. It is a significant attack on their way of life to criminalise them for stopping in places when they have nowhere else to stop. Part 4 is that despicable. I signed one of the amendments; I could have signed any of them. This part, however, should not stand in any primary legislation in a civilised country.

This bit of the Bill is being put forward as part of a very populist and nasty culture war, to use the phrase of the noble Baroness, Lady Jones. It is very dangerous. As the honourable Member for Maidstone, who has not been in this Chamber—perhaps one day she will come—but whose name has been mentioned at many points today, said, be careful about the difference, the fine line, between being popular and being populist. We might well remember that when we consider this part on Report.

My final thought is that in a former role I once had the privilege of chairing a meeting—it was, as I recall, at the Conservative Party conference. The audience was very sceptical about the value of human rights, and the Human Rights Act in particular. It was, potentially, a tricky meeting. I chaired a speaker who was addressing concerns in the audience about prisoners having human rights. Again, that is not a popular group in our society—prisoners and human rights is a bad cocktail. He was saying that prisoners have human rights and that some of them even thought that they had a right to a flushing toilet. What a disgrace that was—the audience was very upset and wanted to scrap the Human Rights Act, as some people still do. This eloquent and learned speaker said that it was very simple to deal with the problem: just fix the loo.

Fix the loo—do not demonise the prisoner, do not scrap the Human Rights Act, just fix the problem that is giving rise to the concern. In this case the fix would be to give people stopping places and the support that they need. The criminal law will deal with burglary and with people using their dogs to terrorise people, and will protect the innocent farmer. I wonder whether the eloquent speaker and passionate defender of the Human Rights Act who spoke at that meeting will remember the occasion, as I always have. He was, of course, the noble and learned Lord, Lord Garnier.

[Lord Garnier (Con)]

I remember that remark very well, and I adhere to everything that I said then. I hope that the noble Baroness is not setting up an Aunt Sally. The speech that I gave a moment ago did not criticise the proponents of these amendments. It criticised much of the content of Part 4 of the Bill. All I asked was that in seeking to provide a solution for one group of people we did not create a problem for another group.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble and learned Lord, Lord Garnier, for that. There is ample criminal law and ample tort law for nuisance. There are ample laws to protect people from burglary, nuisance and so on. This measure, however, is targeted. The euphemism is so thin: “without permission, with vehicles”. I wonder who we are talking about there. The euphemism makes this racial discrimination even more obscene.

[Lord Paddick (LD)]

My Lords, we strongly support all these amendments. As the noble Baroness, Lady Whitaker, and my noble friend Lady Bakewell of Hardington Mandeville said, the crucial point here is that if legal sites were provided it is unlikely that these provisions would even be in the Bill. Having adequate sites is likely to be cheaper than the cost of taking legal action against those who have no option other than to trespass. As the right reverend Prelate the Bishop of London and the noble Baroness, Lady Lister of Burtersett, said, the Bill’s provisions, whether by accident or design, will very clearly disproportionately impact an already vulnerable minority: the Roma, Gypsy and Traveller communities. What would happen if the Government and local authorities made it a criminal offence for motorists to park their cars illegally and then did not provide enough spaces for motorists to park legally? There would be uproar.

My noble friends Lady Brinton and Lady Bakewell told the Committee from their extensive experience about hostility towards Gypsy, Roma and Traveller communities. I have to say to the noble Earl, Lord Attlee, that when he reads back what he said in Hansard it will be open to interpretation that, for every crime he described where he could not say who the perpetrator was, he implied that all those crimes were committed by Travellers, without any evidence that they were responsible for those particular crimes. That is why there is so much hostility towards these communities because speeches such as that can be misinterpreted as, “The noble Earl is saying that those communities are responsible for all these crimes, even the ones where we do not know who committed them.”

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It is also wrong to assume that no criminal activities take place on official sites as well—

[Baroness Chakrabarti (Lab)]

Will my noble friend give way? He has just come to a very important part of his remarks. Every community is capable of committing crime, and therefore we have criminal and civil laws that apply to all communities rather than specific measures targeted in a discriminatory fashion.

[Lord Young of Norwood Green (Lab)]

I thank the noble Baroness, but I think I made it clear in my contribution that I do not believe the Government’s proposals are right or necessary. Do not find a difference with me on those grounds, because it is not what I am suggesting.

If we really want to find a solution to these problems—I think one of the right reverend Prelates made a point about discrimination in education—lots of schools take real pride and make an effort in accommodating Gypsy, Roma and Traveller children. They are the examples of best practice which the Government should encourage. It is not true to say that all Gypsy, Roma and Travellers are illiterate and innumerate—far from it. In fact, one person I met who impressed me was a young woman from a Traveller family who had taken herself through university and become a teacher and an absolute credit to her community. We should beware of sweeping generalisations. They do not help us in these circumstances.

I am aware of the lateness of the hour, but I wanted to make this contribution. I like to think that my activities in support of the Gypsy, Roma and Traveller group will not cause me to be labelled as unfairly prejudiced or discriminatory. Ever since I was capable of doing it, I have fought all my life against any form of discrimination, whether it is anti-Semitism, racism or discrimination against Gypsy, Roma and Traveller groups.

My plea to the Minister when she gets to her feet is to take into account the fact that there are some genuine concerns from a number of us about the nature of the government proposals and whether they will help the situation and are necessary—or whether the existing laws are such. I also do not believe that the nature of the amendments, if I take that of my noble friend Lord Rosser as an example, is a solution to the problem. That is why I suggest that, before we reach Report, the Minister convene a meeting, which might enable us to find a bit more common ground than appears to exist in the Chamber at the moment.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part two & Committee stage
Monday 1st November 2021 Lords Chamber

Moved by

[Baroness Chakrabarti]

122: After Clause 49, insert the following new Clause—
“Arrest without warrants: safeguarding
In section 24 of the Police and Criminal Evidence Act 1984 (arrest without warrants: constables), after subsection (4) insert—“(4A) A constable exercising the power conferred by subsection (1), (2) or (3) may not require or ask the person under arrest to enter a vehicle or premises other than a police station unless at least one other constable is present in the vehicle or when entering the premises, as applicable.””

[Baroness Chakrabarti (Lab)]

My Lords, I have the duty of opening this debate on amendments tabled by noble Lords in response to Sarah Everard’s abduction, rape and murder by a man who was, at the relevant time, a serving police officer, and further to the public outpouring of revulsion and distrust arising from revelations about how the perpetrator was allowed to thrive in the police service, despite repeated concerns about his character and conduct over so many years. These emerged in particular during sentencing proceedings just over a month ago.

My Amendment 122 attempts to address the fact that as a matter of hard law—as opposed to soft guidance, practice, or anything of that kind—a lone arresting officer is currently permitted to require a person subject to arrest to enter a vehicle or premises other than a police station. This gives rise to obvious dangers of abuse of power and dangers to the majority of officers who, unlike the man in question, undertake hazardous and vital public protection duties in good faith.

