Data Protection Bill [HL]

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Report: 1st sitting: House of Lords
Monday 11th December 2017 Lords Chamber

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

My Lords, I thank the noble Baroness, Lady Chisholm of Owlpen, for her explanation of the government amendments in this group, which are largely in response to issues raised in Committee. I do not intend to speak for long on this group, because the amendments are largely to be welcomed. I want to pay particular tribute to my noble friend Lady Royall of Blaisdon, who raised the concern of the university sector during Committee that, under the Bill, universities could find themselves in difficulty over fundraising activities with alumni. We were pleased to see today that the Government have listened and addressed that. My noble friend cannot be with us today because of the weather making it difficult for her to travel to London. Generally, the higher education sector and others are grateful for what is proposed, although a couple of noble Lords have raised particular concerns, so it would be useful if the Minister could address those in her response. There may be one area that has not quite been resolved.

There are a couple of issues to mention. We are happy to support the amendment on police sharing of information for law enforcement purposes, as I am the amendment in respect of the Prisoner Ombudsman for Northern Ireland and the technical amendments on tribunals and courts to ensure consistency of language.

I shall not go on any further, because I am conscious that we have two Statements today and one will take at least an hour and the other 40 minutes, and the dinner break business for an hour, which will eat in to our time for Report today. I shall leave it here and say well done to the Government: thank you very much for that. It is better that we spend our day looking at issues that we have not quite resolved.

[Baroness Chisholm of Owlpen]

My Lords, I thank all noble Lords for the points they made. In answer to the noble Lord, Lord Patel, as my noble friend Lord Ashton explained in previous debates, Clause 7 was never intended to provide an exhaustive list of public interest tasks but, rather, to ensure continuity with respect to those processing activities that cover paragraph 5 of Schedule 2 to the 1968 Act. However, I am happy to reiterate that medical research—and other types of research carried out by universities for the benefit of society—will almost always be seen as a public interest task. I appreciate the sector’s desire to have greater guidance from the Information Commissioner on the issue, and I shall certainly pass that on, but the noble Lord will appreciate that it is not for me to dictate the Information Commissioner’s precise programme of work from the Dispatch Box.

I thank the noble Lords, Lord Smith and Lord Macdonald, for their kind words. I think we have put universities on a safe footing in this regard. I reiterate my thanks to them for coming to see us and helping us with that amendment.

The noble Lord, Lord Clement-Jones, asked: is alumni fundraising always in the public interest, and what about medical research?

Data Protection Bill [HL]

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Report stage (Hansard - continued): House of Lords
Monday 11th December 2017 Lords Chamber

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

My Lords, this group of overwhelmingly government amendments seeks to address issues raised by the Delegated Powers and Regulatory Reform Committee in its sixth report, published on 24 October this year, the only addition being Amendments 10 and 69 in the names of the noble Lords, Lord Clement-Jones and Lord Paddick. As we have heard, the Delegated Powers and Regulatory Reform Committee is widely respected in the House and I am pleased that the government amendments address the concerns raised by the committee. But as we have heard from the noble Baroness, Lady Chisholm of Owlpen, those concerns have not been accepted in full, and she has given the reasons for that.

I was particularly pleased to see government Amendments 9, 67 and 68, among others, which would limit the powers to amend the processing conditions and exemptions found in various schedules to the Bill. I am equally pleased to see the Government act in respect of the powers to make regulations. This will be done using the affirmative rather the negative procedure, starting with government Amendment 71. It gives Parliament the right level of scrutiny and the ability to reject or express regret about a particular decision, and allows for a proper level of scrutiny, a debate having to take place in both Houses.

In respect of Clauses 9 and 15, Amendments 10 and 69 seek to change the scrutiny procedure from the affirmative, as presently in the Bill, to the super-affirmative. I am not convinced that this is necessary as we have the tools at our disposal to scrutinise the proposals using the affirmative procedure. Starting with government Amendment 130, we have a series of amendments relating to the enforcement powers of the ICO, and again these are to be welcomed.

As I say, in general I welcome the government amendments and the explanation given by the noble Baroness.

[Baroness Chisholm of Owlpen]

I thank the noble Lord for those kind words. The noble Lord, Lord Clement-Jones, asked who would be consulted. While it is clearly impossible to be specific, the Secretary of State might consider it appropriate to consult, for example, representatives of data subjects or trade bodies, depending on the circumstances and regulations in question. I hope that that answers his question.

On why it is permissible to admit provisions added by regulations, we believe it is qualitatively different from admitting those added during the extensive parliamentary debate and scrutiny afforded to primary legislation. As I said, many other powers are not new. The 1998 Act already provides a power to add to conditions for sensitive processing. We feel it is prudent to retain the ability to amend Schedules 2 to 4 if necessary. As I said, this is a fast-moving area. We want to make sure that the Bill provides a framework for the constant evolution and developments in how we use and apply data, but it must be supportive rather than stifle innovation and growth.

Data Protection Bill [HL]

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Committee: 5th sitting (Hansard): House of Lords
Monday 20th November 2017 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, the amendments in this group, in my name and that of my noble friend Lord Stevenson of Balmacara, take up a number of issues raised by the Delegated Powers and Regulatory Reform Committee in its report on the Data Protection Act. Our Amendment 163ZC adds a requirement on the commissioner to specify in guidance what constitutes “other failures” under subsection (8). Amendment 164C adds a requirement on the commissioner to specify, within three months of the Act coming into force, what constitutes “other failures”. I think it is important that we are clear, at least in guidance, what these “other failures” are.

Amendment 168A concerns the regulations for non-compliance with the charges regulations, deleting all the subsections and inserting new ones. The new subsections make provision for proper consultation with the commissioner and other persons that the Secretary of State considers appropriate, and state that any regulations made must be subject to the affirmative resolution procedure. The amendment sets a maximum penalty and the amount of penalty for different types of failure.

Amendment 168B seeks to replace “produce and publish” with “prepare”, which we think is better in this context. Amendment 168C seeks to put in the Bill a procedure that was recommended in the report of the Delegated Powers and Regulatory Reform Committee, which suggested that the guidance should be subject to some form of parliamentary scrutiny. Amendment 168D seeks to set out how the guidance can be amended or altered with the new procedures outlined in Amendment 168C.

The final four amendments in the group—Amendments 182D to 182G—take up the issue of the power in the Bill to make Henry VIII changes to reflect changes to the data protection convention. We are seeking to delete “or appropriate” from Clause 170(1) to make it only,

“as the Secretary of State considers necessary”.

