Domestic Abuse Bill

Baroness Chisholm of Owlpen Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 27th January 2021 Lords Chamber

[Baroness Chisholm of Owlpen (Con)]

My Lords, I will speak briefly on Amendment 34. I start from the point of having huge respect for the noble Baroness, Lady Lister; her expertise on this subject far outweighs mine. But I have concerns about what she is trying to do. The amendment puts a duty on the domestic abuse commissioner to investigate and report on universal credit payments. I have concerns about this because surely it is vital that we protect the independence of the domestic abuse commissioner, as we have heard from many noble Lords in discussing earlier amendments. The commissioner must be free to set the priorities she chooses; it must be wrong for her to have to report on universal credit or on any other matter.

On the rest of the amendment, as we know, universal credit is a single-household payment. Where a claimant is part of a couple living in the same household, they need to make a joint claim for universal credit. For many legacy benefits, a payment is already made to one member of the household, so the way universal credit is paid is not a new concept, and evidence shows that the vast majority of couples keep and manage their finances together. So payments into a single bank account fit with how most couples organise their finances. Therefore, I am concerned that departing from that would fundamentally change the structure of universal credit, from a single-household payment made to one individual of the benefit unit to payments split between joint claimants by default.

As we all know, a more proportionate response was the creation of split payments to prevent hardship to the claimant and their family. Anyone in a joint claim, including individuals suffering from domestic abuse, can request a split payment arrangement, and it is my understanding the DWP will support them in putting this arrangement in place.

Surely it is important that we allow the individual experiencing domestic abuse to decide whether they think split payments will help their individual circumstances. No information on why a split payment has been requested or granted will be notified to the claimant’s partner. If someone is experiencing domestic abuse, they can tell their work coach in the way that is easiest for them; it is not a requirement for their partner to be involved. As soon as there is awareness of abuse, individuals are signposted to third-party organisations that can provide expert support and advice.

Of course, access to money for those suffering domestic abuse is vital, but the approach in place ensures victims are supported, while the simplicity of the overall system is maintained for others. Sometimes reinventing the wheel can have unintended consequences. I look forward to what the Minister is going to say on this point to reassure me that all those suffering domestic abuse can manage to get their universal credit when required.

[Baroness Burt of Solihull (LD)]

My Lords, first, I would like to add my thanks to the chorus of praise that is being heaped on the tremendously clear and cogent introduction by the noble Baroness, Lady Lister.

Many noble Lords and parties outside this place—charities, other groups, news media and so on—have expressed great concern that, at a time when victims are at their most vulnerable, they are being failed by our support systems, which were designed to come to their rescue. We need to know what effect government benefits and interventions are achieving.

I support all these amendments and would have added my name to all of them if there had been space. Amendment 34 calls for the commissioner to look at universal credit split payments. It is probably a deeper question than that, as some of the discussion we have had on this has already revealed. It is a knotty, complex problem, and it very much bears investigation by the domestic abuse commissioner to see what can be done to make the whole system fairer. I have been campaigning for split payments by default for some time. Perhaps we need more, but that would be a very good start.

Amendment 150 is a neat solution to a problem of the Government’s own making. Long delays in the payment of benefits when a victim could be destitute and in need of more financial support to replace belongings they have left behind, find somewhere to stay, et cetera, can lead to extra expense just to survive, so to claw back payments made in advance when they would not have been necessary in the first place if they had been paid promptly is surely adding insult to injury. In the grand scale of moneys paid out by the Government recently to help people disadvantaged by circumstances, it is a drop in the proverbial ocean.

Amendment 152, which would disapply the benefit cap for 12 months after a new claim following a new universal credit claim for a victim of domestic abuse makes a lot of sense. It would enable a victim, desperate for accommodation and some security, to not have to worry if there is one bedroom too many for 12 months while they find their feet. I was shocked to learn from the noble Baroness, Lady Lister, that a panic room could constitute an additional bedroom, and I very much look forward to the Minster’s response on this because, if that is the case, it really needs sorting out. Is this too much to ask? Perhaps the Minister will tell us what she believes about this cap.

Finally, Amendment 153 would require the Government to assess the impact of any social security reforms on victims or potential victims of abuse. The Government need to know the effect of government policies. If we do not measure the effectiveness of what we are spending, how can we spend taxpayers’ money most effectively to help our offer to these people, the most vulnerable and in need of help in our society? They are not huge measures in terms of cost, but they will give big relief for those who are already suffering.

Domestic Abuse Bill

Baroness Chisholm of Owlpen Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 25th January 2021 Lords Chamber

[Baroness Stroud (Con) [V]]

My Lords, I want to speak in support of Amendments 2 and 4 tabled by my noble friend Lady Meyer. I remember being horrified when I first heard her personal story, many years ago. But since then, I have learned and seen that this is not an isolated incident, unfortunately.

As we have heard, while there is no single definition of parental alienation, it is recognised by Cafcass as when

“a child’s resistance or hostility towards one parent is not justified and is”,

tragically,

“the result of psychological manipulation by the other parent.”

It has devastating impacts on the child, but is a form of abuse and control of the other parent and in line with emotional abuse of a controlling and coercive nature.

As I have listened to this debate unfold, I have thought back to the battle that has taken place over a long time to include coercion in our definition of domestic abuse, and to recognise children as victims. I hope that it does not take as long for us to wake up to include parental alienation.

No one wants their relationship to break down but, when it does, both parents are responsible for the healthy development of their child. This includes promoting a proper, loving relationship, which includes frequent, regular contact between the child, both parents and their extended families.

Alienation adversely affects the psychological development of a child, as it prevents a natural, healthy bond and relationship with a parent. A child needs to be nurtured and protected; that is especially true of a baby. At a time of total dependence, a mother’s physical and emotional presence regulates the baby’s fear response and overproduction of adrenaline and cortisol. Brain scans of toddlers who have experienced abuse and been deprived of emotional nurturing were shown to have disproportionately large and active limbic systems. As a result, these “fight or flight” hormones remain in the body and the child is in a constant state of anxiety and distress, not dissimilar to a soldier suffering from PTSD.

But it is equally important that the child has a relationship with their father. This is not a gendered issue. A major study in the Journal of Applied Economics, “The Impact of Income and Family Structure on Delinquency”, found that when interactions between a child and their parent broke down, and the perception and view of the other parent deteriorated, it was the child who suffered and transitioned to emotions of abandonment, alienation and a lack of trust, with both parent and child worse off.

There is no statistically significant difference between men and women as perpetrators and victims of parental alienation. Raising issues of gender discrimination to discredit the experience of many is not the way forward. But the effects on alienated parents, who lose the trust of their children and therefore their willingness to see them due to the actions of the other parent, are devastating.

There can be no doubt that judicial decisions in cases involving children must take account of all aspects of the family dynamic, including all types of abuse. This is crucial, as we have heard this afternoon. There is a need for qualified professionals to assist in court in assessing whether there is abuse, and if so its severity, and how it should affect child-parent residence and contact arrangements. But we also need to be mindful that children’s expressed wishes in court are not always their own. They do not always feel free to express their actual wishes, particularly when young, and they can be used as a weapon by an abusive parent.

Therefore, it is important that parental alienation is recognised in the Bill as a form of abuse, so that it can be identified and addressed.

[Baroness Chisholm of Owlpen (Con)]

My Lords, before I had the pleasure of meeting my noble friend Lady Meyer, I had read about the unbelievably distressing time she went through following the alienation of her children by their father. Today she has told us that story in the most moving way. I apologise for the fact that, as she is sitting behind me, she is seeing only my back rather than my front as I make this speech.

I admire my noble friend for all she has done to raise awareness of parental alienation through the setting up of her charity and getting the academic and judicial profession to realise that parental alienation needs to be recognised. Along with her, I want parental alienation recognised, but it must be tackled in law in the right way. Hasty law makes for bad law and will not elevate parental alienation to where we all want it. This important Bill must not become a Christmas tree on which we hang too much, which leads to minimising what it wants to achieve.

I cannot agree with the amendment to this Bill. Clause 1 sets out to define domestic abuse by listing different types of abusive behaviours, and not how they may be manifested. This is important, because to do this could be risky and give more weight to how a particular type of behaviour is displayed, and potentially ignore others. As many noble Lords have mentioned, the introduction of parental alienation into the Bill could have unintended consequences due to the absence of a common definition. Consequently, in a family court, cases of parental alienation could mean whatever the judge wants it to mean.

A child may form their own reasons for resisting contact, and there are cases where a parent, for no justified reason, restricts the other parent’s relationship with the child. These are two very different situations under the parental alienation label, which serves to validate the misuse of parental alienation and to obscure the tactics of perpetrators of domestic abuse.

Parental alienation needs to be looked into in its own right. This is now being done after too many years of misunderstanding, lack of clarity and muddle among the experts. My noble friend Lady Helic mentioned how the Ministry of Justice set up an expert panel and reported in June 2020. The panel made a series of recommendations, which I do not have time to go into here, to reform the child arrangement programme in family law. Leading on from this, the Government published an implementation plan for some of the recommendations. One recommendation said:

“A review of the presumption of parental involvement … is needed urgently in order to address its detrimental effects.”


In November, the Government announced an advisory group to begin this work. I welcome these initiatives and feel strongly that this is the way forward, to make sure that parental alienation gets the recognition it deserves.

I want my noble friend to get all she feels is necessary to have parental alienation recognised in law, but my fear is that adding her amendment to this Bill will have a detrimental effect on the work that is going on, and will minimise the importance of this appalling problem. We must make sure that parental alienation is put into legislation where it can be properly dealt with, and this Bill is not that legislation.

[Baroness Burt of Solihull (LD) [V]]

My Lords, this is such a difficult issue. This afternoon we have heard strong and cogent arguments on both sides. I pay tribute to the noble Baroness, Lady Meyer, for telling her heartrending story.

Parental alienation exists, if by that we mean that the parent with care seeks to alienate the child from the parent without care. One issue is that there is such a wide range of definitions, as mentioned by my noble friend Lady Brinton. I saw it first-hand as an MP when I was involved with an organisation called the Association of Shared Parenting, formed by parents who were struggling to see their children after separation or divorce. It was based on the premise that most children benefit from contact with both parents, surely something with which no noble Lord in this House would disagree. The Association of Shared Parenting still exists, despite changes in family law, which I would have hoped would save it from needing to exist. Clearly, we need qualified professionals to assess what is going on. The bitterness of a break-up and the reluctance of the parent with care to continue the relationship through the child causes some parents to resist allowing contact by weaponising the child or poisoning their mind.

That is why I initially added my name to these amendments, but I have since removed it, because I do not believe that this is what we are talking about today. We are talking about cases in the criminal courts, not of divorce settlements necessarily but of domestic abuse. The problem with this amendment, which it took me some time to get my head around, is that the abused parent could actually be painted as the abuser. As Vera Baird, the Victims’ Commissioner for England and Wales, who has been quoted more than once already today, says:

“It puts victims of domestic abuse into the ridiculous position where, if they raise their abuse in the family courts, however well they have actually behaved, that can trigger unfounded allegations of parental alienation that could result in their children being placed with the abuser.”