I am grateful for the support of the noble Lord, Lord Paddick, and the noble Baroness, Lady Jones of Moulsecoomb. I think the subsequently tabled Amendment 123, in the name of the noble Lord, Lord Carlile of Berriew, attempts to tackle a very similar mischief. He will forgive me, I hope, if in a moment I explain why I prefer my original proposal.

My Amendment 275 requires that the inquiry into matters arising from the Sarah Everard atrocity—for that is what it is—be put on a statutory footing under the Inquiries Act 2005. I am grateful not only for the signature of my noble friend Lord Rosser but for that of the noble Baroness, Lady Newlove, and my friend the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am also grateful for the support that the noble Lord, Lord Paddick, and a number of other noble Lords from across your Lordships’ House have expressed for this endeavour.

Once more, I hope that my noble friend Lord Rosser —and my noble friend Lord Coaker on his behalf—will forgive me for preferring my precise formulation to his Amendment 281, not least because in this matter the ideal outcome must be for the Home Secretary to hear the legal and public confidence arguments and by her own volition launch a full statutory inquiry under the 2005 Act, long before the Bill before your Lordships’ Committee becomes law.

Finally, I will support my noble friend Lord Rosser’s Amendments 282 and 283, which seem so important given the obvious needs for better training and vetting in the police service.

Amendment 122 amends Section 24 of the Police and Criminal Evidence Act 1984 governing the powers of police constables who arrest without warrant. It would prevent a police officer in or out of uniform from requiring an arrested person to

“enter a vehicle or premises other than a police station”

unless or until a second officer is in attendance. They would still be able to restrain the arrested person to prevent an escape if so required and, if necessary, to seek bystander assistance in so doing. However, there would be no question of a sole plain-clothed or uniformed officer driving off with an arrested person. This clear and simple change to our law must be better for the safety of all citizens and constables alike.

We now know that the first phase of the hideous abuse of power against Sarah Everard perpetrated by a predatory, murdering rapist was that he went hunting for a young woman under the cloak of dusk and draconian lockdown laws. He persuaded Sarah that he was arresting her under suspicion of breaching those same lockdown laws—something, by the way, that should require those laws being perhaps amended or repealed. While some senior voices in policing had the gall to suggest that she and other women are somehow too naive or compliant, and others have tried to suggest that we ought to perhaps flag down traffic, demand to speak to the control room on an officer’s radio or resort to private sector safety apps on our own mobile phones, it seems that no amount of new guidance to either citizens or constables can substitute for a clear and well-publicised change to primary legislation that everyone can understand.

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[Baroness Williams of Trafford (Con)]

I note the noble Lord’s points and I do not disagree with him. I ask the Committee to understand the commitment of the Home Secretary. She is deadly serious about ensuring that the inquiry moves at pace and, if necessary, converting it to a statutory inquiry if it is not meeting its commitments.

I will get the date for the noble Lord, Lord Paddick, and the Committee. The announcement from Dame Cressida Dick was on 20 October, some 11 days ago, but I will get the date on which Sir Stephen House made those comments.

[Baroness Chakrabarti (Lab)]

My Lords, I am hugely grateful to all Members of the Committee for the substance and tone of our proceedings. I am particularly grateful to the noble Lord, Lord Carlile, who dealt with our minor points of detailed difference with such grace. If I may say so, what I really took away from his comments was the sense of a loving father speaking of his daughters and the hope that we might one day return to a moment when all our daughters and granddaughters can trust the police. I was also struck by the way he worked with the young woman lawyer in trying to bring matters forward with such urgency. I thank him so much for that.

I agree with my noble friend Lord Hunt of Kings Heath that we have to get to the culture of obfuscation and denial—understandable human instincts when we want to protect our colleagues and the service that we love. I say to the noble Lord, Lord Carlile, that if it had been a scandal of equivalent proportions at the Bar, we would feel as uncomfortable as the noble Lord, Lord Paddick, so we understand these things.

I say to my noble friends that my Amendment 275 also deals with culture, but this is not about precise amendments—this is too important for that—but about trying to persuade the Government on both of these issues, of trust and confidence on the one hand and effective change on the other, with which we are attempting to deal in this whole group of amendments. This is about trying to persuade the Government on the power of arrest on the one hand and the inquiry and the training and vetting on the other.

The noble Baroness, Lady Jones of Moulsecoomb, made such an important point when she talked about that period of lockdown and the way that that has, in a sense, exacerbated every problem in the world but also problems around the fault-lines between hard law, guidance, perceptions of the law and trust in policing and what really is the right thing. It was in that lockdown that this atrocity was perpetrated.

Of course, she was also the Member of the Committee who pointed out that, just hours or days after the perpetrator was charged, someone made the insensitive decision to police that vigil in that way. Whoever did so must have known what we were yet to find out. The noble Baroness, Lady Jones, spoke of the young woman who now features in all of the videos and photographs. We know that, subsequently, she has been stalked by serving police officers on her Tinder account. So we really are in trouble, and we are trying to respond to a really significant problem of culture and trust in policing in this country. We are not fabricating this. No one thinks that; I know that we are all on the same page.

My noble friend Lady Blower was also clear that guidance will not be enough. We have gone too far for that in relation to any of the really serious specific issues that the noble Lord, Lord Carlile, and I and others have been trying to address in these amendments.

I thank the noble Lord, Lord Paddick, for everything that he is doing in this group and on the Bill more generally. I say to him and anyone who is now feeling very concerned about and suspicious of policing in this country that there is another side. I would like to believe that the noble Lord, Lord Paddick, still represents more of what is real and true in our policing service and in our democracy built on the rule of law. I hope that we can all listen to him and heed his practical advice. The word “gallant” is used for the military; there is no equivalent for the retired senior police officers in your Lordships’ House, but there are many retired commissioners and others here. But it is the noble Lord, Lord Paddick, who has been engaged with the Bill day after day and has spoken from the heart and from years of practical experience. We have to heed him. I was heartened by hearing him discuss, on Amendment 122, the approach where we do not want lone police officers driving off with arrestees, for the protection of either. That is best practice, but we now need to put that into hard law to reassure everyone and as a matter of good governance.

My noble friend Lord Coaker said passionately—and he is so right—that we have crossed a line in terms of public trust. Once lost, it is really hard to regain. That is why he made the point, again and again, that a full statutory and judge-led inquiry is part—just part—of trying to regain that trust. Can any of us imagine a Lawrence or Macpherson inquiry that was not judge-led and on a statutory footing, with all the iconography and symbolism of justice that comes with that?

Police: Recruits

Baroness Chakrabarti Excerpts

Thursday 28th October 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I outlined the scope of the inquiry and the two parts that the Home Secretary has announced. Part one will look at the vetting procedures to see if they are inadequate in light of what happened to Sarah Everard and how her killer managed to do what he did. The inquiry will look at precisely that.

[Baroness Chakrabarti (Lab)]

My Lords, I worry that the recent policing scandals to which my noble friends Lord Blunkett and Lord Rosser referred have undermined the recruitment of women police officers and black police officers in particular. Because of that worry, I ask the Minister if her breakdown of the recruitment figures bears that out. Whether it does or not, will the Government now consider legislating for affirmative action to allow the recruitment of more black and female officers in particular, as requested by many chiefs in previous years?