We think that presently the subsection is worded too broadly. We also seek to delete “includes” and insert “is limited to” in respect of the powers. Then we make it clear that the power is in respect only of Part 4. Finally, as highlighted by the committee, we time-limit the period for changes to three years. I beg to move.

[Baroness Chisholm of Owlpen]

My Lords, the amendments tabled by the noble Lords, Lord Stevenson and Lord Kennedy, reflect the recommendations made by the Delegated Powers and Regulatory Reform Committee in its report on the Bill. As noble Lords will be aware, the Government hold the committee in high regard and, as always, we are grateful for its consideration of the delegated powers in the Bill. As set out in our previous discussions on delegated powers, the Government are considering the committee’s recommendations with a view to bringing forward amendments on Report. For that reason, I will keep my remarks brief but noble Lords should be reassured that I have listened to and will reflect on our discussions today.

As noble Lords know only too well, delegated powers are inserted into legislation to allow a degree of adaptability in law. As we have touched on in our earlier discussions of delegated powers, and as I am sure noble Lords will agree, no other sector or industry is evolving as quickly as the digital and data economy. The pace at which new forms of data processing are being developed, and the sophistication and complexity with which new data systems are being designed, will render any current governance obsolete in a very short time. It is for this reason that we consider it necessary to be able to adapt and update the Information Commissioner’s enforcement powers.

However, the Government recognise the need to provide certainty through clauses on the statute book. I therefore thank the noble Lord for his suggestions in Amendments 163ZC and 164C for how regulation-making powers relating to the commissioner’s enforcement and penalty notices in Clauses 142 and 148 could be more appropriately defined; this is certainly something that I will reflect upon. In Amendments 168A to 168D, I recognise other recommendations of the DPRRC relating to the Information Commissioner’s guidance and penalties.

As I have already set out, it is important that the Information Commissioner’s powers are subject to a degree of flexibility. She must be able not only to identify new areas of concern but to tackle them with proportionate but effective enforcement measures. In an ideal world, we would have a crystal ball that could tell us all but the reality is that we do not. We do not have one now and the Information Commissioner will not have one three months after Royal Assent. We must preserve the ability of the regulatory toolkit to constantly adapt to changing circumstances and keep data subjects’ rights protected.

I note the proposals in Amendments 182D to 182G, which would limit the scope of the regulation-making power in Clause 170. Clause 170 is intended to allow the Government to update the Bill to reflect amendments to convention 108.

As with previous amendments based on the Delegated Powers and Regulatory Reform Committee’s report, it is important that we consider these amendments alongside the broader recommendations given by that committee. The Government are keen to give proper consideration to these recommendations and, although this is ongoing, I am confident that we will have concluded our position on these amendments before we come to the next stage of the Bill. I am grateful for the informative discussion we have had today, which forms the final part of our reflection upon the committee’s report. I hope that the noble Lord will feel able to withdraw his amendment and I look forward to returning to these issues on Report.

[Lord Kennedy of Southwark]

My Lords, the Delegated Powers and Regulatory Reform Committee is one which the Opposition hold in high regard, as the Government do. It does an important job for the Government by going through legislation and looking at whether the powers the Government seek to take are applied appropriately. I thank the noble Baroness, Lady Chisholm, for that very much and I am pleased that she confirmed that the Government were looking at the matters in the report carefully. When they come back on Report, I hope that they will address the issues I have raised and others in that report. On that basis, I am happy at this stage to withdraw my amendment.

Data Protection Bill [HL]

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

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.

Data Protection Bill [HL]

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Monday 30th October 2017 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, I have no interests whatever to declare in this debate.

Amendment 10, moved by my noble friend Lady Royall of Blaisdon and signed up to by the noble Lords, Lord Pannick and Lord Macdonald of River Glaven, raises the important issue of legitimate fundraising and alumni relations undertaken by schools, colleges and universities being at risk due to the changes being brought in by GDPR. My noble friend referred to various conditions and mentioned the lawfulness condition, specifically on the issue of consent.

As we have heard, GDPR sets a very high bar in requiring a positive opt in, and it is likely that existing consents will not reach the required standard. So educational institutions would have to take on the enormous task of rebuilding their databases from scratch to meet the condition, as my noble friend referred to.

The public interest condition does not really work, for various reasons. The legitimate-interest condition may provide a route for the justification of data processing for fundraising purposes but, as we have heard in this debate, there are issues here as well. To make that a realistic solution to this unintended consequence of the new regulations—I think we all agree that it is unintended—my noble friend is seeking to put in the Bill a subsection in Clause 6 that, for the purposes of GDPR, would make it clear that schools, colleges and universities are not public bodies.

I note that Clause 6(2) provides the Secretary of State with the power to designate those public bodies that are not regarded as public bodies for GDPR. I am not sure what the general attitude of the Minister is, although he seems to have indicated that he is broadly sympathetic, but if he is going to rely on subsection (2) then he is going to have to do a bit more. As I mentioned previously, when Governments tell us it will all be sorted out in regulations, that is often not the solution and things can take a very long time. I mention the Housing and Planning Act again.

This is not something that educational institutions can wait months or years for; it would cost them considerably in terms of their fundraising plans. I hope the Minister can deliver some positive news to my noble friend, who has raised an important issue. It is fair to say that if she pressed this or a similar amendment to a vote on Report, she would be likely to win the day because it is an issue that many noble Lords are very concerned about.

[Baroness Chisholm of Owlpen]

My Lords, I thank noble Lords for taking part in this debate. I always feel humbled when I realise how many chancellors, presidents and fellows of universities we have in this House. I think that is why our debates and discussions are always of such high quality, because that is what noble Lords bring to this House. I congratulate the noble Baroness, Lady Royall, on her appointment. I visited Somerville College a lot because my daughter went there; she had an extremely enjoyable time and loved her three years there.

Universities are classified as public authorities under the Freedom of Information Act, and the Bill extends that classification to data protection. We recognise that universities, as complex organisations with many varying functions and interests, also carry out other functions that may not count as “public tasks” under data protection law. The conundrum raised by the noble Baroness has also been raised with the Government by the universities. I thank them for their time and help in working with both the Government and the Information Commissioner to resolve the problem.

I fully appreciate that the intention of the amendment is to protect our schools, colleges and universities by allowing them to continue pursuing their interests outside of their public tasks. I reassure noble Lords that neither the Bill nor the GDPR puts that at risk. The Information Commissioner’s Office has confirmed that it will issue detailed guidance on this matter, including the processing of personal data for the purpose of maintaining alumni relations, in order to make this clear. Representatives of the higher education sector have also indicated to the Information Commissioner’s Office that they may wish to develop further sector-level guidance, and the Information Commissioner’s Office will assist with that.