She continues:

“This attempt to turn the fact that the perpetrator has terrified their partner into a destructive criticism of that partner is typical coercive controlling behaviour.”


My noble friend Lady Brinton and the noble Baronesses, Lady Helic and Lady Newlove, the former Victims’ Commissioner, are absolutely right. With sympathy to all parents suffering the anguish of break-up, the interests of the child must be paramount. I do not envy the task of the family courts in resolving these cases. We must rely on properly trained experts to decide. On balance, I believe that allowing Amendments 2 and 4 would do more harm than good to victims and dilute the definition of domestic abuse in this Bill.

Domestic Abuse Bill

Baroness Chisholm of Owlpen Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 5th January 2021 Lords Chamber

[Baroness Chisholm of Owlpen (Con)]

My Lords, this Bill brings us transformative legislation and gives us the opportunity to transform the response to domestic abuse. It has come not a moment too soon, at a crucial time when we know that calls to the NDA Helpline are up by at least 49%. Worryingly, calls seem to have been driven by third-party reporting, showing that there is significant underreporting by actual victims. Among other charities, the NSPCC helpline has received an increased number of calls with concerns about children. It is on children that I want to concentrate today.

Children are often the hidden victims of domestic abuse, which leads to a devastating impact on their lives. We see such children presenting with mental and physical problems. They have difficulty settling into a school environment, which in many cases leads to poor educational outcomes. Once they become adults, they are more likely to enter abusive relationships. Under the Bill, young people aged 16 and over can be considered as perpetrators and can be criminalised for sexual offences. Young people who harm are often victims themselves. They need to be recognised as children and given specialist help leading to a change in their behaviour which could have a positive impact on their lives. Can my noble friend the Minister reassure me on this point?

Statutory support for all children, wherever they are living, is vital. The Bill ensures that children in safe accommodation receive statutory support but leaves the majority who live at home or in the wider community without support. It is vital that the Bill is strengthened to include community-based services, a position supported by the Domestic Abuse Commissioner.

Community-based services provide a crucial lifeline of support to survivors of domestic abuse and their children. Around 70% receive support via community-based services, which provide court support, health services, housing advice and emotional support, helplines and perpetrator programmes, as well as local agencies offering drop-in services for children, among many more vital services of help and support. I fear that excluding community-based services could lead to unintended consequences; local authorities could feel it necessary to divert funding from community-based services to accommodation-based services to ensure that they meet their duty requirements. The Bill should be amended to provide a statutory underpinning to commission community-based services.

It is my understanding that the Government want to wait for the domestic abuse commissioner to complete the mapping research for all domestic abuse services, which is indeed important, but we know that there is already evidence on demand. So I ask the Minister to consider a commitment in the legislation to, if necessary, extend powers at a later stage.

There must be a holistic approach to domestic abuse; support must be provided to all victims and survivors, including children, no matter where they live and regardless of their status. Community and accommodation-based services, along with specialist services, would ensure that there was support for prevention along with early and late intervention.

I look forward to hearing from my noble friend, and I take this opportunity to thank her and the Bill team for dealing with queries ahead of today. I know that the Bill is in formidable hands as I have worked with the Bill team, led by Charles Goldie, and I have worked with my noble friend the Minister. I know that we have ample aid with my noble friend Lord Parkinson as well, and my honourable friend in the other place, Victoria Atkins.

Domestic Abuse

Baroness Chisholm of Owlpen Excerpts

Wednesday 11th November 2020 Lords Chamber

[Baroness Williams of Trafford (Con)]

You cannot decouple domestic abuse from mental health trauma. Surely the two go hand in hand, not only for the woman—it is usually a women—who is suffering abuse at the hands of an abusive partner but also, usually, for her children, who feel those effects and the trauma for a very long time, if not the rest of their lives.

[Baroness Chisholm of Owlpen (Con)]

I ask my noble friend the Minister when she thinks the Domestic Abuse Bill will come to this House? She said “soon”; does that mean “soon, soon” or “soon, soon, soon, soon”? When it does come, can she make sure that children, from birth to the age of 18, are seen as victims and not witnesses so that they can get the support that they need for the trauma that they have experienced?

[Baroness Williams of Trafford (Con)]

My noble friend will know that I would introduce the Domestic Abuse Bill into this House tomorrow if I could, but a number of pieces of legislation need to get through this House. It will probably be early in the new year but I will press—the Leader of the House is sitting there—for that Bill to come to this House as soon as is practicably possible. On the question of children, my noble friend will know that children will benefit from a number of measures in the Domestic Abuse Bill, including—I note what I said in the last answer—the fact that it ensures that they are now recognised as victims in their own right. The Designate Domestic Abuse Commissioner has been appointed to encourage good practice in, among other things, the provision of protection and support for children affected by domestic abuse.

Violence Against Women

Baroness Chisholm of Owlpen Excerpts

Thursday 25th June 2020 Lords Chamber

[Baroness Williams of Trafford]

The noble Lord is right that there is a way to go on this with regard to some of those self-reliant communities that he talks about. We have more to learn about them and therefore some of the interventions that might be necessary to deal with some of the hidden harms that occur in them.

[Baroness Chisholm of Owlpen (Con)]

A multiagency approach to combating violence against women is obviously fundamental. What are government departments doing to come forward with a joined-up strategy so that women can feel safe in coming forward?

[Baroness Williams of Trafford]

My noble friend is right that without a multiagency approach—in other words, government departments coming together—it will be very difficult to tackle this issue. She will know about the troubled families programme, which brings together a lot of different agencies; indeed, through that programme we have unearthed far higher levels of domestic abuse than we first thought. I can also tell her that the Home Office, the MoJ and the MHCLG have all announced funding to support victims. We must work together as a whole Government to tackle this issue.

Data Protection Bill [HL]

Baroness Chisholm of Owlpen Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 15th November 2017 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendment 93A in my name and that of my noble friend Lord Stevenson of Balmacara is the first amendment in a small group before the Committee this afternoon. They are probing amendments to allow us to begin to debate the issues around Schedule 3, specifically Part 2 and matters concerning health data and social work data.

Amendment 93A would delete the words “or another individual”. I want to understand clearly what the Government mean when they refer to the “serious harm test” for the data subject and to this very wide catch-all phrase, “or another individual”. Amendment 94A would delete specific wording as detailed in the Bill and replace it with the wording in my amendment.

I can see the point of paragraph 4(1)(c) of Schedule 3, but do not see why the Government would not wish to rely on the definition of lacking mental capacity, as defined by the Mental Capacity Act 2005. Can the Minister explain, if my amendment is not going to be accepted, why the Government appear to be relying on weaker words in this section?

Amendment 94B would delete paragraph 4(2)(a) of Schedule 3. Again, I stress that this is a probing amendment to give the Minister the opportunity to set out clearly how this is going to work so that it does not cause problems for research but respects people’s privacy regarding the data that they have been provided with.

On the other amendments in the group, Amendment 94C looks to broaden the definition of social work data to include education data and data concerning health, by probing what the Government mean by their definition of social work data in the Bill. Amendment 94D probes, regarding paragraph 8, the details on data processed by local authorities, by the regional health and social care boards, by health and social care trusts and by education authorities.

With Amendments 95A and 95B, I am looking for a greater understanding of what the Government mean. The wording in the Bill which these amendments would delete is quite vague. We want to understand much more what the Government are talking about here. I beg to move.

[Baroness Chisholm of Owlpen (Con)]

My Lords, the Bill sets new standards for protecting general data, in accordance with the GDPR, which will give people more control over use of their data and provide new rights to move or delete personal data. However, there will be occasions when it is not in the best interests of the data subject for these rights to be exercised, or where exercising them might impinge on the rights and freedoms of others. Schedule 3 considers this issue in the specific context of health, social work, education and child abuse data. It provides organisations operating in these fields with targeted exemptions where it is necessary for the protection of the data subject or the rights and freedoms of others. Importantly, much of Schedule 3 is directly imported from existing legislation.

The amendments which the noble Lords, Lord Stevenson and Lord Kennedy, have tabled focus on exemptions available for healthcare and social services providers. Let me deal first with the amendments relating to the healthcare exemptions. Amendment 93A would amend the serious harm test, in paragraph 2 of Schedule 3, by removing the reference to harm caused to other individuals. This is an important safeguard. For example, if a child informed a healthcare provider that they had been abused by a relative and then that person made a subject access request, it is obvious that disclosure could have serious consequences for the child. I am sure that this is not what the noble Lords envisage through their amendment; we consider there are good reasons for retaining the current wording. As I said earlier, these provisions are not new: they have been imported from paragraph 5 of the Data Protection (Subject Access Modification) (Health) Order 2000.

Amendments 94A and 94B would amend the exemption in paragraph 4 which allows health professionals to withhold personal data from parents or carers where the data in question has been provided by the data subject on the basis that it would not be disclosed to the persons making the request. Again, neither of these provisions is new. They too were provided for in paragraph 5 of the 2000 order and we think they remain appropriate.

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

94: Schedule 3, page 140, line 35, at end insert—
“(ea) the Sheriff Court Adoption Rules 2009;”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

95: Schedule 3, page 142, line 43, after “1970” insert “or the Social Services and Well-being (Wales) Act 2014”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

96: Schedule 3, page 146, line 4, at end insert—
“(ea) the Sheriff Court Adoption Rules 2009;”

--- Later in debate ---

Moved by

[Baroness Chisholm of Owlpen]

103: Schedule 4, page 152, line 6, leave out paragraph (d)

--- Later in debate ---

[The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)]

If Amendment 108F is agreed to, I cannot call Amendment 109 due to pre-emption.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble Lord for turning the attention of the Committee to the accreditation process. I recognise the intention behind his detailed amendments; namely, to reduce the administrative burden associated with requests for accreditation decisions to be reviewed and, subsequently, for the review process to be appealed. Under the new regime, both the Information Commissioner and the United Kingdom Accreditation Service will be able to accredit organisations that wish to offer a certification service for compliance with data protection legislation. Many organisations may wish to make use of certification services to support their compliance with the new law, and the accreditation process is intended to support them in choosing a provider of certification.

Schedule 5 establishes a mechanism for organisations that have applied for accreditation to seek redress against a decision made by UKAS or the Information Commissioner. The mechanism process has two elements. In the first instance, organisations can seek a review of the accreditation decision. Then, if they are unhappy with that review process, they can lodge an appeal. I share the noble Lord’s desire to minimise the administrative burden created by that review and appeal mechanism. Amendments 108C and 110A limit the documents that may be submitted when appealing. Amendment 108E reduces the time to lodge an appeal. Amendment 108F removes the ability of the appellant to object to members of the appeal panel.