[Baroness Williams of Trafford (Con)]

My Lords, there is good news here. As of this September, there were 47,425 female officers in post, accounting for 33.9% of all officers. That is a big increase. On the same date, there were 10,690 officers who identified as belonging to the BME community. This is the highest level on record. I can understand the context of the noble Baroness’s question and why the figures might be different from what she would have expected, but I think this is really good news.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part one & Committee stage
Wednesday 27th October 2021 Lords Chamber

I shall raise one final point. it was raised in the Commons but did not get an answer. It is about funding, to which my noble friend Lord Bach referred. The Local Government Association has raised the issue that CSPs have had their funding steadily withdrawn since 2010. As the Bill appears to create an additional duty, do the Government have plans to review the impact that funding reductions have had on the ability of councils to work with other partners to tackle crime?

[Baroness Chakrabarti (Lab)]

My Lords, with apologies for rising at this late stage, I lay my cards on the table and say that I have never been the greatest fan of legislating to require public officials to work together and creating byzantine edifices of legislative partnerships. However, I think that the noble Lord, Lord Paddick, has a point. If this is to stand, we need to understand whether “may” means “may” or “may” means “must” or whether “may” will become “must” because of regulations that will be made under what Clause 13(4), as it is now, will eventually become. That is just good law-making.

Unlike my wonderful noble friend Lord Bach, I have not been a great enthusiast for police and crime commissioners. I have to be clear about that. I always thought that it would lead to a politicisation of the police and, I am sorry to say that in many cases I feel that that has been the case. I will not dwell on the very crass remarks made by a particular commissioner in the wake of the Sarah Everard case. I am not a fan of that particular politicised mechanism for holding the police to account.

We will no doubt come to this in later clauses, but of course we must have a public health or more holistic approach to tackling—dare I say it—the causes of crime, as well as crime. But setting the policing bit and the Home Office above the other parts of the partnership, with the powers to mandate and the money and so on, is a journey we began with the Crime and Disorder Act, probably 23-odd years ago, when I had the privilege of sitting over there, in the Box. It is a journey that we still seem to be on. I am sorry to say that the poor old Home Office is often the dustbin department, picking up problems in society when it is almost too late. A lot of the deep-seated causes of crime come from other places and need to be tackled; yes, by preventive action—many noble Lords have made that point—but such preventive action belongs in education, in health and in tackling poverty and inequality. We all know this—I am preaching to the choir—but to set up an edifice whereby the senior partner, with all the powers to mandate and all the money to donate, is the policing bit, the security bit, the interior bit and the Home Office bit, is something we need to explore further, as I think the noble Lord, Lord Paddick, intends, during the scrutiny of these clauses.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have contributed to this debate. Clause 13 provides a power for a local policing body—namely, a PCC, the Mayor’s Office for Policing and Crime, or the Common Council of the City of London in its capacity as a police authority—to assist authorities in meeting the requirements of the serious violence duty. The noble Lord, Lord Rosser, was absolutely correct, as was the noble Lord, Lord Bach—as I always say, we are immensely lucky to have Parliament’s only PCC in our place; the benefit of his experience is incredibly useful.

Local policing bodies have an important part to play in convening partner agencies. PCCs and the Mayor’s Office for Policing and Crime, as elected local policing bodies, are the voice of the local community in relation to policing and crime. This is reflected in their current functions in relation to community safety partnerships. Local policing bodies are responsible for the totality of policing in their force area—the noble Lord, Lord Bach, pointed out some of the things that they get involved with—as well as for services for victims of crime. They will therefore have shared objectives in relation to the prevention and reduction of serious violence. That is why this clause provides local policing bodies with a discretionary role in supporting specified authorities with the preparation and implementation of their strategies, as well as monitoring their effectiveness and impact on local serious violence levels. I underline that the PCC role is discretionary and that it cannot be mandated through regulations.

The PCC, the Mayor’s Office for Policing and Crime, and the Common Council of the City of London will not be subject to the serious violence duty as specified authorities. However, as with the existing functions of these local policing bodies in relation to community safety partnerships, they may choose to collaborate with local partnerships. They may also take a convening role to support effective multiagency working.

Regulations made by the Secretary of State may provide further detail on the ways in which local policing bodies may assist specified authorities, including convening and chairing meetings, requiring certain persons to attend such meetings and providing funding to a specified authority to support the implementation of the local serious violence strategy. They will also have a power to require information for this purpose, as set out in Clause 16. In undertaking their monitoring functions, local policing bodies may report their findings to the Secretary of State to ensure compliance with the duty.

Specified authorities will have a duty to co-operate with local policing bodies when requested to do so. However, we have made clear in the draft support guidance the need for the relevant local policing body to consider the proportionality of additional requests and anticipated costs to specified authorities before making any such requests.

The overall objective is to provide additional support and leadership, if and when required, and not to place additional burdens on those authorities subject to the duty. The approach is very similar to arrangements in place for CSPs. There has been a mutual duty on PCCs and CSPs to reduce offending since the Police Reform and Social Responsibility Act 2011. I am sure noble Lords will agree that, to engender an effective multiagency approach to preventing and reducing serious violence, we must ensure that all relevant parts of the system play their part and have sufficient support in place to enable them to do so. We believe that local policing bodies, including PCCs, are best placed to provide that support. I take also the point made by the noble Lord, Lord Rosser, about funding.

--- Later in debate ---

[Baroness Meacher (CB)]

I rise to explore whether Clause 17 should in fact stand part of the Bill. I am grateful to the noble Lord, Lord Paddick, for his support. He knows a great deal more about all this than I do. I will focus my remarks on Clause 17(1)(a), which refers to Clause 16(4). That subsection makes clear that a person employed by any specified authority who is requested to supply information to a policing body must comply with the request. Of course, these bodies may include a health authority as well as an education authority, prison authority, youth custody authority or any other authority named by the Secretary of State.

My objections to Clause 17, if I have understood it correctly—and I am humble enough to know that I may not have—are rooted in my objections to the earlier clauses requiring disclosure of information by public servants to the police. Clause 17 seems to add insult to injury by giving the Secretary of State powers to issue directions to any public servant failing to provide information in order to secure compliance with the duty. Clause 17 goes on to say that a direction can be enforced by a mandatory order. Can the Minister assure the House that these clauses exclude the disclosure of information that could identify an individual? This is vital, as the Minister knows—and I have a great regard for our Minister, who understands these things.

A doctor or teacher, for example, may take the view that to pass information that risks identifying a patient, pupil or other individual to the police would be contrary to the interests of that person and would not contribute significantly to preventing or reducing serious violence. They may make a professional judgment not to disclose information that could identify a patient, pupil or other. I seriously question the Government’s proposals in Clause 17, unless this issue can be clarified.