However, we are very sympathetic to everything that noble Lords have said today. It is important that we should meet again, and I am happy to agree to a meeting between myself, my noble friend Lord Ashton and all interested Peers so that we can talk about this further, in order that when we come back on Report we will have something that perhaps everyone will wish to hear. I hope my clarification on this issue is sufficient for now, and that the noble Baroness will agree to withdraw her amendment.

[Lord Kennedy of Southwark]

The Minister mentioned guidance and said that these matters would be solved then. Can she give us an assurance that we will have the guidance before the Bill becomes law?

[Baroness Chisholm of Owlpen]

The guidance from the Information Commissioner’s Office is ongoing. I had better go and find out whether we will have it by the time this Bill becomes law, because I do not want to say something at the Dispatch Box that turns out to be wrong. I will have to get back to the noble Lord on that point.

Policing and Crime Bill

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

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.

Policing and Crime Bill

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

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

[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.

Terrorism Prevention and Investigation Measures Act 2011 (Continuation) Order 2016

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Thursday 24th November 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I thank the noble Baroness, Lady Chisholm of Owlpen, for presenting the order to the House this afternoon. It has the support of the Opposition. As the noble Baroness says, the first duty of government is to keep our people and our country safe, and the Government have our full support in that important work.

The order before us will renew the Secretary of State’s power to issue TPIM notices for a further five years, so long as the independent reviewer, the Intelligence Services Commissioner and the director-general of the Security Service have been consulted. I understand that they have been and that they have all consented. I note the point that the noble Baroness, Lady Hamwee, made about going for the maximum period of time. At present, I believe that that is the right decision. I also note that the Secondary Legislation Scrutiny Committee in considering the order did not raise that as an objection at all.

As noble Lords have heard, the notice has rarely been used, but it is an important measure of last resort to protect our security when it is not possible to prosecute or, in the case of foreign nationals, deport individuals believed to be involved in terrorist-related activity and when the Secretary of State has decided on the balance of probabilities that the person is or has been involved in terrorist-related activity and the restrictions that can be placed on an individual are both necessary and proportionate.

I am sure that the orders are not issued lightly and one would prefer to be in a position to mount a prosecution. It is welcome, on the other hand, that the orders can be challenged in the courts. As the noble Baroness, Lady Chisholm, said, when they have been challenged, not one has been quashed, which says much for the robustness of the system in place and the built-in checks and balances.

I seek confirmation from the noble Baroness that the Intelligence and Security Committee would be further involved in satisfying itself as to the robustness and operation of the TPIM orders. If that is the case, that provides a further level of parliamentary oversight but in an appropriate, confidential setting.

In conclusion, the order has my full support. It strikes the right balance between keeping the country safe, placing restrictions on individuals when no other option is appropriate and allowing those individuals to challenge them in the courts.

[Baroness Chisholm of Owlpen]

My Lords, I am grateful for the comments that have been made on all sides. Let me just answer the questions that were raised. The noble Baroness, Lady Hamwee, asked whether TPIMs have led to an increase in prosecutions; I am afraid that I am not able to say, for reasons that she can understand. She also asked about judicial involvement in the process. The High Court considers whether the decision to impose a TPIM was obviously flawed and then a later hearing will determine whether the TPIM is necessary and proportionate. The noble Baroness also asked about the impact on communities of relocation. The potential impact that a relocation may have on a local community is always carefully considered. The noble Lord, Lord Kennedy, asked about the security services and the committee.

[Lord Kennedy of Southwark]

I asked whether the Intelligence and Security Committee is involved in the oversight of these orders.

[Baroness Chisholm of Owlpen]

I think that it is—inspiration is appearing over my left shoulder as we speak. No, it is not completely involved at the moment. We are happy to consider that further.

In conclusion, TPIMs have proved to be an essential tool to allow the police and the Security Service to manage the risk from terrorism and one that is required today as much as when the Act was introduced in 2011. This is a tool that is subject to a considerable level of court oversight, rightly, to ensure that it is used only where it is a proportionate response. I therefore ask the House to approve the order.

Motion agreed.

Policing and Crime Bill

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, Amendment 228C in the names of the noble Lords, Lord Wigley and Lord Ponsonby, and the noble Baroness, Lady Howe, seeks to insert a new clause into the Bill. As we have heard, its aim is to provide additional protection for victims or witnesses of a serious sexual offence, using the test of whether it is reasonable to assume that a disclosure of the person’s identity,

“would put the victim or witness at risk of further harm”.

It is right to include the rights of victims and witnesses in primary legislation where possible, and this is what the amendment seeks to do. Both victims and witnesses of serious offences can be very traumatised by what has happened to them or what they have witnessed. The disclosure of the name of the victim or witness to the person alleged to have committed the offence could put them at risk of further harm, as we have heard, or of fear of further harm. That, in itself, can cause additional stress and trauma for the victim or witness. Therefore, this amendment would place a specific duty on the police, when considering releasing the names of victims or witnesses to the accused person, to take into account the matters listed in new subsections (2) and (3) of the proposed new clause. That would be a sensible and welcome move, and I hope the noble Baroness will respond positively to the amendment.

I fully endorse the comments of all those who have spoken to the amendment. I was particularly surprised to hear my noble friends Lord Ponsonby and Lady Cohen say that the police have no idea what the policy is in this area. I am amazed by that. I certainly fully endorse the amendment.

[Baroness Chisholm of Owlpen]

My Lords, as the noble Lord, Lord Wigley, explained, this amendment seeks to grant victims or witnesses of sexual or violent crime anonymity in cases where it is reasonable to assume that disclosure would put them at risk of further harm. The noble Lord has indicated that he is particularly concerned with cases of so-called “stranger rape”.

I say from the outset that I agree wholeheartedly that the criminal justice system must support and protect victims and witnesses, particularly victims of sexual offences who are especially vulnerable. There are already a number of means whereby those at risk of further harm can be safeguarded and I will briefly itemise these in a moment but, before doing so, I must point to a central difficulty with the noble Lord’s amendment. The overarching principle of our criminal justice system is that the defendant must be given a fair trial. This is clearly stated in Article 6 of the European Convention on Human Rights. Fundamental to this 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. I am sure the noble Lord accepts that the accused cannot be expected to defend himself properly at trial if he does not even know who is accusing him of the alleged crime. This amendment would fundamentally undermine that cornerstone of our justice system.