I assure noble Lords that we want a fair and straightforward review and appeals mechanism. Our choice of process, time limits and other restrictions mirrors the appeals process that UKAS currently operates. That process is as provided for by the Accreditation Regulations 2009. Maintaining a consistent appeals process creates administrative simplicity and efficiency. The Government consider that the process in Schedule 5 strikes the right balance between limiting the administrative burden on the accrediting bodies, while also providing applicants with sufficient means of redress.

To add them up, there are four reasons why we feel that what is in there now works well: our choice of process, time limits and other restrictions limits the appeals process that UKAS currently operates; it maintains a consistent appeals process, which creates administrative simplicity and efficiency; it strikes the right balance between limiting the administrative burden but provides applicants with sufficient means of redress; and the accreditation process will give organisations confidence that they are choosing the right provider of certification. I hope I have addressed the noble Lord’s concerns and urge him to withdraw the amendment.

[Lord Stevenson of Balmacara]

I am grateful to the Minister for her response. I think I may have slightly misled the Committee: I think I am right in saying that this is a new process, brought in by the Bill. It was not in the Data Protection Act 1998. I should have said that there is an additional reason for wanting to scrutinise it, to make sure we are looking at the right things.

I should have asked one question, to which I do not expect a response now, unless the Minister has it to hand. I notice that the national accreditation body, which has to be set up by member states because of the GDPR, is set up under another EU instrument because it is the designated body under the Accreditation Regulations 2009. I take it that they will be brought forward in the withdrawal Bill as necessary regulations for that to be provided.

[Baroness Chisholm of Owlpen]

As the noble Lord said, the process is new to the GDPR and not in the 1995 directive or the DPA. The GDPR requires member states to ensure that certification bodies are accredited by the ICO and/or the national accreditation body. As such, the UK Government will need to demonstrate their compliance with that requirement, which Clause 16 and Schedule 5 fulfil.

[Lord Stevenson of Balmacara]

I thank the Minister for that response. I am sure that the narrow point about the regulations can be dealt with by correspondence, so I will not press it today. I beg leave to withdraw the amendment.

Drugs Policy: Departmental Responsibility

Baroness Chisholm of Owlpen Excerpts

Tuesday 7th February 2017 Lords Chamber

[Baroness Williams of Trafford]

My Lords, I do not know how influential I am, but I certainly agree that the Government are absolutely clear that reducing the harms caused by drugs needs to be part of a balanced approach. That means acting at the earliest opportunity to prevent people starting to use drugs in the first place and escalation to more harmful use, and providing evidence-based treatment options that can be tailored to individual need. The noble Lord talked about the rise in certain drug deaths. It is very concerning. PHE will continue to work with the Government and local authorities in delivering tailored, effective responses according to specific local issues. The reasons behind some of the increases in drug-related deaths are multiple and complex, which is why we established an expert group that has made recommendations to curb the number of people dying from drug misuse.

[Baroness Chisholm of Owlpen (Con)]

My Lords, a charity called the Nelson Trust goes into prisons to help prisoners with drug rehabilitation. Does the Minister feel that this is the way forward and that we ought to concentrate more on this? By the time prisoners come out, it is often too late to try to treat their addictions.

[Baroness Williams of Trafford]

I thank my noble friend for that question and respect her great experience in the area of health. It is absolutely right that prisoners should receive treatment for both prevention and their drug use, because when they come out of prison, it is very important that they have recovered from their drug use and the issues associated with it.

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

3rd reading (Hansard): House of Lords
Monday 19th December 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, as the noble Baroness, Lady Hamwee, said, these amendments were discussed on Report a few days ago. Amendments 1 and 2 add the world “reasonably” to this section of the Bill requiring someone to confirm their nationality. In that discussion, I made the point that in this section of the Bill the wording “without reasonable excuse” is used in respect of suspects in new Section 43B(1) and again in new Section 46C(1), and on that page there is also “for a reasonable cause”. That is different from the provisions for police and immigration officers. I asked the noble Baroness, Lady Chisholm, to write to me, and I think she was going to, but I have not yet had the letter. It is on its way. That is good to know. When she replies, I hope she will shed some light on why the Government do not need the same provision for both groups in this part of the Bill.

[Baroness Chisholm of Owlpen (Con)]

My Lords, these amendments again seek to provide in the Bill that a police or immigration officer exercising the powers in Clauses 161 and 162 to require a suspected foreign national to state their nationality and provide their nationality documents on request must act reasonably.

I am grateful for the opportunity to clarify the Government’s position. On Report, the noble Lord, Lord Kennedy, suggested that the drafting of these clauses seemed inconsistent, given that, on the one hand, there was no express requirement on an officer to exercise the powers reasonably but, on the other hand, the defence operated only where the accused had a reasonable excuse. There is no inconsistency here. The reasonable excuse defence is a necessary safeguard which allows a suspected foreign national to offer legitimate reasons to an officer and, if necessary, a court, for their non-compliance. This might include, for example, circumstances where a document may have been destroyed with reasonable cause—a scenario which is also catered for elsewhere in immigration legislation. The requirement for officers to act reasonably in the first instance is, in the Government’s view, a quite different point.

I acknowledge that there are some variations in the drafting of the large number of existing Acts which set out UK immigration law. It is also accepted that certain actions in the Immigration Act 2016 explicitly require those exercising coercive powers to act reasonably. However, it is not the case that, in the absence of an explicit reference to that effect, officers are able, through that omission, to act unreasonably. This language is not universally applied, or required, nor is it used elsewhere in legislation which deals with the seizure or retention of nationality documents.

In exercising the powers conferred by Clauses 161 and 162, police and immigration officers must act in accordance with public law principles, which include acting reasonably, or they may be challenged in the courts by means of judicial review. I also note that the wording of these clauses is consistent with that used elsewhere in immigration legislation—for example, Section 17 of the asylum and immigration Act 2004, which uses the same language for similar purposes. Section 17 deals with the retention of documents that come into the possession of the Secretary of State or an immigration officer in the course of exercising an immigration function.

Finally, I should add that operational guidance in respect of these new powers will make it clear to officers the circumstances under which these powers may be exercised. In the light of this further assurance that these powers may be exercised only when an officer has a reasonable suspicion that an arrested person may not be a British citizen, I hope that the noble Baroness will be content to withdraw her amendment.

However, I will just add a couple of things: of course we are very happy to continue to engage with the noble Baroness as our plans for pilots develop; she is also right that Hampshire was one of the places that was suggested for the pilot.

[Lord Kennedy of Southwark]

Before the noble Baroness sits down, did I hear her correctly say that these powers can be exercised only when an officer has a reasonable suspicion? If that is the case, then I do not see why it should not be in the Act and this amendment accepted.

[Baroness Chisholm of Owlpen]

We take the view that the police should always act in a reasonable way.

[Baroness Hamwee]

I think that encompasses our arguments.

With regard to the pilots, I am grateful for the noble Baroness’s assurances, but had there been consultation on the choice of Hampshire, she might have had some useful input.

I do not know whether the noble Baroness is in a position to tell us whether there is a distinction between an immigration officer or constable “suspecting” under these clauses in the Bill and an officer having “reasonable grounds for believing”. Are these different tests? It seems to me that suspecting and having reasonable grounds for believing are not the same, but I think she is telling us that they are. Does she have anything that she is able to add?

[Baroness Chisholm of Owlpen]

I am slightly muddled by what the noble Baroness is saying. Could she explain that a bit more?

[Baroness Hamwee]

I take the point that different formulae are used in different parts of immigration law, but the Immigration Act to which I have referred provides for an officer to have “reasonable grounds for believing” something, while under this Bill, he simply has to “suspect” something. “Reasonable grounds for believing” seems to me to be a much tougher test than simply suspecting. The noble Baroness may have something she can share with the House on that.

[Baroness Chisholm of Owlpen]

Suspecting and believing are slightly different words, obviously. Perhaps I had better write to the noble Baroness with more clarification.

[Baroness Hamwee]

My Lords, I wonder whether this is something that we can add to the discussion or consultation on the pilots. If one is going to pilot two provisions in the same place, carried out by the same officers and prompted no doubt by the same observations, it would be quite interesting to have them either able or not able to require documents from the same people, but not able to do so because in one case the ground applies and in the other it does not. I realise we are getting into very fine detail, but it will be very real detail in the application. It is not the noble Baroness’s fault, but I can see that we are not going to be able to make further progress on this today. I beg leave to withdraw the amendment.

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[Baroness Chisholm of Owlpen]

My Lords, as these amendments are purely consequential on various non-government amendments added to the Bill on Report, the Government will not oppose them. We are reflecting on the debates on the amendments put forward on Report by the noble Lord, Lord Rosser, and the noble Baronesses, Lady Royall and Lady Brinton, and we will set out our position when those amendments are considered by the House of Commons on 10 January.

Amendment 14 agreed.

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

Amendment 181BA, which again I support, proposes a requirement for a full review within 12 months of the commencement of these provisions. It is always wise, where possible, when bringing in new requirements which could be deemed controversial or as affecting certain people disproportionately, to build in a review process. That enables good law to be made and, where necessary, for problems to be highlighted and action taken.

[Baroness Chisholm of Owlpen (Con)]

My Lords, as we have heard, this group of amendments relates to the provisions in Clauses 144 and 145, which confer powers on police and immigration officers to require a suspected foreign national to state their nationality after arrest and to produce nationality documents where required. Following the debate in Committee, government Amendments 180, 181 and 194A seek to address concerns raised then by the noble Baroness, Lady Hamwee, and the Joint Committee on Human Rights. The noble Baroness has tabled a number of amendments of her own, designed to push the Government a little further, but before I respond to these I shall explain the government amendments.

Amendment 180 concerns the situation where a UK national does not possess a passport and is otherwise suspected to be a foreign national. As recommended by the JCHR, this amendment clarifies that officers are able to take into account alternative documentary evidence which would establish an arrested person’s entitlement to a British passport. Supplementary guidance will also be provided to make it clear to officers what specific evidence would normally be sufficient to establish nationality and can therefore be taken into account in that assessment. Given this, I do not believe that Amendment 180A, which seeks a similar end, is necessary.

Amendment 181 will enable us to pilot these provisions on a limited basis to ensure that police processes are robust and that there are no adverse consequences for black and ethnic minority British nationals. Following the pilot and in advance of the rollout of these provisions, we will lay a report before Parliament on the outcome and effectiveness of the pilot. Among other things, the report will include a full equality impact assessment. Given this undertaking, I hope that the noble Baroness will agree that Amendments 181A and 181B are also unnecessary. The noble Baroness wanted to know where the pilots will take place. Subject to agreement with the police, one pilot will take place in Hampshire and the other has yet to be agreed.