For example, a patient may suffer from mental health problems and may be causing difficulties, but may still be making good progress in a therapeutic programme. It is likely to be utterly destructive to draw that person to the attention of the police. Likewise, if a child has severe behavioural problems at school, is vulnerable and is being targeted by a drug dealer but has agreed to co-operate with a cognitive behaviour programme and other support designed to deal with his or her problems, it would be incredibly damaging to involve the police at this point. That child could be driven into a life of drugs and crime instead of being carefully steered away from such a path.

Having worked as a social worker many decades ago—goodness knows how many—and worked with families with problems, and having also been on the Police Complaints Authority for nine years, I think I can look at these issues from both points of view. I have considerable regard for the police, despite being—indeed, perhaps because I was—involved in investigating complaints against the police for all those years. I understand that they do want information about young people who may be committing crimes. The noble Baroness, Lady Williams, knows well my view that a radical review of our Misuse of Drugs Act 1971 to focus on drug treatment, rather than criminalising sick addicts, would be a great deal more fruitful in reducing drug abuse and serious violence, including county lines, than this Bill, the serious violence prevention orders and these disclosure clauses.

I hope that the Minister will explain what penalties the Government have in mind if a public servant fails to provide information in accordance with a mandatory order. Are the Government at risk of criminalising public servants? I hope the Minister can reassure the House on these issues and that she will, if necessary, seek the agreement of her colleagues to reconsider the approach in Clause 17 before Report. I look forward to her reply.

[Baroness Chakrabarti (Lab)]

My Lords, I have to support what I have just heard from the noble Baroness, Lady Meacher, for reasons we began to articulate on Monday evening. Noble Lords will remember we began to have a discussion about what is to be shared and in what circumstances existing duties of confidence and existing professional duties need to be overtaken in the public interest. But who decides? The Minister kindly gave me a very specific answer at one point in our discussion, when she said that it will be decided by the person who holds the data, but, obviously, that can be subject to challenge. That of course is my traditional understanding of professional confidence.

Way before this, and way before the Crime and Disorder Act, that was the traditional position: if the doctor, the teacher or whoever is not minded to hand over to the police the data about a specific person, or more general data, the police will have to go to the courts and try to get a warrant. That is the place for those hopefully rare disputes between professionals and the police, who are coming at this from different positions, to be decided, rather than being decided by direction from the Secretary of State.

Of course, normally, we want the health professionals, the policing professionals and the educational professionals to be working in discussion and collaboration, but, where there is a rare dispute because of their different professional angles and ethics, it really is for a judge to decide and not for the Secretary of State to trump all those existing ethics and duties. I think the noble Baroness, Lady Meacher, is nodding at me. That is the concern I hope the Minister can address in her explanation and defence of Clause 17.

[Lord Paddick (LD)]

My Lords, I rise to support the noble Baroness, Lady Meacher, and I am very grateful to the noble Baroness, Lady Chakrabarti, taking us back to very late on Monday night, if the Minister remembers, when we were discussing Clause 15, on the disclosure of information. The Minister—I think, from memory, although it was late—implied that the disclosure of information was voluntary and that the clause was there simply to facilitate the disclosure of information. In challenging the Minister in that, I quoted from Clause 17.

I can be brief. Clause 17 enables the Secretary of State, if satisfied that a specified authority, educational authority or youth custody authority has failed to comply with the duties to collaborate or disclose information—including, presumably, sensitive personal information and information covered by a duty of confidentiality—to direct the authority to comply and enforce her direction through a mandatory order. That is what Clause 17 says.

I have already explained at length why professionals should use their professional judgment—as the noble Baroness, Lady Chakrabarti, just said—within existing policies, procedures, practices and protocols, rather than being forced to divulge sensitive personal information when it is not, on balance, in the public interest to do so. For example, there will often be a greater good to be derived from maintaining a relationship between, say, a youth worker and a young person at risk of becoming involved in serious violence than from divulging sensitive information to the police. All authorities dealing with these issues are committed to preventing and tackling serious violence. They may, from time to time, have a different perspective on the problem, or a different view on the best way to achieve what we all are desperately seeking to do.

This clause is one of the reasons why so many organisations believe that the Bill is really about a police-led enforcement approach, because it is the Home Secretary who can force them to comply, rather than the public health, multiagency, multifaceted approach that has been so successful in preventing and tackling knife crime in Scotland. Can the Minister give examples of where public authorities involved in preventing and tackling serious violence have obstructed efforts to achieve those objectives? If not, why is this clause necessary? We believe that Clause 17 should not stand part of the Bill.

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[Baroness Williams of Trafford (Con)]

My Lords, the direction power is not available in relation to probation services provided by the Secretary of State or publicly run prisons, youth offender institutions, secure training centres or secure colleges. As I said earlier, existing mechanisms will be available to ensure that they are meeting the requirements of the duty. In addition, as I have already outlined, the Secretary of State must also obtain consent from Welsh Ministers before exercising the direction power in relation to a devolved Welsh authority.

[Baroness Chakrabarti (Lab)]

Before the Minister sits down, I have one further question about the protection on data protection. My understanding is that, essentially, it works by limiting the control and transfer of data to the purposes for which the data is held. However, if this legislation changes those purposes to include, for example, the serious violence duty, data protection will not help any more because there will be a purpose that overrides the existing primary purpose. Perhaps during the next few hours—or years—of this Committee, we could get some advice from our friends in the Box.

[Baroness Williams of Trafford (Con)]

The noble Baroness is absolutely right about data protection but there are exemptions. One is the detection, prevention and reduction of crime.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part two & Committee stage
Wednesday 27th October 2021 Lords Chamber

[Lord Beith (LD)]

My Lords, this is an important part of the Bill and an important and large group of amendments. I want simply to concentrate on the two amendments to which the noble Baroness has just referred: Amendments 103 and 104, which are in my name.

Amendment 103 follows concern from the Delegated Powers and Regulatory Reform Committee and its recommendation to deal with what it describes as an inappropriate delegation of power. The Bill leaves to regulation all provision about the exercise of the powers in Clauses 36(1) and 39(1) to extract confidential information. Regulations are to implement a code of practice, which will itself be consulted on. The committee believes these powers should instead be in the Bill, and I agree. However, I part company with the committee in its view that these powers, once put in the Bill, should be amendable by affirmative instrument. That is the creation of a Henry VIII power to modify primary legislation by means of secondary legislation, so I do not think it is the best way to handle the matter. Of course, one of the problems is that, whereas the process of creating the original material, if it is in the Bill, is an amendable process, that does not apply to any subsequent regulations which would definitely alter the material on the face of the Bill.

The Government’s argument for their approach—leaving it all to regulations—is that this is an area of fairly rapid technological change. It might become possible, for example, to extract a relevant subset of information rather than having to extract everything. However, that could be covered in the drafting of the Bill. A major change in the future would justify parliamentary legislation. If the technology really does change the situation dramatically, both Houses could deal with the matter by primary legislation.

I am sure there is a potential compromise under which the Bill could state more extensively and clearly the general principles governing the extraction of confidential information. It already does so to some extent, but if it did so further, it would narrow the range covered by regulations, if they are necessary at all.