That is not to say that there should not be crucial safeguards in place for victims and witnesses who have had the grave misfortune to experience violent or sexual crimes. As I have indicated, there are already multiple mechanisms the police and courts can employ to protect victims. Where necessary for the purpose of the investigation, the police can seek to detain the accused for up to 96 hours pending charge and seek to have him or her remanded in custody post-charge. If it is not possible to bring charges within the time limits on pre-charge detention, the suspect can be bailed subject to conditions which prohibit contact with the victim.

There are also established provisions in legislation for witness protection programmes and the provision of special measures during criminal proceedings; for example, a complainant can give evidence via a live link or behind a screen.

There is already provision for anonymity of complainants or witnesses, to be used as an exceptional measure of last practicable resort. A witness anonymity order can be granted by the court if it is satisfied that their identification would adversely affect the quality of evidence given by them, or their level of co-operation with the prosecution. The Director of Public Prosecution’s guidance on witness anonymity is clear that where the prosecution cannot present its case in a way that allows the defendant to defend themselves, it is under a duty to stop the case, no matter how serious the allegations may be. Hence, this must be very carefully considered when deciding whether to grant victim or witness anonymity—fair, equal and open justice for all must be the imperative.

While I have every sympathy for the noble Lord’s objective of protecting vulnerable victims and witnesses, I hope he will accept that the blanket approach provided for in his amendment is fundamentally at odds with our system of justice and the right of the accused to a fair trial. It is important to remember that the accused is just that: accused. He or she is not convicted, and is presumed innocent until proved guilty. This amendment arguably assumes guilt and undermines the protections and safeguards against miscarriages of justice of which this country is justly proud. Moreover, there are already a number of mechanisms available by which victims and witnesses can be supported through the criminal justice process. Given these points, I hope that the noble Lord will be content to withdraw his amendment.

Policing and Crime Bill

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Committee: 4th sitting (Hansard - part one): House of Lords
Wednesday 9th November 2016 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, this new clause is in general most welcome and I am happy to support it from these Benches. It seeks to ban the possession of fireworks, smoke bombs and flares by those attending live musical events. As we have heard, these are extremely dangerous and can burn at more than 2,000 degrees, as the noble Baroness, Lady Chisholm, outlined. There have been a number of injuries, and perhaps we may hear more about that when she responds.

I was surprised to learn that while these items are banned at football matches, it is not the case at musical events. A valid point has been made about widening the ban to other events. That should be considered, too, rather than just picking one area of a problem that may be more widespread. If I am correct, the amendment does not stop the organisers of the event using these articles but just protects the people attending, and prevents people putting them in their bags and setting them off recklessly in the crowd.

The other amendments are consequential. I am generally supportive of them but the noble Baroness, Lady Hamwee, made valid points that require a response from the Government.

[Baroness Chisholm of Owlpen]

I thank noble Lords who have taken part in this short debate and hope that I can answer their questions.

On the point regarding consultation, the proposed new offence is supported by the music industry. The national policing lead for festivals, Assistant Chief Constable Andy Battle of West Yorkshire Police, who is in charge of dealing with these sorts of events countrywide, has also welcomed the proposed legislation. Therefore, we have indeed consulted. In fact, organisers have already made it clear that fireworks should not be brought into festivals but feel that an offence is needed to provide better and greater deference to this understanding and to concentrate people’s minds.

Why does this apply only to music events? The data gathered by the crowd management organisation Showsec on behalf of Live Nation recorded 255 incidents involving pyrotechnic articles at live music events in 2014. This covered seven music festivals and other, smaller venues. This new offence is being created to target the specific problem of pyrotechnics at live music events. There is no evidence to suggest that pyrotechnic articles are a problem at other kinds of events, with the exception of football stadiums, which are covered under sporting events control.

The noble Baroness, Lady Hamwee, also asked about extending the ban outside the event. Extending the offence to include travel to a music event or festival would not only widen the scope of the offence considerably but put it at odds with current legislation on the possession of fireworks and flares. There are also practical considerations regarding how such an extension could be enforced. Police officers would need reasonable grounds to believe that individuals were travelling to a musical event with pyrotechnic articles in order to search them. In our view, this would be an onerous demand on police time. The national policing lead for music festivals, Andy Battle of West Yorkshire Police, agreed that any provision around travel would not be helpful and be problematic to enforce.

A noble Lord asked why fireworks could be included in the general celebration of the event by the organisers. We accept that pyrotechnic articles are often used as part of a performance, and we would not want to restrict that. The new offence will maintain the distinction between pyrotechnics authorised for use as part of a festival or event and those misused by the public. I hope that that has covered everything.

Policing and Crime Bill

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Committee: 4th sitting (Hansard - part two): House of Lords
Wednesday 9th November 2016 Lords Chamber

[Baroness Chisholm of Owlpen]

I was not suggesting that, just that there are difficulties—other reasons why it could be more difficult to bring in. That is not to say that we are not keen to look further at this issue. However, because we want to consider the findings of the sharia law review, I ask my noble friend to withdraw her amendment so that we have a chance to do that.

[Lord Kennedy of Southwark]

What is the timescale for the review that the Minister mentioned?

[Baroness Chisholm of Owlpen]

That is up to the review and we do not know yet.

Policing and Crime Bill

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Committee: 2nd sitting (Hansard - part one): House of Lords
Wednesday 26th October 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, this section of the Bill gives the power to designated bodies to make super-complaints to Her Majesty’s Chief Inspector of Constabulary. The complaints can be made where, in the opinion of those bodies, a feature of policing is harming the public and needs to be looked at.

The noble Lord, Lord Paddick, listed three organisations to make these super-complaints to be put on the face of the Bill. I have some sympathy with the amendments that have been put forward, but I understand that they are probing amendments. I hope that when the noble Baroness replies she can give us some indication of the organisations likely to be designated to make these complaints under the regulations. It is important that, when creating these new powers, we have some idea of what the organisations are likely to be. Are those listed in the amendment likely candidates to be designated when this comes into force, or are there others?

[Baroness Chisholm of Owlpen]

I am grateful to the noble Lords, Lord Paddick and Lord Kennedy, for the opportunity to debate the provisions in the Bill that will create a new system of policing super-complaints.

There are currently three extant super-complaints systems, having been originally created in the Enterprise Act 2002. These systems exist in the commercial sector, the financial system and in payments regulation. All relate to systemic issues affecting consumers relating to private sector organisations. The police super-complaints system, although based on the success of these antecedents, will be the first such system to address issues in the public sector.