Amendments 179A and 179B seek to make it clear that an officer may impose the requirements in Clauses 144 and 145 only when it is reasonable to do so. However, it is already the case that officers may only ever act on reasonable grounds when exercising their powers. Accordingly, I put it to the noble Baroness that there is no need to write this into the Bill. Moreover, in respect of the offences in these clauses there is, in each case, a reasonable excuse defence.

Finally, Amendment 181BA seeks to provide for a post-legislative review of not just the provisions in Clauses 144 and 145 but also the powers conferred by the Immigration Act 2016 to search for and seize driving licences held by an illegal migrant. There is an established procedure for post-legislative review of all legislation, which takes place three to five years following Royal Assent. Consequently we do not need to make express statutory provision for this.

While this is not the occasion to reopen the debates on last Session’s Immigration Bill, I shall just make a couple of observations about the new powers in relation to driving licences. During the debates last Session on these powers, my noble friend Lord Bates made a number of commitments addressing the concerns then raised by the noble Lord, Lord Paddick, including a commitment to pilot the power to search for a driving licence in one or two police areas. The pilot will test the operational details so that any impacts can be identified by the pilot scheme and addressed. My noble friend also committed to issuing guidance to police and immigration officers on the operation of these powers and to a public consultation on that draft guidance before implementation. The consultation will raise awareness of these powers and provide an important gateway through which communities will be able to consider and comment on, among other things, appropriate safeguards.

It is also unnecessary to set up an ad hoc independent review every time we wish to scrutinise police forces’ use of specific powers; Her Majesty’s Inspectorate of Constabulary exists for this purpose. The inspectorate independently assesses police forces and policing activity in the public interest. The PEEL inspection programme —an annual, all-force inspection which assess forces’ efficiency, effectiveness and legitimacy—considers both the extent to which forces use their powers effectively and the extent to which forces treat the people they serve with fairness and respect. In addition, the Home Secretary has the power to commission HMIC to inspect and report on any particular issue if she feels that it requires greater scrutiny than it has received in the course of rolling inspection programmes.

HMIC has a strong track record in shining a light on police use of intrusive powers and has not pulled any punches in its reports on stop and search. It is largely due to HMIC’s findings that the previous Home Secretary announced increased scrutiny of road traffic stops through their incorporation into the best use of the stop and search scheme. We are therefore confident that the necessary systems to provide effective scrutiny of these powers are already in place. The clear statutory safeguards against the misuse of this power, the commitment to a pilot and a public consultation and the role of HMIC mean that this amendment is unnecessary.

The noble Baroness also asked about the Delegated Powers and Regulatory Reform Committee’s recommendation. As this is essentially a commencement power, we are not persuaded that the regulation should be subject to a parliamentary procedure. However, I assure the House that we will set out in the regulations the duration of any pilot, and I have already undertaken to lay a report before Parliament on the outcome and effectiveness of the pilot before we commence these provisions more widely.

I trust that this rather lengthy explanation of the government amendments will provide the necessary reassurance to the noble Baroness, Lady Hamwee, and that she will therefore be content to withdraw her amendment.

[Lord Kennedy of Southwark]

Before the Minister sits down, will she address the point I made earlier about page 163 where “reasonable” is used a number of times in respect of suspects but not of police officers. Why is that distinction there? If the Minister would like to write to me, that is fine, but I think it is odd that there is that distinction.

[Baroness Chisholm of Owlpen]

I will write to the noble Lord to clarify that point.

[Baroness Hamwee]

My Lords, I am grateful to the noble Lord, Lord Kennedy. When the noble Baroness writes, perhaps she can also explain this about what the Government did in the Immigration Act 2016. For this purpose, I simply refer to Section 43, which introduces a new paragraph in Schedule 2 to the 1971 Act providing for power to be exercised only if the authorised officer has “reasonable grounds” for believing that, in this case, the driving licence is on the premises. The very fact that that terminology is used in legislation which we passed a mere few months ago must raise the question of why it is not included in the comparable clause in this Bill. I know that the noble Baroness cannot answer this at the moment, but I hope that as well as writing, she might be able to discuss this with officials. It is an intrinsically important point, but also a technical one, as to why it should not be included in this Bill. Perhaps we can come back to this at Third Reading. I am not of course expecting her to do anything other than nod sympathetically, as she is doing.

The Delegated Powers and Regulatory Reform Committee will no doubt consider the Government’s response, but I note that on the question of the affirmative procedure, the Minister said that she did not think that these regulations should be subject to parliamentary procedure. The committee also suggested, or would require, that the Secretary of State should consult interested parties before making the regulations. I am not sure—I might have missed it—whether she referred to the maximum duration of pilots. I accept that there will be post-legislative reviews, and that everything has to be kept under review, but it is the importance of the subject matter which led us to raise the point about requiring an ad hoc review.

I do not know whether the Minister has any information as to whether the pilots and guidance under the Immigration Act are going to be introduced in tandem with, and in the same areas as and so on, the pilots under this Bill. Does she have any information about that?

[Baroness Chisholm of Owlpen]

I think that is still under discussion at the moment with various authorities.

[Baroness Hamwee]

My Lords, we will see, but I am glad to note the Home Office’s acceptance of the importance of the issue, which I never had in doubt. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Wigley (PC)]

My Lords, I realise that the House wants to move to a vote on the very important and significant debate we have just had. I do not know whether there is a mechanism whereby I could come back to Amendment 185 at Third Reading so that we do not lose this debate because this, also, is a very important question with regard to the anonymity or otherwise of people involved in rape cases. I would be grateful for some guidance on this matter.

[Baroness Chisholm of Owlpen]

I am afraid that if the noble Lord wants to press this amendment he has to press it now. We cannot go back to it again because we have to go in order.

[Lord Wigley]

I will speak as rapidly as I can and I am sorry that this is going to detain the House. Amendment 185 is in my name and those of the noble Baronesses, Lady Howe of Idlicote, Lady Brinton and Lady Cohen of Pimlico. I thank them for their support.

I do not apologise in the slightest for returning to a matter that I raised in Committee, since most of the countercase put by the Government in Committee triggered dismay and incredulity among those involved in cases such as those I highlighted then. To the extent that there was any validity in the Government’s countercase, I have adjusted the wording of the amendment to respond constructively. The impact of this new clause would be to prohibit the police in England and Wales from disclosing the name of the victim of rape or attempted rape to the alleged perpetrator—

--- Later in debate ---

[Baroness Cohen of Pimlico (Lab)]

My Lords, my name is also attached to this amendment, but I would not normally have spoken given that the noble Lord, Lord Wigley, and the noble Baroness, Lady Howe, were such distinguished proponents of it. At the moment there is a choice of injustices. Perhaps we should have provided—and I should be glad to provide at Third Reading—a clause saying that a judge may decide whether the name should be disclosed. This is, however, also a modern offence. In the old days it might not have mattered very much if you disclosed only the name of the accuser. These days, the perpetrator has no trouble at all, because of the spread of social media, and these cases are more frequent.

One reads of cases all the time and I want to disentangle this from the issue of rape. It is not entirely about rape. It is about being knifed in the street or pushed under a Tube train by a perfect stranger, as I am sure we have all read about, and being terrified thereafter in case he or she comes and does it again. Therefore, I would be very grateful if the Minister would understand the strength of feeling and the injustice being done. If we can put in a clause at Third Reading offering the possibility of review by a judge if necessary, I would be glad to do so.

[Baroness Chisholm of Owlpen]

My Lords, as the noble Lord, Lord Wigley, has explained, this amendment is designed to strengthen the protection for the victims and witnesses of a sexual or violent assault by a stranger. I sympathise with this objective but, as I indicated in Committee, there are difficulties. I am grateful to the noble Lord for taking on board the points I made in response to his earlier amendment on this issue. He has now come forward with a substantially revised amendment. I fear, however, that this serves only to highlight again the challenges of legislating in this area.

It is vital that the criminal justice system supports and protects victims and witnesses, particularly victims of sexual offences, who are especially vulnerable. As I stated in Committee, there are already a number of means whereby those at risk of further harm, or who are deemed to be intimidated, can be safeguarded. I shall not repeat these measures now, other than to say that there is a wide range of options available for their protection. To intimidate a witness is a very serious criminal offence.

Of course, the right to a fair trial is a cornerstone of our criminal justice system. The noble Lord, Lord Wigley, has rightly acknowledged this in the revised amendment before us today. However, to say that the identity of a victim or a witness may be withheld from the defendant except where to do so would compromise the defendant’s right to a fair trial is almost always a contradiction in terms. As my noble friend Lord Hailsham said, fundamental to a fair trial is the right of the accused to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. The accused cannot be expected to prepare a proper defence if he does not know who is accusing him of the alleged crime, and without that there can be no fair trial.

In exceptional circumstances, there is already provision for anonymity of victims or witnesses from the accused, through a witness anonymity order. A number of conditions must be met for this to apply, including that it would protect the safety of the witness or another person, that it is in the interests of justice for the witness to testify and the witness would not testify if the order were not made, and that it would be consistent with the defendant receiving a fair trial. It is an exceptional measure of last resort. This means that in the minority of cases where those accused of violent or sexual assault are strangers, the court can decide to grant victim or witness anonymity, provided these other conditions are met.

[Lord Wigley]

On that very point, if the court determines at that stage whether or not to release information, surely there is every case to get consistency prior to that. I quoted five cases, I think it was, of different responses by the police in different parts of London. The absence of any consistent approach to this underlines that there is a serious problem. If the Government were willing to review how the mechanism of referring to the courts, which the Minister mentioned, can be brought in in a way that avoids the variety of ad hoc responses by the police, that might be one way forward. I would be very grateful if the Minister would consider that.

[Baroness Chisholm of Owlpen]

The problem is that, as I said earlier, it is an exceptional measure of last resort. This means that, in the minority of cases where those accused of violent or sexual assault are strangers, the court can decide to grant victims and witnesses anonymity, provided that the conditions are met.

While I cannot for these reasons support the noble Lord’s amendment, he has raised an important point about the consistency of practice both across and within police forces about the disclosure of the address and telephone number of a victim. Crown Prosecution Service policy on prosecuting cases of rape clearly states that addresses of victims and witnesses should not be disclosed to the defendant during court proceedings. The same is true of victims’ or witnesses’ telephone numbers or email addresses. However, we do not know how aware the police are of this policy, so we will explore with the College of Policing whether it would be appropriate for additional guidance to be given to police forces to ensure that this practice is universally followed.

[Baroness Cohen of Pimlico]

Before the Minister sits down, I say that in the case with which the noble Lord, Lord Wigley, and I are most familiar, the police disclosed the victim’s name quite automatically to the perpetrator about 20 minutes after they had arrested him on the evidence of two policemen. It is all very well to say that you can wait to have a court make a decision, but a policeman made a decision at the earliest possible stage, and that is the issue that the noble Lord, Lord Wigley, and I are attempting to address.