It would also be helpful if the Minister could explain why the process to revise the code of practice from time to time would be subject to the negative procedure only. If the regulations which embody the code of practice are going to be changed significantly, why should that be only by the limitations of negative procedure?

Amendment 104 is quite different. It probes the provision in Clause 41(2)(a) covering confidential journalistic material with the meaning given in the Investigatory Powers Act 2016. The regulations are intended to cover the extraction and use of such material. It would be helpful if the Minister could set out the Government’s position and intention on confidential journalistic material and to what extent it is to be treated differently from protected material, such as legal privilege. We need that to be spelled out more clearly. I look forward to the Minister’s response.

[Baroness Chakrabarti (Lab)]

My Lords, I rise to speak in support of the broad thrust of all these amendments and in particular to support the most important one of all, which is Amendment 80 from the noble Lord, Lord Paddick, to which I have added my name.

To begin by way of balance—both political and gender balance—I pay tribute to the noble Baroness, Lady Newlove, who could not be here this evening but who has been incredibly supportive of women’s groups and has been alive to this issue for some considerable time. She was sorry not to be able to be here.

A few years ago, when I was sitting where the noble and learned Lord, Lord Falconer of Thoroton, sits now, I had the privilege of questioning a former Justice Minister about the legal basis for the practice that women’s groups and victims of sex crime had called digital strip searching. Many in your Lordships’ House groaned as if I was using an inappropriate phrase. To be honest, I did not get a lot of support from many noble Lords on any side of the House, but it is better to be late to the party than not come at all.

I say that to the Minister because there is no competition for sainthood here. All sides of this House are a little late to this issue, but we now have this precious opportunity to grapple with it. I do not think any of these formulations are perfect yet. I am so grateful to the Minister for discussing this with me recently, among other issues, as even the progress that the Government have made so far in these amendments can be improved.

I think the noble Lord, Lord Paddick, in his very simple Amendment 80, has done something incredibly important. I questioned the previous Justice Minister about the legal basis for taking these phones at all. Imagine that you have been raped or assaulted and have been through this horrific experience, but you do what a lot of people find very difficult to do—we know about the attrition rates—and go with a friend to the police station, to be told that you now have to hand over your device. The Minister will forgive me, but we discussed this together recently. If I were to hand my phone over, I am not just handing over an old-fashioned telephone; I have so many dear friends and family members whose numbers I do not know, because I click their names to call them. I have just been raped, but I am now giving away my contact with these people, my diary, my shopping lists and my browser, which shows all the mental health and other websites I have visited. Let us be clear: this is probably more intrusive than searching my home. The Minister will forgive me, but we discussed this together.

--- Later in debate ---

[Baroness Williams of Trafford (Con)]

The noble Lord is absolutely right, but I think my noble friend is making a point about where the tables are turned and the alleged victim is not the victim at all.

[Baroness Chakrabarti (Lab)]

In the sort of scenario being described, the suspect—not yet a defendant—will be able to say, “This was consensual and there is a text message that will demonstrate that.” Once that is asserted, that can be sought. It is not a justification for the kind of wholesale retention of mobile phones and trawling of data that people fear. I know that the hour is late and that the Minister wants to make progress, but I just want to put two questions before I sit down and let her finish her response.

First, I noticed while the Minister was speaking that the formulation used in my noble friend Lord Rosser’s Amendment 89 is “strict necessity”, whereas in the government amendments the test is of necessity—

[Baroness Williams of Trafford (Con)]

If the noble Baroness would bear with me, I am going to get on to that point about the read-across to other things. I hope that I have made it clear that I totally empathise with and get the point that my noble friend is making and that the remedy should be established through the court process.

Amendments 99 to 101 address a further point raised by the Victims’ Commissioner; namely, that she and other like commissioners have a statutory right to be consulted on the code of practice. This will give victims and witnesses further confidence that their concerns and priorities are represented in this code of practice.

Amendment 105 will ensure that the Scottish Ministers and the Northern Ireland Department of Justice are consulted before regulations are made to add, remove or amend an authority with devolved competence under Schedule 3.

Government Amendments 108 and 109 add to the list of authorised persons in Schedule 3. Amendment 108 will ensure that authorised persons in the Insolvency Service can exercise the Clause 36 power for the purposes of the prevention, detection or investigation of crime in pursuit of their functions, which include tackling financial wrongdoing. This was initially a mystery to me, but the Insolvency Service is an executive agency of the Department for Business, Energy and Industrial Strategy, hence the language used in the amendment, but it is important to note that the reference to an officer of BEIS is qualified because any individual falling within that description may exercise the powers only for the prevention, detection or investigation of crime. Schedule 3 already enables the Independent Office for Police Conduct to exercise the Clause 36 powers. Amendment 109 adds the equivalent bodies in Scotland and Northern Ireland.

As I have said, we believe that the government amendments address many of the points raised in amendments tabled by the noble Lords, Lord Rosser and Lord Paddick, but I will now turn to some of the other amendments in this group. Amendment 79 seeks to provide free independent legal advice to device users before they agree to the extraction of information from their device. Government Amendment 93 will ensure that device users are fully informed of the reasons that the information has been sought and how the information will be used. We do not think that provisions in this chapter are the right place to address what is a broader issue about the provision of legal advice to victims and witnesses given the wider impacts across the criminal justice system as a whole.

As regards Amendment 89, the noble Lord, Lord Rosser, highlighted the alternative drafting in respect of the test for the exercise of the Clause 36 powers. As the Bill is drafted, the authorised person must be satisfied that the exercise of the power is necessary and proportionate to achieve the relevant purpose. Under Amendment 89, this necessity test would become one of “strictly necessary”. The matter was also raised by the Victims’ Commissioner in briefings to noble Lords.

We understand that the reason for the concern is the strict necessity requirement in the Data Protection Act 2018. The powers in Clauses 36 and 39 must be read alongside existing obligations under the 2018 Act or the UK GDPR. In every case where authorised persons are extracting sensitive personal information from a device under these powers for a law enforcement purpose, such as preventing, detecting, investigating or prosecuting crime, they must continue to meet the strict necessity threshold in the Data Protection Act. It is therefore not necessary to duplicate that existing legal requirement in the Bill; it is there.

Sexual Misconduct in the Police

Baroness Chakrabarti Excerpts

Tuesday 26th October 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

I repeat my response to the noble Lord, Lord Coaker, that every report or allegation of police misconduct for a sexual purpose must be referred to the IOPC. It will be up to individual force chiefs to decide but if it is sexual misconduct it must be referred to the IOPC. We have that additional layer in that the IOPC now has the power of initiative. Decisions on whether officers have committed sexual misconduct, and, if so, what sanctions there ought to be, are for misconduct panels led by the independent, legally qualified chairs.

Additionally, following the recommendations of the Zoë Billingham report, we will be working closely with the new national police lead for tackling VAWG, DCC Maggie Blyth, who took up the post recently to address the report’s findings and drive forward improvements in policing’s response to VAWG.