A super-complaint is defined in Clause 24 as a complaint that,

“a feature, or combination of features, of policing … by one or more than one … force is, or appears to be, significantly harming the interests of the public”.

Only bodies designated for the purpose of these provisions will be able to make a super-complaint, but any body can be designated if it meets the relevant criteria. Those criteria for designation will, following consultation, be laid out in regulations. The system will be “owned” by the HM Chief Inspector of Constabulary, so as to be sufficiently independent of government. Ultimately, this system will allow charities and advocacy groups to raise systemic issues they identify in policing in a more effective way, leading to the improvement of policing in England and Wales.

I turn now to the noble Lord’s amendments which focus on the regulations relating to designated bodies and the designation process contained in Clause 25. The designated bodies able to make a super-complaint will be set out in regulations. Amendment 128 would require the Government to consult on such regulations. We have provided in Clause 25 for consultation on the regulations setting out the criteria for designation, but we do not believe that it is appropriate to consult each and every time a new body is given designation status. Any body that is so designated will have been assessed as meeting the criteria for designation. The Government believe that the criteria are the key to getting the right bodies involved in the system. This is why it is the criteria rather than the bodies themselves that will be subject to consultation. Following consultation on the criteria, further consultation on the resulting list of designated bodies would be unnecessary and, if conducted every time a body is designated, would be burdensome.

On Amendment 129, the Government agree that the nature of the bodies involved in the super-complaints system is key to its success. That is why we shall be consulting widely on the criteria for designation. Furthermore, the Government intend to include a requirement in the criteria for designated bodies to act as umbrella bodies for smaller organisations. This will ensure that any bodies that notice a systemic issue with policing, but are not designated, are still able to raise an issue through another organisation.

We have engaged with a number of key bodies, including Citizens Advice, in the development of this policy. We will continue to work with these bodies throughout its implementation to ensure that the system works in the public interest. It will of course be open to Citizens Advice, the Law Society and the National Council for Voluntary Organisations to apply for designated body status, but that decision is a matter for them. The Government would welcome the input of your Lordships on any particular bodies or organisations that may work towards the improvement of policing through becoming designated bodies.

Amendment 130 would require the first regulations made in relation to designation to be subject to the affirmative procedure. The Government set out the rationale for applying the negative procedure to these regulations in their delegated powers memorandum. That memorandum has been considered by the Delegated Powers Committee which did not take issue with the application of the negative procedure whether on the first or subsequent exercise of these powers. The negative procedure is consistent with the legislative framework applicable to existing super-complaints systems and I see no good case for departing from it here.

Having given these provisions in the Bill the airing they deserve, I hope that the noble Lord will be content to withdraw his amendment.

[Lord Kennedy of Southwark]

The noble Baroness has talked about consultation on the regulations. Is there a timescale for when that will take place because obviously the Government will complete their consultation and make a decision before the regulations come into force? Can she give us some idea of when it will be?

[Baroness Chisholm of Owlpen]

If there is a timescale that we know of, I will write to the noble Lord, but I do not have it here in my notes.

[Baroness Chisholm of Owlpen]

We do not know how many super-complaints will be made because it is difficult to judge that. The point about the super-complaints is that they will make an enormous difference to the way things are done. It was interesting to note that in March this year the then shadow Home Secretary, Andy Burnham, held a seminar with the noble Baroness, Lady Lawrence, which brought together groups that are still campaigning for justice, such as the Shrewsbury 24 campaign, the Orgreave Truth and Justice Campaign, and Justice 4 Daniel. A common thread runs through all of these groups but the way the system works at the moment forces them all to plough their own furrow; it does not allow them to join forces. The super-complaint proposal will rebalance the system in their favour and mean that they can join together.

[Lord Kennedy of Southwark]

My Lords, perhaps I may pursue the point about the regulations one more time. The noble Baroness has said that there is no timescale but that she will write to me if she can find out if there is. I should say to her that this issue is very important to the campaigns she has just listed. If this legislation gets on to the statute book without us knowing where we are with the regulations, of course it cannot come into force. I hope that she will take back to the department and her ministerial colleagues that the consultation should be done with the utmost urgency. There is no point in passing the legislation if people cannot actually make their complaints.

[Baroness Chisholm of Owlpen]

I do not have a timescale. I do not want to give the noble Lord false information, so it is only fair that I write to him.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, this section of the Bill deals with whistleblowing and investigations by the IPCC. It provides a new power for the IPCC to investigate matters raised by a police whistleblower without the matter having to be raised with the police force concerned, and provides further powers to protect the identity of the individual or individuals concerned. All the amendments in this group are in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, with the exception of Amendments 133 and 134 in the name of my noble friend Lord Rosser.

Amendment 132 seeks to provide as much clarity as possible and allows for the eventuality that the person making a complaint could still be under the direction and control of a chief officer of police. This amendment raises an interesting point, which was highlighted by the noble Lord, Lord Paddick, when he presented his scenario to the House a few moments ago. I hope that when the Government respond they will be as clear possible in their reasoning if they do not think the amendment is necessary.

The amendments in the name of my noble friend seek to add clarity to this section of the Bill by making clear that these provisions cannot be used if the matter is subject to an ongoing investigation. Amendment 134 would allow for whistleblowing protections to be applied to police witnesses. These are good amendments that would strengthen what is proposed by the Government.

When reading and thinking about Amendment 135, I was not completely convinced that it was either necessary or should in fact be there. Having said that, I listened to the points made by the noble Lord, Lord Paddick, and I think that he persuaded me on those.

I am not sure what Amendment 136 adds to the Bill as it would not put in the Bill an exclusive or exhaustive list. Amendment 137 is completely correct: organisations representing police officers and staff must be consulted before regulations are made concerning this section of the Bill. It is not good enough to rely on the subsection that talks about other organisations that are deemed appropriate. Those organisations deserve to be in the Bill when it leaves this House.

[Baroness Chisholm of Owlpen]

I am grateful to the noble Lords, Lord Paddick and Lord Kennedy, for the opportunity to debate the provisions in the Bill that will strengthen protections for police whistleblowers. 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.

Forces should, and do, provide channels for staff to raise such issues in confidence. However, Her Majesty’s Inspectorate of Constabulary has found that the quality of reporting arrangements and support offered to whistleblowers varied considerably by force, and a key concern was a lack of trust in confidential reporting. That is why, through Clause 27 and Schedule 6, we are creating a specific power for the Independent Police Complaints Commission to investigate whistleblowing allegations. If the IPCC decides to investigate, it does not have to refer the matter to the force unless the concern is about a conduct-related matter for the purposes of Part 2 of the Police Reform Act 2002. Even if it decides not to investigate, it will have to take all reasonable steps to ensure that the whistleblower’s identity is protected. These changes will give officers and staff much greater assurance that their concerns will be considered objectively and discreetly.