[Baroness Chisholm of Owlpen]

I am sure the noble Baroness will understand that I cannot go into individual cases. CPS policy on prosecuting cases of rape clearly states that witnesses’ addresses should not be disclosed to the defendant unless already known. The CPS does not disclose the addresses, email addresses or phone numbers of victims or witnesses in any case unless already known. That is why we are looking at ways to ensure that this approach is similarly applied by police forces.

While the amendment is well intentioned, for the reasons I have given, I do not consider that it will help advance the noble Lord’s cause. He has alighted upon an important issue regarding the consistency of practice adopted by criminal justice agencies in relation to the disclosure of a vulnerable victim’s address or other contact details, and I am ready to explore further how this might best be addressed. On that basis, I hope the noble Lord will feel able to withdraw his amendment.

[Lord Wigley]

My Lords, I am grateful. I realise that the House wants to move forward rapidly. I was grateful for the contributions made by the noble Viscount and the noble Lord, Lord Carlile, to the contra argument with regard to the rights of the defendant. Of course I recognise that they are important. The question seems to revolve around the inconsistency of the police response, which the Minister has accepted needs to be looked into, and whether, while it was reasonable to withhold addresses and telephone numbers in the past, it might now be necessary to withhold the name because of the ease of getting addresses from information available on computer-based systems these days. If the Government are prepared to review those aspects of the question, we will feel that we have made some progress on this issue. If the Minister can indicate that the Government are willing to look at those aspects, I will be prepared to withdraw the amendment.

[Baroness Chisholm of Owlpen]

We realise that certain aspects need to be addressed, which is why I said that I am ready to explore further how this might best be addressed.

[Lord Wigley]

I am grateful to the Minister. On the basis of that assurance that there will be an investigation into those aspects of the question, I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the noble Baroness. Lady Hamwee, for speaking to me beforehand; we have had some discussion. I would like to go straight to answering both those questions, from my perspective, as I was the person who tabled the original amendment. I must declare my interest, as I now chair the National Mental Capacity Forum. I took over and started to do that in September of last year.

In terms of consultation, when I was listening to the voice of the person who had been on the receiving end of the Mental Capacity Act it was very evident very quickly that the automatic requirement for an inquest was causing an enormous amount of distress to families. It was also through that process that Ann Coffey MP consulted widely in her constituency and further afield—and coroners have been asked. So this was not brought forward lightly.

There was also consultation with the adviser to the Care Quality Commission, who feels strongly that DoLS are a useful process for safeguarding people who are particularly vulnerable. He was very supportive of the process following the judgment of the noble and learned Baroness, Lady Hale, which clearly laid out the acid tests under which DoLS should be applied.

As for cost savings, I see there being absolutely none. Actually, there is a possibility that costs might go up. Although unnecessary inquests will not, I hope, happen, so coroners will not be taken away from inquests that really do need to happen by the bureaucratic process of the unnecessary inquests, of which there were almost 7,000 last year, that find that death was due to natural causes, it is possible—indeed, I hope that this will happen—that more people will be inclined to make a deprivation of liberty safeguards application if there is a doubt about whether somebody is being deprived of liberty, because the deterrent of knowing how much distress would be caused to people, including families, will be removed.

Care home, clinical and hospital staff find it very distressing to say, “We’re going to go through this process of applying for a deprivation of liberty safeguards authorisation—and, secondarily, by the way, that means that there will automatically be a coroner’s inquest”. For those who culturally need a burial very rapidly after somebody has died, that causes profound upset—as it does to other families. As one coroner’s officer said, to me, “Sadly, sometimes the first time the families realise there has to be an inquest is when I have to pick up the phone to tell them, and they are deeply distressed”.

I suggest that by putting this measure in place we are removing a barrier to the deprivation of liberty safeguards, which are a way of protecting the rights of the most vulnerable person, because there is an inspection process. It must be necessary, proportionate and in the person’s best interests, and the person has a power to appeal to the Court of Protection against a deprivation of liberty safeguard. So people have far greater rights than somebody who ought to have a deprivation of liberty safeguard authorisation in place but where no application is being made. So I hope that this will increase the rights of the most vulnerable as well.

The process of scrutiny is that the Care Quality Commission has to be notified when a standard DoLS is in place. It will know whether a place has unusually many or unusually few DoLS applications, and will look in depth at the quality, the atmosphere and the culture around the way that care is given there. With all due respect to coroners, I think that the CQC is far more likely to detect where things are going wrong than a coroner’s inquest on a single case. But I reiterate that if a family have any concerns whatever, irrespective of whether there was a DoLS in place, they can ask for a coroner to look at a case when somebody has died. If they are suspicious, they can ask the question.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for raising this important issue. The Government take seriously their responsibilities to the very vulnerable group of people in society whom this amendment concerns. I also thank the noble Baroness, Lady Finlay, for her deep knowledge of this issue, and for the words that she has spoken this evening.

Coroners in England and Wales play a critical role in investigating the deaths of persons where there is a suspicion that death may have resulted from violence or unnatural causes, or indeed where the cause of death is unknown. Coroners will continue to have this duty with regard to persons who have been deprived of their liberty as authorised under the Mental Capacity Act 2005. There is no restriction on when or by whom deaths can be reported to a coroner. Indeed, the registrar of deaths has a duty to report deaths to the coroner where he or she considers that the coroner’s duty to investigate may apply.

The Government recognise that there is a need to improve the scrutiny of deaths that are not investigated by a coroner. The Coroners and Justice Act 2009 contains provisions to introduce medical examiners who will contact the deceased’s family and those involved in the deceased person’s care to identify any concerns as part of a reformed death certification process.

We consulted on our proposals earlier this year and aim to publish our response to the consultation in the new year. This will of course be particularly relevant to vulnerable people in hospitals and care homes, regardless of whether they are being deprived of their liberty. Medical examiners will not just be responsible for scrutinising individual deaths not investigated by the coroner but will have a role in analysing data on deaths across their area. They will identify patterns and contribute to lessons that will reduce avoidable deaths. They will also have a duty to report to coroners deaths for which a coroner’s investigation may be required.

The effect of Clause 155 will be that the death of anyone subject to a deprivation of liberty safeguards authorisation, or an appropriate Court of Protection order, will no longer trigger an automatic coroner’s investigation. We supported this change in the law in the light of views expressed by the then chief coroner, his honour Peter Thornton QC, in his 2015-16 annual report. He called for immediate action to remove deprivation of liberty safeguards cases from the definition of “in state detention”—a point that, just prior to his recent retirement, he reiterated to the Minister for Victims, Youth and Family Justice.

The issue here is not simply one of the resources needed to undertake these inquests. The then chief coroner had addressed this to some extent through his 2014 guidance, revised in 2016, which set out a streamlined process. But, as he has said, these inquests “serve no good purpose”. It cannot be right that more than 20% of inquests undertaken each year are unnecessary, with all that that implies in terms of added anguish for bereaved families.

I thank the noble Baroness for raising the profile of this important issue, but I hope that she will accept that the Government’s recently completed consultation on reforming the death certification process will, when its proposals are implemented, complement and support the work of our coroners who investigate suspicious deaths.

I think that the noble Baroness, Lady Hamwee, asked who we consulted in the consultation. The Ministry of Justice consulted the former and current chief coroner. Having said that, we consider that this removes any further need for further consultation on the coroner’s statutory duties, and I hope that the noble Baroness will therefore be content to withdraw her amendment.

[Baroness Hamwee]

I thank the Minister, but I cannot restrain myself from observing that her answer has been that there has been a consultation and that the Government will publish their response to it next year. I say that as nicely as I can, because clearly a lot of work has gone on with regard to this—and I am grateful to the noble Baroness, Lady Finlay of Llandaff, as well, for filling out the information that she gave pretty comprehensibly to the House on the last occasion. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I hope that my noble friend will understand that, given the further business to which the House has to attend tonight, I will confine myself to saying that we on these Benches enthusiastically support her amendments.

[Baroness Chisholm of Owlpen]

I thank the noble Baroness, Lady Brinton, for meeting with me, and for tabling these amendments again so that this House has a further opportunity to debate the important issue of victims’ rights.

Some of the amendments seek to place aspects of the Code of Practice for Victims of Crime on a statutory basis. This is a statutory code, provided for by the Domestic Violence, Crime and Victims Act 2004, and as such all criminal justice agencies are required to provide the services victims are entitled to under it. Many of the entitlements for victims included in the proposed amendments are already in the code. Some are for all victims of crime, while others are enhanced entitlements for the most vulnerable victims of crimes such as stalking and domestic and sexual abuse. Placing them on a statutory footing separately will not ensure compliance, nor guarantee that those entitlements are delivered effectively. The effect would merely be symbolic, and make amendment and updating of entitlements more difficult.

As I said before, we recognise the importance of training for professionals who work with victims. Under the police educational framework and national curriculum, police officers and staff receive training on the code throughout their careers. Officers and staff can receive training on the code at various stages of their careers. This training is supported by a new online package launched by the College of Policing. All Crown Prosecution Service staff who attend court have been given face-to-face training on the new Speaking to Witnesses at Court guidance and on how to interact with victims and witnesses at court without undermining the fairness of the trial. This is supported by a comprehensive package of e-learning, which barristers who appear for the CPS in court are expected to complete.

We also appreciate that more can be done in relation to certain categories of crime. That is why, for example, the College of Policing, as part of reviewing its guidance on stalking and harassment investigations, is looking at whether police officers fully understand the offences and are receiving appropriate training. It is also why Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate are carrying out a joint inspection to assess the effectiveness of police forces and the CPS in dealing with cases involving stalking and harassment, and to examine the service received by victims. The CPS is developing a training package for its prosecutors to improve the quality of charging and review decisions in stalking and harassment cases.

There has also been a concerted effort to improve the response of the police in domestic abuse cases. In its most recent national thematic inspection of the police response to domestic abuse, Her Majesty’s Inspectorate of Constabulary found improvements in police attitudes towards victims and front-line officers’ understanding of the importance of dealing with victims in a supportive way. Since 2014, every police force has published a domestic abuse improvement plan, new guidance has been published by the College of Policing, new training has been successfully piloted and for the first time, police are now collecting data against a national standard on all domestic abuse recorded crimes. A joint police and CPS witness care review is looking to identify clear performance measures which would include timeliness of communication of information to witnesses as set out in the code. In addition, Her Majesty’s Courts & Tribunals Service is undergoing an audit by the Government Internal Audit Agency on the effectiveness of arrangements in place for victims and witnesses, against requirements in the victims’ code and the witness charter. Results are expected in the first quarter of 2017.

In order to determine what is required to strengthen further the rights of victims of crime, we are looking at available information about compliance with the victims’ code, and considering how it might be improved and monitored. We are also looking carefully at the range of proposals that have been made by the Commissioner for Victims and Witnesses and others. We are focused on making sure we get this work right, and ensuring that any future reform proposals are evidence-based, and an effective and proportionate approach.