[Baroness Chakrabarti (Lab)]

The Minister appreciates that trust in the police has taken a real hit, particularly among young women. Given the problems that the noble Baroness, Lady O’Loan, had with non-co-operation from the Metropolitan Police—including, I am sorry to say, the commissioner—with her Home Office review of the Daniel Morgan case, will the Government please consider putting the new inquiry announced by the Home Secretary on a full statutory footing, with powers of compulsion?

[Baroness Williams of Trafford (Con)]

I thank the noble Baroness for that question and for the conversation that we had the other day on this matter. On whether the inquiry could be on a statutory footing, one change since February 2020, when we amended the law, is that police officers are now under a duty to co-operate as witnesses with investigations, inquiries and formal proceedings under the revised standards of professional behaviour. They are guilty of a disciplinary offence if they fail to do so. On the fundamental question, should we assess it necessary, the inquiry can be converted into a statutory inquiry where witnesses can be compelled to give evidence.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part one & Committee stage
Monday 25th October 2021 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I apologise for not having taken part in the Second Reading debate, when I was unavoidably abroad for professional reasons, or in the first Committee day, when unfortunately I was recovering from coronavirus—an experience I would not recommend to any of your Lordships given my experience of it. I rise to speak having very much enjoyed the speech by my noble friend Lord Patel, because I thought he introduced an element of balance that had not quite reached the debate in the earlier moments, eloquent as the introduction from the noble Baroness, Lady Brinton, was.

I will cite two pieces of my own experience as evidence. I spent 10 years as a lay member of the General Medical Council and, during those 10 years, sat successively on the health committee and the conduct committee. The health committee is a form of conduct committee, but with an obvious emphasis, as its name indicates. We spent a great deal of our time discussing whether doctors can be fully relied upon at all times, and in particular at critical moments, to understand the limits of the duty of confidentiality. Because it is not an absolute duty; there is a balance between the private rights of the patient and the general duty of the doctor not to disclose information, and the public duty of the doctor to disclose information if there is, for example, serious danger of violence to the public. I fear that more work will be needed on the amendments being proposed at the moment if that balance is to be sustained.

My second piece of evidence relates to an inquiry I conducted in 2012 for the then Secretary of State for Education, which related to something called the Edlington case. The brief story was that two small and neglected boys, who were fractionally over the age of criminal responsibility, nearly killed another child in a wood. Fortunately, that child and their companion survived—one of them only just. In my inquiry, I looked at the sharing of information by a host of organisations—schools, general practitioners, social workers and so on. It was a clear conclusion of my report that, if key information had been shared, the child who nearly died would not have been assaulted, the two very unfortunate little brothers who committed the assault would not have spent the succeeding years of their lives in a custodial institution and the schools would have been able to create a situation in which the dreadful problems for everybody concerned did not arise. One of the key issues in that case was that the general practitioners did not fully understand the balance between their duty to the public and the rights of their patient—and near-disaster ensued.

To noble Lords moving these amendments and to the Minister, who I know listens to these debates extremely carefully, I say that this is not the time for people to take up closed positions on these matters. There is a lot of work to be done. I think my noble friend Lord Patel probably agrees with this, but I speak with great trepidation, because right in front of me are two of the most distinguished doctors in the whole country. We must ensure that, where it is necessary as a public duty, they and others need to be consulted to ensure that the balance is right and is therefore not the subject of the controversy we have been hearing about already this afternoon.

[Baroness Chakrabarti (Lab)]

My Lords, I do not disagree with the noble Lord, Lord Carlile, but I none the less think that the noble Baroness, Lady Brinton, and her colleagues are on to something. There is no question but that the noble Lord, Lord Carlile, is right that, under common law, doctor-patient confidentiality is not and has never been absolute. The question is when it is trumped by other considerations, and who decides.

It is always dangerous to suspect what the Minister will say in her eventual reply, but I suspect that she will say reassuring things, and her colleagues will have given her reassuring things to say, about the intention. I am sure that the intention is not for the wholesale trumping of doctor-patient confidentiality. There is no public interest in that and the Government would not want people to take that as the case, because it would be completely counterproductive not just to the effective functioning of public health but to law and order. To give an obvious example, if everyone involved in knife crime feels that there will be no confidentiality whatever in the emergency room or elsewhere, one runs the danger of people not going to get the vital help and emergency care that they need. I know that the Minister will understand that.

Going back to the detail—as this is Committee—when should there be a trumping and who decides? That is a worthwhile, detailed conversation to be explored between organisations such as the General Medical Council and the Minister and her team. Because, while it may not be the Government’s intention to trump common-law principles of ethics and confidentiality en masse, we have to remember of course that statute displaces the common law. If the statute is unclear and people think or perceive that the common law has been trumped and that the decision has been taken completely out of the hands of an individual practitioner on the advice of ethical bodies or ultimately taken out of the hands of a judge and that the principles of confidentially have been totally trumped, we have a problem—and that means the Government have a problem as well.

So I hope that, when the Minister eventually replies to this debate, she will not reject these concerns out of hand and will take on board the possibility of a bit more detailed discussion about when the duties to collaborate and so on should trump confidentiality, when not and, crucially, who is to decide. For my part, I would favour practitioners, properly advised, perhaps by more and further guidance from their professional bodies, and, if necessary in individual cases, by the order of a judge, possibly sought on an ex parte basis, as opposed to anything too wholesale or administrative. That is just my suggestion. I am sure that the Minister and her team will be able to come back with something that meets the concerns of the noble Baroness, Lady Brinton, and her colleagues before the next scrutiny stage of the Bill.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am very minded to support this series of amendments. As the noble Baroness, Lady Brinton, and the noble Lord, Lord Patel, explained, doctor-patient confidentiality is far more than a common-law obligation. It is an ethical duty in a relationship of trust. Will the Minister consider whether the public understand what this aspect of the Bill compromises of that confidentiality?

Our doctors know a lot about us: the most intimate physical details, sometimes our psychological weaknesses, sometimes our darkest fears about life and death matters. While it has been a long time since we offered uncritical deference to our doctors, as patients and at our most vulnerable we are not equal partners and we need to trust that relationship, despite the power imbalance. So it is understandable that the General Medical Council and the British Medical Association are rightly worried that the Bill will smash the principle of confidentiality to bits.

The issue of confidentiality and trust will appear later in Committee in some other amendments that I shall speak to later, but my main question here is: why is this part of the Bill necessary? I genuinely do not understand. People involved in medical practice understand that, while confidentiality is an important legal and ethical duty, it is not an absolute. As the noble Lord, Lord Carlile, explained, it may be that some doctors get the balance wrong, but doctors are already expected to share confidential information if it is in the public interest, and that includes serious crime. However, this is presently understood as the exception, not the rule. At the moment, doctors need to consider the specific circumstances of what to share to satisfy the intended purpose and when to share it, and they have to weigh up the benefits and harms of disclosure.