I have listened with interest to the points raised by the noble Lords, Lord Paddick and Lord Kennedy, and on two points I have some sympathy—I see that I have surprised the noble Lord, Lord Kennedy. The first is dealt with in Amendment 132, which seeks to modify the definition of a whistleblower to include those raising a concern about matters that occurred within a police force prior to them joining the police. The legislation as currently drafted allows for existing and former members of a police force to raise concerns about matters that occurred while they were serving. It is evident that some cases of police misconduct and malpractice can go unreported for some time, and it may be appropriate that there be some scope for this to be brought to light, as prescribed under new Part 2B, by a whistleblower who had joined the force at a later stage.

Amendment 133, tabled by the noble Lord, Lord Rosser, and spoken to by the noble Lord, Lord Kennedy, addresses the concern that there is a risk under the new provisions that a police officer or staff member interviewed as a witness in connection with a Part 2 investigation by the commission could be deemed a whistleblower, and that this could lead to confusion and complexity. Amendment 133 would prevent the IPCC having to start a new investigation where one is already under way in relation to the concern that has been raised. I am sympathetic to that point.

However, it is not the intention of the legislation to capture those providing factual information in an existing investigation. Rather, the aim of the legislation is to encourage whistleblowers to come forward and capture those concerns that are not being investigated but, in the public interest, should be considered independently by the IPCC and subject to its recommendations.

For this reason, I have less sympathy with Amendment 134, which would allow the IPCC discretion to confer whistleblowing status on any individuals providing evidence in existing investigations. We do not wish to create an expectation among police witnesses that the IPCC could offer them protections in return for giving their evidence. I understand that the IPCC has concerns about the protections available for those who provide it with evidence, but this is a much broader issue which needs be considered in the longer term, beyond the narrow confines of the whistleblowing provisions and in consultation with all relevant policing stakeholders.

Amendment 135 would impose an express duty on the IPCC to inform a whistleblower that his or her identity may be disclosed in the course of any criminal proceedings and to give the whistleblower an opportunity to withdraw the concern. The legislation is quite clear on the protection of anonymity and the circumstances in which a whistleblower’s anonymity might cease to be protected. As well as criminal proceedings, such circumstances could, for example, include the interests of national security and allegations of misconduct against the whistleblower him or herself. It is not practicable for the primary legislation to include every possible prescription. We would expect the IPCC to do its best to ensure that police officers were aware of the limitations of anonymity before they raise their concern, as I do not believe that it would be practical or desirable to provide for a concern to be withdrawn or unsaid by a whistleblower.

Guidance will support the new provisions, including an update of the College of Policing’s Reporting Concerns guidance, to promote awareness and understanding of these important reforms for whistleblowers. The protections offered by the new process that the Government are providing for whistleblowers can only go so far, and certainly not at the expense of allowing criminals to escape justice.

Amendment 136 would restrict the power of the Secretary of State to stipulate the matters on which the IPCC can make recommendations to a police force in cases where it has decided not to investigate a whistleblower’s concerns. I reassure the noble Lord, Lord Paddick, that the intention is not to provide the Secretary of State with the power to prescribe an exclusive list but merely to describe the kinds of recommendations that the IPCC may make. The purpose of the provision is to assist the IPCC in those cases where it decides, with the whistleblower’s consent, to refer the matter to the appropriate authority.

Finally, in response to Amendment 137, the Bill already requires the Secretary of State to consult on the whistleblowing regulations with police staff associations as members of the Police Advisory Board for England and Wales. This matter was discussed in the House of Commons and subsection (5) of new Section 29M to the Police Reform Act 2002 was inserted on Report there to provide for this requirement.

On the understanding that I will consider further, in advance of Report, Amendments 132 and 133, I ask the noble Lord, Lord Paddick, to withdraw his amendment.

[Lord Kennedy of Southwark]

I was pleased that the Minister was sympathetic to the point I made on Amendment 133; that is certainly progress. My noble friend raised an important point. We do not want it not to be addressed in legislation on the suggestion that it will come back as guidance, and then we have as an unintended consequence when the guidance is not strong enough that someone makes a complaint and what we thought could not happen does. We need to reflect on that, and perhaps the Government could come back on Report, because I think my noble friend has identified an important issue: we would not want a conflict there to cause problems in future.

[Baroness Chisholm of Owlpen]

We will reflect.

Community Pharmacy in 2016-17 and Beyond

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Thursday 20th October 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, first, I thank the noble Baroness, Lady Chisholm, for repeating the Statement made by her honourable friend in the other place. Community pharmacies play a huge role in our health and social care system. It is estimated that 80% of patient contact in the NHS is with community pharmacies. Elderly people and those with long-term conditions, in particular, rely on the service provided by their community pharmacy.

For all the warm words and reassurance from the noble Baroness, nothing in the Statement gives comfort to anyone. It confirms, despite concerns raised in this House and the other place and the concerns of the pharmacy sector, patients and the general public, that the Government are carrying on as before. Policy option 2 in the impact assessment, the Government’s preferred policy option, states that,

“there is no reliable way of estimating the number of pharmacies that will close as a result of this policy”.

So we have spending cuts—12% for the rest of this year, 7.4% for next year—and an impact assessment in which the Government admit that they have no idea how many pharmacies will close, but we are supposed to accept the claim at the end of the Statement, that

“my firm belief that the future for community pharmacy is bright”.

To make that claim have an ounce of credibility, the Government will have to do a lot better than the Statement produced today for the House.

We face unprecedented demand on health and social care services, and the importance of local pharmacies is greater than ever. When I go to my GP or my local pharmacy, there are always posters up telling people to go to their local pharmacy for a variety of conditions, not the GP or A&E.

Can the noble Baroness tell the House what she estimates the effect of the spending cuts will be on GP services in general, the out-of-hours service in particular, and on pressure on A&Es, where there is already a problem with people seeking treatment who should really be dealt with by other parts of the NHS?

There is very little information about the effect of these cuts, but some research has been commissioned on the effect of cuts to the pharmacy sector. The results are staggering: 36% of pharmacies could be forced to reduce their opening hours; 76% might have to limit currently free services, such as deliveries to housebound patients; 52% could reduce access to the pharmacist; and 76% could reduce staffing levels.