Finally, in relation to Amendment 188, which seeks to provide a direct route of complaint for victims to the Parliamentary Ombudsman, I should add that on 5 December the Cabinet Office published a draft public service ombudsman Bill. The Bill will improve access to the ombudsman’s services by allowing for all complaints to be made with or without the help of a representative and in a variety of formats to meet the digital age. When the Bill is brought before your Lordships’ House, it will provide a further opportunity for noble Lords to test whether the measures I have set out are delivering the improvements to the experience of victims in their interaction with the criminal justice system that we all want to see.

I hope that, having further debated these issues and received greater detail of the work that is being undertaken both by the Government and by the criminal justice agencies, the noble Baroness will be content to withdraw her amendment.

[Baroness Brinton]

I thank the Minister for her response, but sadly, many of the concerns I have raised were not particularly well articulated. There is no doubt that there is an entitlement to victims to have support. The fundamental problem is that there is no duty on the agencies to deliver it. The Minister said that police receive training when they first start their careers, and they can receive training later on. The problem is that, in practice, it does not happen consistently. The experience of victims, as outlined both tonight and at earlier stages of the Bill, demonstrates that it is still woefully inadequate in some parts of the country. The College of Policing clearly has an important role, but there are real concerns that there is a focus on the domestic abuse improvement plan without understanding that stalking and coercive control are key issues as well.

I accept the points the Minister has made about the draft public services ombudsman Bill, but there is more in Amendment 188 than is covered in that draft Bill. I believe that I have noble Lords’ support, and I would like to test the opinion of the House.

Policing and Crime Bill

Baroness Chisholm of Owlpen Excerpts

Report: 1st sitting: House of Lords
Wednesday 30th November 2016 Lords Chamber

[Baroness Chisholm of Owlpen (Con)]

My Lords, Amendment 1, moved by the noble Lord, Lord Paddick, seeks to limit the duty to collaborate so that police bodies would be required to collaborate with fire and rescue services only where they share coterminous boundaries. I see no reason why collaboration should be limited by geographical borders. The Government require there to be coterminous boundaries where a change of governance for fire is proposed, as the core approach of those provisions is to introduce greater democratic accountability by giving a directly elected individual responsibility for both services, with a clear mandate from the electorate in their area. However, collaboration between two bodies does not invoke such issues. Further, the duty, as currently drafted, would ensure that areas where the services are not coterminous, such as Devon and Cornwall, can still maximise the benefits outside a governance change if there is no appetite to adjust boundaries locally.

As the noble Lord, Lord Paddick, mentioned, existing examples of collaborative working between police forces show the benefits that closer working can provide, regardless of geographical proximity. For instance, Cheshire Police collaborates with Northamptonshire and Nottingham police forces on back-office functions, including payroll, accounting, purchasing and HR, via the Multi-Force Shared Service. West Midlands Police led the largest ever police and emergency service collaborative procurement exercise, which includes 26 territorial forces, two non-territorial forces and five fire and rescue services. Together, the services will buy 3,000 vehicles over the next two years, with forecasted savings of up to £7 million over the period of the contracts.

Government Amendments 2 and 3 respond to points raised in Committee by the noble Lord, Lord Rosser, the noble and learned Lord, Lord Hope of Craighead, and the noble Baroness, Lady Hamwee, in respect of collaboration agreements. Amendment 2 explicitly provides that no relevant emergency service will be required to enter into a collaboration agreement where it would have an adverse effect on public safety. This has been the Government’s policy intention since conception of the Bill. Indeed, as I set out in Committee, the Government believe that the impact on public safety will be assessed by an emergency service whenever considering the effect of a proposed collaboration on its efficiency or effectiveness. None the less, for the avoidance of any doubt, this amendment makes it explicit in the Bill that no relevant emergency service will be required to enter into a collaboration agreement that would negatively impact public safety.

Amendment 3 clarifies the process for varying a collaboration agreement. We agree that parties to an agreement should also be able to straightforwardly vary terms of an existing agreement, where all parties are in agreement. Parties will also still be able to replace an existing agreement with a new agreement, again with the consent of the parties concerned.

I hope that, having heard my explanation, the noble Lord will be content to support the government amendments in this group and withdraw Amendment 1.

[Lord Paddick]

In my opening remarks, I welcomed the government amendments and suggested that we would support them. The examples that the noble Baroness gave of collaboration between police forces were to do with requisition and back-office functions. The real issues arise where there is collaboration on operational issues—for example, the sharing of buildings, and particularly where the Government want to encourage police and crime commissioners to take over the running of fire and rescue authorities, as we will hear later this afternoon. That is where the coterminosity issue is most stark. Therefore, while I accept that for requisition and back-office functions the forces do not need to be geographically co-located, real problems can arise on the operational front in these circumstances, and if the PCC has to take over. However, I will consider carefully what the noble Baroness has said and, at this stage, beg leave to withdraw the amendment.

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[Baroness Chisholm of Owlpen]

My Lords, Clause 7 enables police and crime commissioners to request to be represented on fire and rescue authorities within their police areas where they do not take responsibility for the governance of the fire and rescue service. This is what we have described as the representation model. Where a fire and rescue authority accepts such a request, we have set out that PCCs will be treated as if they were a member of the authority for the purposes of bringing agenda items, receiving papers and so on, and have full voting rights to ensure that they can take part in the business of the fire and rescue authority in a meaningful and effective way.

The noble Lord’s amendments seek to remove these provisions, which would be a great shame, as we want the PCC’s representation to be meaningful and on an equal footing with existing members of the FRA. To deny PCCs the ability to vote would reduce their scope for influence and I fear that opportunities for fostering greater collaboration would be missed. As my noble friend Lady Williams explained in Committee, in response to a group of similar amendments, we want police and crime commissioners and fire and rescue authorities to consider the representation model as a viable option for promoting greater collaboration between the two services. These amendments would hinder that.

The amendments would also remove the necessity for a fire and rescue authority to publish its decision and reasoning in considering the PCC’s request for membership. I am concerned that to do so would remove transparency and accountability from the process. These provisions enable PCCs to seek representation where they wish to do so, while respecting local fire governance arrangements. The final decision on representation rests with the fire and rescue authority, although we fully expect that in the majority of instances the fire and rescue authority would accept the PCC’s request and, if it did not, its reasons should be made clear to both the PCC and the public. This ensures that the process is fully transparent and open to effective scrutiny.

The provisions in the Bill allow for the representation model to be considered as an opportunity to foster greater collaboration outside of pursuing other governance models. I hope I have been able to persuade the noble Lord of the merits of the approach taken in the Bill and that he will be content to withdraw his amendment.

[Lord Paddick]

I am grateful to the Minister. I am still struggling to understand why a police and crime commissioner, who is elected on the basis of a manifesto to do with policing, should have full voting rights on a fire and rescue authority. I am not sure that “It would be a great shame” is a particularly powerful argument against my proposal. The Minister said that the police and crime commissioner should be on an equal footing with other members of the fire and rescue authority but did not actually say why. Yes, the final decision rests with the fire and rescue authority but, given the fact that this is in legislation, it would be difficult, certainly following the Minister’s remarks, for fire and rescue authorities to resist a move by a police and crime commissioner to take those voting rights. Greater collaboration surely does not necessarily depend on the police and crime commissioner having a vote on the fire and rescue authority. None the less, I beg leave to withdraw the amendment.

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Moved by

[Baroness Chisholm of Owlpen]

43: After Clause 11, insert the following new Clause—
“Fire Safety inspections
(1) The Regulatory Reform (Fire Safety) Order 2005 (S.I. 2005/1541) is amended as follows.(2) In article 2 (interpretation), in the definition of “fire inspector”—(a) after “inspector”” insert “, in relation to Wales,”;(b) for “section 28” substitute “section 28(1)”.(3) In article 27 (powers of inspectors), after paragraph (4) insert—“(5) This article applies to a person authorised by the Secretary of State under article 25(1)(e) in relation to premises in England as it applies to an inspector; and article 32(2)(d) to (f), with the necessary modifications, applies accordingly.”(4) In article 28 (exercise on behalf of fire inspectors etc of their powers by officers of fire brigades)—(a) in paragraph (1)—(i) omit “, or any other person authorised by the Secretary of State under article 25(e),”;(ii) for “and (3)” substitute “to (4)”;(b) after paragraph (1) insert—“(1A) The powers conferred by article 27 on an authorised person (by virtue of paragraph (5) of that article) are also exercisable by an employee of a fire and rescue authority in England when authorised in writing by such an authorised person for the purpose of reporting to him or her on any matter falling within the authorised person’s functions under this Order; and articles 27(2) to (4) and 32(2)(d) to (f), with the necessary modifications, apply accordingly.”;(c) in paragraph (2), for “, or other person authorised by the Secretary of State,” substitute “or authorised person”;(d) after paragraph (2) insert—“(3) In this article, “authorised person” means a person authorised by the Secretary of State under article 25(1)(e) in relation to premises in England.””

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[Baroness Chisholm of Owlpen]

My Lords, Amendments 44, 45 and 105 are essentially technical amendments to ensure that the strengthened powers of an inspector of Her Majesty’s Inspectorate of Constabulary and the powers of an inspector of fire and rescue authorities in England, as provided for in the Bill, work as intended.

Both inspectors have powers to obtain information and to access premises of the relevant organisation which they are inspecting and of persons providing services for that organisation. The amendments ensure that any person providing services or carrying out any of the activities of either organisation by virtue of an enactment, including where there is no contractual agreement, come within the inspection framework. This would, for example, cover police or ambulance staff who are undertaking fire functions as part of a local agreement—an approach which is growing across many police forces and fire and rescue authorities. These amendments will ensure that both police and English fire and rescue inspectors have sufficient powers covering all individuals who are fulfilling an activity which needs to be inspected. The powers to access premises and require information are long-standing and widely used, with established safeguards that will apply to these amendments.

Amendment 43 concerns the enforcement of fire safety in Crown-owned or Crown-occupied premises for the purpose of ensuring compliance with the Regulatory Reform (Fire Safety) Order 2005. Presently, the 2005 order defines an enforcement authority with reference to inspectors under Section 28 of the Fire and Rescue Services Act 2004. In the light of the fire inspection provisions in the Bill, it is now desirable to break the link between the inspection of fire and rescue authorities by an English inspector appointed under the amended Section 28 of the 2004 Act and enforcement of fire safety in Crown-owned and Crown-occupied premises under the 2005 order.

We do not consider it appropriate for those charged with responsibility for inspecting the efficiency and effectiveness of fire and rescue authorities in England under Section 28 of the 2004 Act, as amended, to have any powers in relation to enforcing fire safety provisions in Crown-owned or Crown-occupied premises for the purpose of ensuring compliance with the 2005 order. The skill set is entirely different, with fire safety enforcement officers requiring a high level of technical competence in building construction and fire safety management.