Doctors are asked and trusted to exercise their professional judgment and to strike a balance between individual and community rights. I, for one, want to continue to trust medical personnel to make such judgments in good faith. Is the Minister saying that the Government do not trust them on this? It feels like an attack on professional discretion that will undermine doctors in the eyes of the public. At the moment, with the medical profession being under so much pressure and scrutiny—anger over no face-to-face GP appointments, tragic backlogs in hospital treatments—there is already tension between the public and the medical profession. If it comes out that when you go to the doctor, the sacred bond of confidentiality could in fact be expected to be broken, that will be very damaging for no good purpose.

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[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have spoken in this debate; it has been incredibly informative. On the last point made by the noble Lord, Lord Rosser, about further discussions, and as requested by the noble Baroness, Lady Brinton, I am very happy to convene a meeting. On that note, officials have met the GMC to discuss the data-sharing clauses. They have agreed to support the drafting of the statutory guidance and officials have also offered to meet the BMA, but a date has not been fixed. I would like to schedule the meeting that the noble Lord and the noble Baroness request, and it would be great if they would join it.

On the first point made by the noble Lord, Lord Paddick, about a police-led approach, in the serious violence duty draft guidance it is writ really quite large that this is not led by one agency or another but is a shared endeavour towards a public health approach. There are two pages on that, and I think the noble Lord might find that really helpful. At this point, I also thank the noble Lord, Lord Carlile, for both giving the benefit of his experience and bringing balance to the debate; “balance” seems to be a word quite often used in this debate.

Information sharing between relevant agencies is absolutely essential to the discharge of the serious violence duty. The issue before us is how such information sharing, particularly when it relates to personal data of identifiable persons, is properly regulated, and the scope of any restrictions on data sharing. I recognise that there are concerns, particularly in respect of patient information, and that we need to examine them carefully, but I am also concerned that at least some of these amendments seek to significantly weaken the provisions in Chapter 1 of Part 2. Amendment 54 is a case in point. It would have the effect of removing specified health authorities—clinical commissioning groups or CCGs in England and local health boards in Wales—from Schedule 1 and consequently remove the requirement for such authorities to participate in the preparation and development of local serious violence strategies.

I know that noble Lords would agree that the health sector has a very important contribution to make to local partnership working to prevent and reduce serious violence. The provision of local health data will be necessary to take a comprehensive view of the levels of violence being brought to the attention of services in a local area. Local health services may also be involved in the implementation of local strategies, for example where health-related support services are to be commissioned for those at risk of or involved in serious violence. I therefore do not think that it is appropriate to remove specified health authorities from this part of the Bill.

On the point made by the noble Lords, Lord Paddick and Lord Rosser, I would like to be clear that the information-sharing provisions under the serious violence duty do not place any mandatory requirements directly on GPs, doctors or other practitioners to disclose information that they hold. The power to disclose information in Clause 15 applies to information held by CCGs in England and local health boards in Wales, as they are specified authorities. Local policing bodies can request information under Clause 16 from CCGs in England and local health boards in Wales only when it relates to them, their functions, or functions they have contracted out, and only where that information is for the purposes of enabling or assisting the local policing body to exercise its functions under Clause 13 of the Bill. I think that was the point that the noble Lord, Lord Patel, referred to, unless I am wrong.

Confidential patient information can already be lawfully disclosed in the public interest where that information can be used to prevent, detect or prosecute a serious crime. However, such decisions about whether disclosures of confidential patient data are justified must always be made on a case-by-case basis, in line with data protection legislation, which is also the case for the serious violence duty provisions.

On the common-law duty of confidentiality, the point made by the noble Lord, Lord Carlile, about balance was really pertinently made. So many crimes that we can all think of, particularly against children—he mentioned a case that involved children—could have been avoided had practitioners shared relevant information. Existing statutory guidance on the Care Act 2014 already signals specific circumstances where the common-law duty of confidentiality and data protection legislation would not be contravened by the sharing of personal data—for example, where there is an overriding public interest.

Confidentiality can be overridden if there is a necessity—namely, abuse or neglect. Ordinarily, consent should be obtained but, where this is not possible, practitioners must consider whether there is an overriding public interest that would justify information sharing—namely, risk of serious harm. Again, that point was made by the noble Lord, Lord Patel. Confidential patient information can already be lawfully disclosed in the public interest where that information can be used to prevent, detect or prosecute a serious crime. However, such decisions about whether disclosures of confidential patient data are justified must always be made on that case-by-case basis.

I hope that I have provided some reassurance on this matter. As I indicated at the start, I know that there are particular sensitivities about sharing patient information, but, having heard the concerns, I will reflect carefully on this debate and convene the meeting that noble Lords requested ahead of Report. I hope that, with that, the noble Baroness, Lady Brinton, will be content to withdraw her amendment.

[Baroness Chakrabarti (Lab)]

Before—

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

May I remind the Committee that the noble Baroness, Lady Brinton, is participating remotely? I apologise if I interrupted somebody who wanted to speak.

[Baroness Chakrabarti (Lab)]

Forgive me, but before the Minister sits down, can I ask her to reflect and, if she wants to come back, to address the issue of who decides? I am very grateful for her assurance about intention and that there is no attempt to go further than classical practice has gone, which is a public interest exception to general patient confidentiality. But if, for example, under the new provisions, there were to be a dispute between, say, the police and the relevant health authority and/or the relevant health authority and the individual practitioner, who would decide? That is of course crucial in relation to patient-doctor trust.

[Baroness Williams of Trafford (Con)]

The decision may be challenged, but the person who decides would be the person who holds the data.

Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

Lords Hansard - part two & Committee stage
Monday 25th October 2021 Lords Chamber

[Lord Russell of Liverpool (CB)]

My Lords, I rise briefly to support what my friend, the noble Baroness, Lady Newlove, has just said. I echo her praise and thanks to another friend, the noble Lord, Lord Coaker, an ex-Parliamentary Assembly of the Council of Europe colleague, for his diagnosis—because that is essentially what this probing amendment is about.

It has become extremely fashionable for Her Majesty’s Government to do two things when they feel they are getting into difficult waters. First, they give responses whereby a series of rather large-sounding sums of money are trotted out to show that they care and are doing something about it. Usually, there is no mention of what effect those large sums are having.

The second thing Her Majesty’s Government have developed a particular tic for is developing strategies. As I have said before in this Chamber, when I hear too many strategies coming from various directions, my instinctive reaction is to reach for my tin hat and head for the trenches. By their very nature, strategies are aspirational. They try to understand a problem, and they suggest a solution. They do not guarantee what the outcomes will be, and they rarely have built into them accurate measures and KPIs to actually work out whether the much-vaunted strategy is delivering.

I entirely agree with publishing strategies, not least because in reading them and tearing them apart, you can work out whether they are complete rubbish or complete and utter rubbish or contain a germ of common sense and a direction. To take the example of the report which Her Majesty’s Inspectorate produced only three days after Second Reading of this Bill, what Zoë Billingham produced is a fairly coruscating read. If your Lordships have not read it, I recommend it, but probably not just before bedtime. It takes apart at all these strategies and initiatives, all the money that has been thrown in all sorts of directions in considerable sums over many years, and measures how effective all that effort has been. The report says in very stark terms—Zoë Billingham repeated this on “Woman’s Hour” a few days later in even clearer English—that it is simply not working because it is not joined up. Having a series of local strategies does not result in a national strategy that will deliver.