That does not sound like a bright future for community pharmacies to me; that sounds more like putting patient safety and welfare at risk with ill-thought-out plans. Can the noble Baroness say more about the effect of the Government’s plans on areas of greatest deprivation? Has she come across the pharmacy care law, a product of research undertaken by Durham University, considering the relation between community pharmacy distribution, urban areas and social deprivation in England? What evidence can she provide that the targeting of clusters in areas of the highest deprivation will not affect people who need healthcare services the most, and potentially further widen healthcare inequalities?

Can the Minister tell the House about the effect of the measure contained in this Statement on rural areas? We have heard the statement from the Government that no community will be left without a pharmacy. So can the noble Baroness, Lady Chisholm, give a commitment today that no rural area will lose its pharmacy as a result of these measures and tell us what specifically the Government will be doing to deliver on that commitment, as we need more than warm words? Has the Minister considered the impact that these measures could have on other NHS services? How does she square the desire from the Government for community pharmacies to do more to relieve pressure on GPs and A&E services when, as a result of these actions, opening times, services and the viability of these pharmacies could be put at risk?

In conclusion, if in the time allowed the Minister cannot answer all the points that I have raised today, I hope that she will give a firm commitment from the Dispatch Box to write to me and place a copy in the Library.

[Baroness Chisholm of Owlpen]

I thank the noble Lord for his questions. These reforms will make the necessary modernisation to provide the best possible service for the patient. He mentioned the problems with pharmacies closing and asked where that was going to leave us. We are investing £112 million to deliver a further 1,500 pharmacies in general practice by 2020. The NHS England pharmacy integration fund will be focused on the deployment of clinical pharmacies and pharmacy services in the community and primary care settings, including groups of general practices, care homes and urgent care settings, such as NHS 111. This will improve access for patients, relieve the pressure on GPs and A&E departments, ensure optimal use of medicines and derive better value, improving outcomes for patients.

The noble Lord also asked about pharmacies in deprived areas and rural communities. That is why we are setting up the primary access scheme and are today publishing the list of those pharmacies that will be eligible for funding from the pharmacy access scheme. These pharmacies will be protected from the full effect of funding reductions, and the scheme will include a review process to deal with any inaccuracies in calculations or any unforeseen circumstances. I hope that that answers the noble Lord’s questions.

Community Pharmacy

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Monday 17th October 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I thank the noble Baroness for repeating the Answer to the Urgent Question that was given in the other place earlier today. It is much appreciated by me and other Members. The stated aim of the Government has been to put pharmacies at the heart of the NHS. However, the proposals here will have serious and far-reaching consequences for patients, local communities and the NHS. Can the noble Baroness tell the House when we can expect to see the full impact assessment of these proposed cuts? What steps have been taken to ensure that the pharmacy access scheme is available to all community pharmacies based on the size and need of the population they serve? Does the noble Baroness see the contradiction in claiming to put pharmacies at the heart of the community while implementing arbitrary cuts? Finally, what steps is she taking to prevent the closure or the reduction of opening hours of community pharmacies?

[Baroness Chisholm of Owlpen]

I thank the noble Lord for those questions. The decision on the impact assessment has obviously not been made yet because the Government are thinking about the problems that have just arisen due to the PSNC not accepting the decisions that we thought had been made. There is no reason why this package should in any way affect the efficiencies of pharmacies at the moment. It is important to remember that the Government fund community pharmacies to the tune of £2.8 billion, and the average pharmacy receives £220,000 per year in NHS funding. We believe that the sector, which is made up of private companies that are often densely clustered together, can withstand this, and that the quality of services provided to patients will not be affected as a result. We know that 40% of pharmacies are in clusters of three or more, which means that two-fifths of pharmacies are within 10 minutes’ walk of two or more other pharmacies.

Electoral Registration Pilot Scheme (England) Order 2016

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Tuesday 5th July 2016 Grand Committee

[Baroness Chisholm of Owlpen]

I already am.

[Lord Kennedy of Southwark (Lab)]

I would not be so sure.

--- Later in debate ---

[Lord Tyler]

I am grateful to the noble Baroness, but I have not yet heard any explanation—I fear none is coming—of why we should not use the absolutely solid evidence of the electoral register that was, as it were, tested to destruction on 23 June 2016. What is the objection to using that register for the basis of this discussion? I cannot understand that.

[Lord Kennedy of Southwark]

May I, too, come back to that point, rather than interrupt again later? I agree entirely with the Minister’s point about the need to have a defined date. It is absolutely right that we have to fix the date—I have no problem about that—and draw the boundaries on the basis of the figures at that date. It is absolutely spot on to say that we cannot move the date around. The problem the Government have to contend with is that we had a fixed, defined date, which was 1 December 2016, but they chose to scrap it and bring it forward by a year. The problem is that that was going to be the date, so all these people would have been on the register and would have been counted. I do not think the Minister was involved, but somebody in government sat around the table and decided to bring this forward by a year. We have never had an explanation of that. We have talked about ghost voters and other problems and this and that, but it was the Government’s decision. The December 2016 date clearly guaranteed the commission plenty of time over the next couple of years to have a review. The review would have come to both Houses some time in 2018, been approved by both Houses and been in place for the election in 2020. However, somebody in government took a decision to bring it forward by a year, and I suspect that decision was made purely for party political advantage. If that is the case, it is absolutely disgraceful.

[Baroness Chisholm of Owlpen]

Obviously, that was before my time. The reason why the date cannot be changed now is that doing so would involve primary legislation. If such legislation was brought in to change the whole system, it would mean that we would definitely not get the boundaries reviews done in time for 2018.

[Lord Kennedy of Southwark]

I do not know whether that would have to be done through primary legislation, but I guarantee the Minister—I am sure the noble Lord, Lord Tyler, would do so as well—that the Government would get the full co-operation of both opposition parties and would get it through in a day or two. That would be absolutely no problem whatever. They could get it through next week if they needed to do so. I would provide complete co-operation on that, so there would be no problem about delaying things.

[Baroness Chisholm of Owlpen]

The problem is that the boundary review has already commenced and the Boundary Commission is expected to report later this year, so that would all go down the drain. There would definitely have to be primary legislation, and there is quite a lot going on at the moment, so would there be time for it? We would need to get it through so that we could do the boundary reviews by 2018, ready for the general election in 2020, so there really is not the time. The review has already started—I ought to move on, otherwise we will move round and round in circles—but that is the reason.