However, to deliver this objective we need to amend the 2005 order to ensure that any persons authorised, under Article 25(1)(e) of the 2005 order, by the Secretary of State to enforce the provisions of the 2005 order in Crown-owned and Crown-occupied premises are able to access the powers of enforcement that are necessary to enable them to perform their function effectively.

Without this amendment, any persons subsequently authorised to enforce the provisions in Crown-owned or Crown-occupied premises who were not also appointed as English fire inspectors or assistant inspectors would not, in law, be able to perform their function. I beg to move.

Amendment 43 agreed.

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Moved by

[Baroness Chisholm of Owlpen]

49: Clause 27, page 41, leave out lines 9 to 19

[Baroness Chisholm of Owlpen]

My Lords, the Government are committed to ensuring that those working for the police have the confidence to come forward to report concerns of malpractice and misconduct within the service. Clause 27 inserts new Part 2B and new Schedule 3A into the Police Reform Act 2002. This will provide the Independent Police Complaints Commission with a new power to carry out independent whistleblowing investigations. It gives police officers and staff a new route to raise their concerns directly with the IPCC. As a result, it will give police officers and staff a greater level of assurance around discretion and objectivity by strengthening the protections for whistleblowers, including anonymity.

Amendments 49 and 50 respond to points raised in Committee by the noble Lords, Lord Paddick and Lord Kennedy. The amendments will provide greater clarity about when a whistleblowing investigation can be considered by the IPCC. The amendments modify the definition of a whistleblower in two ways. The first modification is to enable whistleblowers to raise concerns about matters which occurred before they joined the police. The second modification will remove the need for the IPCC to consider whether to start a new whistleblowing investigation where it is already conducting an investigation under Part 2 of the Police Reform Act 2002, or where there is an ongoing whistleblowing investigation.

There will also be no requirement for the IPCC to consider whether to open a new investigation when the concern raised is already being dealt with as a super-complaint. These modifications will provide further clarity on the definition of a whistleblower, ensuring that the new Part 2B provisions will not interfere with the progress of these existing investigations. This will also support the IPCC to effectively implement its duties under the new provisions.

Amendments 51, 55, 63, 64 and 69 are technical amendments to ensure that, as with concerns which involve conduct matters, where the IPCC identifies a concern as relating to a “death or serious injury” matter as defined in Part 2 of the 2002 Act, the matter must be handled under that part. In such circumstances, the whistleblower’s identity will continue to be protected by modifications to Schedule 3 to the 2002 Act specified in regulations. I beg to move.

[Lord Paddick]

My Lords, I am very grateful to the Minister and to the Government for listening to the concerns we raised around whistleblowing in Committee. We certainly support the government amendments in this group.

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Moved by

[Baroness Chisholm of Owlpen]

50: Clause 27, page 41, line 26, at end insert—
“(3A) For the purposes of this Part, a person is a “whistle-blower” if—(a) the person is, or was at any time, under the direction and control of a chief officer of police,(b) the person raises a concern that is about a police force or a person serving with the police,(c) the matter to which the concern relates is not—(i) about the conditions of service of persons serving with the police, or(ii) a matter that is, or could be, the subject of a complaint by the person under Part 2, and (d) at the time the Commission first becomes aware of the concern, the matter to which it relates is not—(i) under investigation under the direction of the Commission in accordance with paragraph 18 of Schedule 3,(ii) under investigation by the Commission in accordance with paragraph 19 of that Schedule,(iii) being dealt with as a complaint under section 29A under regulations under section 29C (regulations about super-complaints), or(iv) under investigation under this Part.”

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Moved by

[Baroness Chisholm of Owlpen]

54: Schedule 6, page 278, line 29, leave out “15(5)” and insert “15(5B)”

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Moved by

[Baroness Chisholm of Owlpen]

56: Clause 32, page 54, line 24, after “the” insert “Independent”

[Baroness Chisholm of Owlpen]

My Lords, I hope that this, too, will be good news for your Lordships. This Government’s policing reforms have strengthened the role of the Independent Police Complaints Commission to ensure that it can fulfil its crucial function as a strong police watchdog. The Bill will further enhance the IPCC’s powers and independence. It is important that the organisation can carry out its enhanced role efficiently and effectively and the Bill therefore also provides for the reform of the IPCC’s corporate structure and for it to be renamed the Office for Police Conduct.

In Committee the noble Lord, Lord Rosser, tabled an amendment to include “Independent” in the new name. A number of noble Lords spoke in support of that amendment, highlighting the value of the word in securing public confidence that the organisation is not part of the police. My noble friend Lady Williams of Trafford agreed to reflect on the points that noble Lords made so well in the debate.

The Government remain of the view that the reformed IPCC needs to command public trust, and demonstrate its impartiality and independence, through the quality of its work. The IPCC is independent, and the reformed organisation will continue to be independent. However, the Government also recognise the argument that although the legislation provides for the organisation’s independence from the police, it is important to signal this in its title as well. These amendments therefore provide for “Independent” to be included in the reformed IPCC’s new name, with the effect that it will be called the Independent Office for Police Conduct. I beg to move.

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Moved by

[Baroness Chisholm of Owlpen]

57: Clause 32, page 54, line 28, after “The” insert “Independent”

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[Baroness Jolly (LD)]

My Lords, the purpose of this amendment is to enable service men and women to make complaints about their service police to the IPCC rather than to the service police—the Royal Military Police, the Royal Air Force Police or the Royal Navy Police. I submitted this amendment after a really interesting and valuable meeting that I had with the Minister and her officials, which helped my thinking and allows me to ask for clarification about the service police and the IPCC. I am grateful to her for her time.

The Minister and I discussed the issues of the competence, culture and trust of or in the service police and the capacity of the IPCC to take over some of its functions. I remind noble Lords that Her Majesty’s Inspectorate of Constabulary—HMIC—recommended that oversight of the Royal Military Police, the Royal Air Force Police and the Royal Navy Police should be brought within the competence of the IPCC. I understand that, at the moment, the IPCC is undergoing some change and is not able or willing to look at meeting the amendment’s desired outcome in the immediate future. I also understand that the service police are aware of their shortcomings and are working to address them.

Can the Minister give some indication of the Government’s current thinking about the future, and about which milestones might indicate progress? If there are any recent pronouncements from the MoD on this issue, that would also be helpful. Our service men and women deserve a process for complaints against their service police that is modern, run professionally, fit for purpose and future-proofed. I hope that the Minister can help, and I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, I would like to reassure the noble Baroness, Lady Jolly, that the Government and the service police are fully supportive of the need for independent oversight of the service police. There is already statutory independent oversight of the complaints made against the service police, where those complaints are made through the service complaints process. That process is overseen by the independent Service Complaints Ombudsman and is available to all serving personnel. Veterans and other civilians are not able to use that process and rely solely on the service police complaints procedures, which do not currently have independent oversight. However, I should mention that, since the recommendation in Her Majesty’s Inspectorate of Constabulary’s 2014 report, the service police forces have adopted a tri-service investigations protocol, which supplements their existing complaints procedure and provides for another force to investigate certain complaints where there could be a conflict of interest or allegations of criminal activity.

There is clearly further work to do on a mechanism for introducing independent oversight into complaints made against the service police. There are a number of options for doing this, including oversight by an existing body or setting up a separate new body to provide it, but a number of logistical and jurisdictional issues need to be addressed. For example, incidents requiring investigation might arise in any part of the UK or indeed anywhere in the world, including dangerous operational theatres, and clearly we would want our oversight arrangements to cater for those occasions.

The Government are therefore considering interim arrangements that will introduce independent oversight of complaints against the service police from veterans and non-service personnel, this being the gap which currently exists. We expect to be able to announce further information about this shortly. The Government remain committed to implementing a single mechanism that will provide for the independent oversight of all complaints against the service police. This aspiration is shared by each of the service police provost marshals, and we intend to update the House on progress in the first half of next year.

On a broader note, I should mention that each of the service police forces has done much in recent years to forge a culture within its organisation that aims to promote faith in its integrity and professionalism within the Armed Forces, military community and beyond. They have each implemented codes of conduct that highlight the expectations placed upon service police personnel both on and off duty. These are akin to those produced by the College of Policing and support the single service’s values and standards and leadership codes, which apply to all service personnel. In addition, all members of the service police are now required to swear an oath which declares that they will always act with fairness, integrity, diligence and impartiality. The Government are determined to ensure that, in both the short term and the long term, there can be independent scrutiny of any instances where those values are called into question. On this basis, I ask the noble Baroness to withdraw her amendment.

[Baroness Jolly]

My Lords, I thank the Minister for the clarification and for the meeting. I look forward to recommendations coming out very soon, as she said. In the meantime, I am happy to beg leave to withdraw the amendment.

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[Lord Rosser]

My Lords, I do not wish to repeat all that has been said, but I would like to raise one or two points. The first refers to the statistics on the use of Section 136 of the Mental Health Act in 2015 and 2016 to which the noble Baroness, Lady Walmsley, has already referred. They show some surprising discrepancies between police force areas on Section 136 cases. For example, Hertfordshire and Merseyside are the two police force areas in which there has been zero use of police cells under Section 136. However, in Lincolnshire, police cells were used under the Section 136 powers on 173 occasions during 2015-16, in the context of a total usage under Section 136 on just 368 occasions. That is a staggeringly high percentage. Equally, one could go through the whole list and point to considerable discrepancies. Surprisingly, although one might have thought that the figure for the Metropolitan Police would be pretty high, the number of occasions in 2015-16 on which people were placed in police cells under the powers in Section 136 was apparently 17, in the context of a total figure of 3,693.

I cannot understand why we have these discrepancies, and I would appreciate it if the Minister commented on that. Is it really about suitable places being available in these areas, or a lack of co-ordination or willpower, or a lack of priority being given to avoiding the need to use police cells? Some response from the Government on that point would be extremely helpful, and extremely interesting.

I want to refer to the letter of 25 November 2016 that the noble Baroness, Lady Chisholm of Owlpen, sent to the noble Baroness, Lady Walmsley, to which the latter has already referred. It would be helpful—to me, at least—to have some clarification of what parts of the letter mean. It states:

“It is … our intention that the regulations make clear that certain situations, in and of themselves, do not justify use of a police station, for example, because there is no health based place of safety available at that time. Our expectation, which will be reinforced in the guidance that will support the regulations, is that there should be local plans in place to deal with this and other contingencies”.

What does the reference to,

“local plans in place to deal with this and other contingencies”,

mean? Does that mean that places have to be provided, or something else? The letter continues:

“A police station will only be used as a place of safety if it is considered to be the best and safest way to manage a particular individual in the interests of all concerned”.