This probing amendment is designed to ask Her Majesty’s Government to look at the past, the present and the evidence of what has not been achieved, rather than the precious little that has, and not to repeat the mistakes of the past, with wonderful vague promises and aspirations—particularly when we are dealing with issues such as violence against women and girls and the effect on children, when we know we owe it to them to do better. We need proper oversight. There is a difference between a report and a strategy. We need a mechanism that measures and holds the Government and all the different statutory bodies involved to account. That is what the amendment is about, and I look forward to hearing the Minister’s reply.

[Baroness Chakrabarti (Lab)]

My Lords, I have surprised myself, because I did not intend to speak on this group, but I find myself needing to speak in support of the noble Baroness, Lady Newlove. Generally speaking, I am not a great fan of machinery of government changes, new quangos or even of new, multiple statutory duties, but if we are taking the trouble to legislate on something as serious as serious violence, we need to think about transparency, accountability, enforcement and resourcing. Talk is cheap, and legislation is a little more expensive—but the colleagues in that Box do not get paid so much. These principles have been the undercurrent of the debate on this group.

The noble Lord, Lord Blencathra, spoke eloquently on the part of the Delegated Powers Committee, and I did not disagree with a word, save to say that I was once a lawyer in the department advising him, and we are not going to blame the officials. My recollection was that Home Office lawyers were actually terrified of the Delegated Powers Committee; it was sometimes Ministers who were a little more blasé. However, every substantive point the noble Lord made was important. There is no point having guidance if it is not to be published—unless it is guidance to the security agencies. More generally, the noble Baroness, Lady Newlove, nailed it, as did my noble friend Lord Coaker. We all care about these issues. I worked on the Crime and Disorder Act when it was a Bill all those years ago, but we have heard the figures.

If it is worth legislating in this area at all, it is worth looking at how the legislation is to be enforced and resourced. That cannot be done in secret and we cannot just have directions from central government to starving local authorities; it must be public, it must be accountable, so I speak in support.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have set out the case for the various amendments in this group. The noble Lord, Lord Coaker, pointed out that certain crimes are up, and he is absolutely right. He asked, rightly, how these strategies will be different. They will work only if they can measurably show something at the end. The noble Lord, Lord Russell of Liverpool, gave us some of the solutions: first, agencies working together in a multiagency approach, as the noble Baroness, Lady Newlove, says. Sharing data trends is one of the suggestions in the draft guidance: sharing those trends, where the hotspots are and where agencies can have a better focus on the needs of certain areas. Local needs assessment is going to be crucial, but the monitoring and reviewing against those three measures that the noble Lord, Lord Coaker, and, indeed, the Government set out will be the ultimate measure of success or otherwise. He is right to point out that successive Governments have had successive strategies to try to deal with these things—that is because it is just not that easy. If it were, someone would have worked it out by now. I think that is at the heart of what we are talking about this evening.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, this group enables me to raise a concern that will not be new to the Committee or to the Minister but has not been resolved as a general issue and is possible as the Bill is drafted. It is the reluctance of immigrant women—it is usually women—suffering domestic abuse to go to the police for help because they fear that information will be shared with immigration authorities.

Last week, the Domestic Abuse Commissioner published a report entitled Safety Before Status, and one of her recommendations is that

“the Home Office should introduce a firewall between police and immigration enforcement, accompanied by safe reporting mechanisms”

I cannot resist saying that it continues

“and funded referral pathways to support.”

Perpetrators can use a victim’s insecure status as a component of coercive control. They can use status that is not insecure, but the victim is led to believe that it is. If victims are to come first, it is essential that they know that they can seek support without putting themselves in danger of deportation. I was going to ask noble Lords to imagine what this means, but I am not sure any of us can: not only the financial and accommodation implications considerations but, in some communities, shame and abandonment by the family in the country of origin. There are a number of very difficult consequences—that is putting it too mildly.

The commissioner’s report says:

“Immigration abuse and insecure immigration status as a risk factor is not always identified in local safeguarding protocols, and often the risk faced by victims … is misidentified.”


She goes on:

“Information sharing with immigration enforcement undermines trust in the police and public services”—


a point that has been made this evening—

“and enables perpetrators to control and abuse survivors with impunity. A key reason why staff in public services share information with immigration enforcement is for the perceived purpose of safeguarding a victim. Data sharing in this capacity, however, can put the victim or survivor at risk … and, even where enforcement action does not take place can compound the experience of immigration abuse, pushing victims and survivors further away from support.”

I could not let this group go by without raising that issue.

[Baroness Chakrabarti (Lab)]

My Lords, I will briefly but wholeheartedly support the thrust of all the amendments in the group. The noble Lord, Lord Paddick, as a former policeman, put it very well: if everyone tries to be the policeman society is the poorer, but effective policing is also harder to achieve. To crystallise it, let us say that the noble Lord, Lord Paddick, is the policeman and I am the teacher or youth worker. If I am under any kind of duty, or perceived to be, to hand over my notes on an automatic basis or on demand to him, there is a significant problem not just for education and youth work but for trust and confidence in civil society, and indeed for my ability to go to the noble Lord when I have a specific overriding concern about an individual young person or student.

I understand where this comes from—it comes with the best intentions, because Governments of all persuasions have gone increasingly down this road of big data for many decades. It is not a party-political point, because when you are in government you are told, quite rightly, that central government is indivisible and that there is one Secretary of State. That is a very important central government constitutional principle, yet even central government is supposed to hold data for specific purposes.

There is an obvious attraction to creating a purpose that overrides all others on a wholesale basis, especially when it is something as important as combating serious violence. However, if it trumps not just other government purposes, such as tax collection or healthcare, but begins to trump local and professional confidential duties, we are really in trouble. As I said, with the best of intentions, this will undermine trust and confidence in a number of vital services and will, I believe, undermine the role of the police. When you are looking for a needle in a haystack, do not keep building an ever greater haystack.

Iraqi Interpreters

Baroness Chakrabarti Excerpts

Thursday 14th October 2021 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, I would not use the word “shameful”. In total, from Iraq, we relocated, with their families, 1,328 people. Of course, 7,000 Afghan nationals have now been resettled in the UK under the Afghan relocations and assistance policy, otherwise known as ARAP.

[Baroness Chakrabarti (Lab)]

My Lords, given the circumstances, surely the eight in question could be granted visas today or tomorrow. More generally, it would seem that successive Governments have been quicker to assert human rights violations as justification for war over there than as justification for refuge over here. Might this not be a moment to legislate to give clearer statutory obligations on future Governments in relation to those foreign nationals who put themselves in harm’s way in support of the British state and its military operations?

[Baroness Williams of Trafford (Con)]

As I say, I agreed with the premise of the question of the noble Baroness, Lady Coussins. We must also guard against the people whom we settle here not being thoroughly vetted, because, clearly, we have a security obligation to this country as well, but the premise in relation to those who have given their lives and time for us in war-torn countries is absolutely right.