But what happens if no health-based place of safety is available at that time? Does the sentence I quoted mean that in that situation, if no such place of safety is available, a police cell can be used? Other references in the letter suggest that that would not be the case, and that, in effect, a police cell could be used only when the individual was considered to be a danger to themselves or to others. Again, it would be very helpful to have some clarification.

I may not have heard the noble Baroness, Lady Walmsley, properly—I am afraid I am all too good at that—but I thought, and I may be doing her a disservice, that she said that the Government had indicated that they intend to reduce to zero the use of police cells. If so, may I have confirmation of that, because I do not think the letter of 25 November 2016 says that? Of course, the statement:

“A police station will only be used as a place of safety if it is considered to be the best and safest way to manage a particular individual in the interests of all concerned”,

still leaves open the possibility of using a police cell, and would not be consistent with the Government’s intention, if it is their intention, in the long term—one hopes in rather less than the long term—to reduce to zero the use of police cells.

I would like to raise two or three other points related to treating people in a situation of mental health crisis. Clause 80 would reduce the permitted period of detention in any place of safety—not just police cells—from 72 hours to 24 hours. Of course, one could argue that 24 hours is still quite a lengthy period for individuals to be detained prior to an assessment of their mental health, wherever they are detained. The proposals do provide for a further 12-hour extension of that detention period. As has already been pointed out, individuals with urgent mental health needs have just as much right to acute and emergency health care as anyone else. If any other forms of emergency health care were provided within a window of only 24 to 36 hours, it would probably provoke some highly adverse comment. Did the Government consider bringing the time limit down further, to 12 hours, say, with the possibility of extending detention by up to a further 12 hours on the authority of, for example, the registered medical practitioner responsible for the person in question’s examination under the Mental Health Act?

I want also to refer to the position—or lack of it—of independent mental health advocates. As I understand it, subject to other powers in the Mental Health Act, they are available to provide independent advocacy and advice to individuals such as those liable to psychiatric detention, or those who have received community treatment orders. Among other important functions, independent mental health advocates help individuals to obtain information about their detention or treatment, and support them in understanding what is happening to them. But as I understand it, individuals detained under Sections 135 and 136 of the Mental Health Act do not have a right to an independent mental health advocate. Surely, detention in any place of safety is a feature of the mental health regime, and one in which independent advocacy, advice and assistance are desirable, if not required. Why is it that individuals convicted of no crime but detained for their own safety can have no access to the independent advocacy and assistance to which they would be entitled during other mental health interventions but not under Sections 135 and 136? A related point is that the PACE codes of practice lay down a requirement to have access to an appropriate adult, but on too many occasions, this does not happen as the code of practice indicates it should.

Finally, for the purposes of the police and criminal evidence arrangements, a police intervention under Sections 135 and 136 is treated as an arrest, and any police involvement in taking a person to a place of safety generates information held by police as to that person’s mental health history, including the recording of a police intervention by way of Sections 135 or 136. The Disclosure and Barring Service provides a system whereby an individual’s criminal record may be checked and, where relevant, disclosed to prospective employers. Ordinary DBS checks result in cautions and convictions being revealed, where permitted, but under enhanced DBS checks, other information held by the police as to their involvement with that individual may be disclosed as well, where the officer responsible reasonably believes it to be relevant and that it ought to be disclosed. Police will hold information as to any arrest they conduct and any involvement they have in taking a person to a place of safety under Section 135 or Section 136. The mere fact of police intervention in response to a person’s mental health crisis is therefore liable to be disclosed. It could therefore have quite significant adverse consequences when it comes to seeking employment.

I understand that since August last year new guidelines have been enforced, requiring constables to disclose as part of such checks only records they reasonably believe to be relevant. There is guidance given relating to Section 135 that indicates that the fact of detention under Sections 135(1) and 136 of the Mental Health Act is unlikely in itself to be sufficient to justify disclosure. Sections 135 and 136 provide the police with powers to remove a person to a place of safety when the person is believed to be suffering from a mental disorder and in need of care or control. Such a detention under the Mental Health Act does not constitute a criminal investigation and should therefore be treated with great caution when considering relevance for disclosure. But, of course, police officers are not mental health professionals. There is nothing to require them to seek the advice of such professionals before making a decision as to the relevance of a person’s mental health.

There is surely a real danger that the police will continue to disclose mental health records. Where a person is processed through the criminal justice system, information relevant to criminal matters may be disclosed as part of an enhanced EBS check. However, the disclosure of an individual’s medical history is an entirely different matter. Will the Government impose a ban on the disclosure of Sections 135 and 136 detentions under criminal records checks? I hope the response to the points I have raised, if not available tonight, might be available subsequently.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful to the noble Baroness, Lady Walmsley, for giving your Lordships’ House a further opportunity to debate the continued use of police stations as places of safety for adults. I think we all agree on the importance of taking someone experiencing a mental health crisis to a place of safety that will best meet their particular needs. We can also agree that, almost always, that should not be a police station, irrespective of the person’s age. But where we have not previously quite agreed is on removing outright the option of using a police station for an adult in those very rare cases where it is the judgment of the police officer on the scene that a police station is the safest place—at least initially—not just for the patient but for the public, health professionals or anyone else at risk from the extreme behaviour of the individual.

Let me make it plain that while the Government’s position is that it would be wrong and potentially very dangerous to ban outright the use of police stations as places of safety for adults, we have no intention of leaving police officers without support in making the judgment that a particular situation is of such severity that this would be the correct response. The regulation-making powers in Clause 79 will be used to set out factors relevant to the decision on whether circumstances merit the use of a police station. We envisage that these will cover a range of issues, such as how dangerous an individual’s behaviour is and how serious a risk of harm to themselves or others they represent. We will also look to include provisions to give the officer the opportunity to consult with mental health professionals if it is safe and practicable to do so.

Equally importantly, if the decision is made to use a police station, we must make sure that the individual receives all the appropriate healthcare and treatment they need while they are there. This, too, will be covered in the planned regulations. The regulations will further provide for a regular review of the individual’s condition so that they can be moved to a more appropriate place of safety if the circumstances change—for example, if their behaviour has moderated and the move is in their best interest and can be achieved without delaying the mental health assessment.

I expect that, once these provisions come into force, we will see a further substantial reduction in the use of police stations as a place of safety for adults. But it would be wrong, in our view, to assume that we can reach a point over the next few years when we can say with absolute certainty that there will never be circumstances where the use of a police station as a place of safety for an adult is an appropriate option because their extreme behaviour cannot safely be managed in an alternative place of safety. That being the case, we do not believe that the proposed new clause is an appropriate way forward. However, I want to reach the position whereby police stations are used as a place of safety only in specific, “exceptional” circumstances —and, when they are used, the person taken there must be given the right medical care.

Lots of points were raised during the debate. The noble Lord, Lord Rosser, asked why there were discrepancies in the use of police cells across police forces. There is a range of reasons why this happens. It may include different policies on accepting violent behaviour, but it is also about the fact that, as the noble Lord pointed out, in London, for instance, they are not used as widely as they are in Lincolnshire, which has seen a high rise in the use of police cells. Often that is because Lincolnshire is more rural and there are not so many places of safety available, whereas there are more in London. So there are several reasons why that could be the case.

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[Baroness Chisholm of Owlpen]

I was pointing that out as just one of the reasons why it might be—but we have to remember that, as we know, mental health is going through a huge change at the moment. As I said in a debate on Monday, I am afraid that we are going from a very low base. We have to be aware that it will take time for these places of safety to be there to ensure that we have an increased number of beds or places of safety for these people to be taken. That is part of the reason for the discrepancy.

To go back to further points raised on mental health, the noble Lord, Lord Rosser, raised an issue related to the respective changes to police powers under Sections 135 and 136 of the Mental Health Act. The noble Lord suggested that the maximum detention period should be reduced further to 12 hours. We are confident that the Bill reduces the maximum detention period by the appropriate amount—from 72 hours to 24 hours. The Government have seen evidence that the average assessment under Section 136 is conducted in under 11 hours. Furthermore, we fully support the target set by the Royal College of Psychiatrists for assessments to commence within three hours. However, there are some cases when it is not possible, due to the condition of the person detained, to conduct a meaningful assessment within 12 hours: for example, if they are intoxicated through alcohol or drugs.

The noble Lord also mentioned duties on police to consult with mental health professionals, with detainees having a right to an independent mental health advocate. The second issue concerned access to independent advice. Clause 78 requires police officers to seek advice from certain specific healthcare professionals, if practical, before making a decision to exercise their powers under Section 136. This is about supporting police officers to make the best possible decisions when they encounter a person who may be experiencing a mental crisis. This provision builds on existing good practice of police forces and local NHS services working together collaboratively, including through street triage schemes. The “if practical to do so” condition will avoid tying the hands of an officer if, in their judgment, they need to use the powers quickly to secure an individual’s safety.

On detainees’ access to advice, for example from a mental health advocate or an appropriate adult, the guidance supporting the implementation of these provisions will set out the expected support to be provided to any person detained at a place of safety under Section 135 or Section 136. Such support can, in our view, most appropriately be provided by health staff already present, rather than another person in a bespoke role, which would introduce delays and jeopardise professionals’ ability to conduct the assessment within 24 hours.

The noble Lord asked whether a person’s detention is disclosable if they subsequently apply for a disclosure and barring service check. In 2015 the Home Office published revised statutory guidance on enhanced DBS checks in relation to Section 135 and Section 136 detentions. The guidance now emphasises that the use of these powers in and of itself is unlikely to be sufficient to justify disclosure. The police are now directed to specifically factor in the behaviour of the detained person at the time, and how long they were detained. The Government’s position is that we cannot wholly rule out the possibility that there will continue to be circumstances in the future when a person’s behaviour is so extreme that it can safely be managed, at least initially, only in a police station. We are not legislating for some future point when that position will cease to be the case, which is what the amendment suggests.

I hope that, with all the things I have set out, and given our clear shared objective of doing what is in the best interests of all concerned, including their safety, I hope that the noble Baroness will be content to withdraw her amendment.

[Baroness Walmsley]

My Lords, I thank those who supported my amendment. I was fascinated by the treatise of the noble Lord, Lord Rosser, on other aspects of Sections 135 and Section 136. He is, of course, absolutely right that there is no correlation at all between the use of police cells and the rurality or urbanisation of the area concerned: absolutely none. I have always known that Merseyside is a very special place—because that is where I come from—but apparently in Merseyside there are no “exceptional circumstances”, whereas there are in other places. I cannot understand the Government’s determination to insist that there will be exceptional circumstances in other places if there are none in Hertfordshire and Merseyside.

It is quite clear that the Government are not going to move on this. However, I have to say that I welcome, of course, what the noble Baroness said about regulations. We will have to keep a very careful eye on how these work and whether they achieve our joint objective of bringing the numbers down as low as possible. I very much hope that that is exactly what will happen over the next few years. The hour being what it is, I beg leave to withdraw the amendment.