The noble Lord, Lord Tyler, wanted to know how the pilots were chosen. They have been chosen through the EROs, who came forward with ideas and proposals and expressed the wish to participate. He also talked about the Law Commission. The Government are currently considering the commission’s recent interim report on electoral law. This comprehensive and wide-ranging report makes a number of recommendations, including in relation to electoral registration, and it is important that the Government give the report due consideration before making a formal response. I hope he will understand that I cannot pre-empt the Government’s response at this stage. I look forward to continuing the work to improve electoral registration.

The noble Lord asked why the Government do not change the registration on which the boundary review is concluded. I think I have already covered that. As I said, it would need primary legislation, which is not possible at this time. The noble Lord also mentioned the extent of application. I think he was talking about England, Wales and Scotland, and how that worked. The legal jurisdiction is England and Wales, and that is its extent. The order applies only to England because the authorities concerned are all in England.

The noble Lord, Lord Kennedy, talked about looking at postal databases to boost registration levels. The use of data to improve electoral registration is an important tool, and indeed Birmingham and South Lakeland will look to harness the information from multiple local data sources to help target their activity at households. As the noble Lord, Lord Tyler, mentioned, there is indeed a terrible problem with take-up from certain representations in the country, particularly BMEs. We are looking at that, and it really has to be sorted out. It is a problem that seems to keep going on and on. The Cabinet Office is putting this at the top of its list.

Students are a difficult problem as they tend to move house every year. Part of the problem is that the actual academic year starts in September and October but the registration is done in the December the year before. Again, that is being looked into. We are hoping that civil organisations such as Bite The Ballot are having some impact in getting students to register. It was interesting that it seems that a lot of students registered to vote in the EU referendum but did not actually vote when the day came. We are looking into why that was the case. It cannot be that they all slept in from 7 am until 10 pm.

[Baroness Chisholm of Owlpen]

I take the noble Lord’s point. Interestingly, all chancellors at universities were written to at the start of the referendum to say, “Please encourage students to register”. At that time the students would have been able to get a postal vote, but I certainly take the noble Lord’s point. I have probably covered all the questions. Is there anything I have left out?

[Lord Kennedy of Southwark]

The Minister has covered the points and we are very grateful for that. However, I think generally that the Government have to do more in this area. I am sure that they wrote letters to the vice-chancellors, which is great, but this should be included as part of the normal work of the university; they should have to get people to register to vote. With all the thousands of young people turning up at universities every year, part of their induction should be getting them to register to vote. Registration is often seen as going on in the corner over there with the door shut, and few other people get involved. It must be much more of a responsibility when public servants in a variety of roles meet members of the public. That is what we need to do to make it work.

[Baroness Chisholm of Owlpen]

I agree with the noble Lord. Of course students can register at home as well. However, we are very fortunate today to have a Minister for higher education here, so I am sure she is taking note of everything that everyone has said and will go back and make sure that we concentrate on this one. It is a very important point and the Cabinet Office is well aware of it. We need to make sure that we do more.

[Lord Kennedy of Southwark]

Also, I thank the Minister for saying that she was in awe of all the experts sitting around the Room. I hope that one day we might be listened to.

[Baroness Chisholm of Owlpen]

I always listen to the noble Lord. I thank everyone who has taken part and I commend the regulations to the Committee.

Constituency Boundary Revisions

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Thursday 30th June 2016 Lords Chamber

[Baroness Chisholm of Owlpen]

The noble Lord certainly gets top marks for pursuing the same question over and over again. My answer is the same as it has always been—there is no change. It is important to remember that equalising the size of constituencies in the boundary review means that everyone’s vote will carry weight. If we let some constituencies stay smaller than others, voters in them will have more power than people in the bigger ones, and the boundaries will be based on data that are 20 years out of date. That cannot be fair or right. The principle of equally sized constituencies was endorsed by the Committee on Standards in Public Life and will ensure the vital demographic principle of one elector, one vote.

[Lord Kennedy of Southwark (Lab)]

I declare an interest as a councillor in the London Borough of Lewisham. The noble Baroness’s response today has been disappointing. How does she justify redrawing boundaries for the House of Commons using electoral data when millions of valid entries on the register will not be taken into account, due wholly to the decision taken by this Government to reduce by one year the transitional period?

[Baroness Chisholm of Owlpen]

I do not want to make a political point but this appears to be a cynical delaying tactic. In the previous Parliament there seemed to be a conspiracy to delay the boundary review by legislating to put it back until 2018. Here, we have new excuses to push it back again, but to do so would mean that the next general election would be fought on incredibly outdated constituencies. We need to move ahead and have the boundary review in place by 2018. We need to be able to put our candidates into their constituencies in time to fight the 2020 general election. This has been decided as the way forward. For goodness sake, let us just go ahead and do it.

Representation of the People (England and Wales) (Amendment) Regulations 2016

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Monday 6th June 2016 Lords Chamber

[Baroness Chisholm of Owlpen (Con)]

My Lords, these regulations will take steps towards the Government’s vision for the future of electoral registration—one where electoral registers are as complete and accurate as they can be and the electoral registration system is as efficient as possible, delivering value for money for electors and electoral administrators.

First, this will be achieved by amending the individual electoral registration—IER—application forms to allow applicants to identify that they are the only person resident at the address aged 16 or over and to provide discretion to electoral registration officers—EROs—as to when canvass forms must be sent where such information has been given. Secondly, the regulations will modernise the system of registration by enabling EROs to send invitations to register—ITRs—and reminders by electronic means if they wish to do so. These provisions aim to reduce the potential for confusion for members of the public by reducing unnecessary ERO correspondence and contact, and to reduce the overall cost of registration and the administrative burden on EROs. It is estimated that the regulations will reduce the overall cost of IER by around £1.1 million for the single-occupancy provision and around £7 million for email ITRs per year.

The instrument will also allow an attestor to an applicant’s identity to be registered in any local authority area in England and Wales. At present, both the attestor and applicant must be registered in the same local authority. This provision will assist those applicants whose identity cannot be verified using the Department for Work and Pensions matching process, local data matching or documentary evidence, who have to provide an attestation to verify their identity. This change will result in more eligible applicants becoming registered to vote.

In addition, the regulations make a number of minor amendments. Regulation 9 corrects an error in an existing regulation concerning the requirement to provide fresh signatures following rejection of a postal voting statement. Regulation 10 makes a technical amendment to a regulation concerning the rejected postal vote provisions at Greater London Authority elections. Regulation 11 corrects an oversight in current regulations by adding the Local Government Boundary Commission for England to the list of organisations entitled to receive a free copy of the full electoral register. The regulations make a consequential amendment; changing the name of the Local Government Boundary Commission for Wales, which is entitled to a copy of the register from Welsh EROs, to the Local Democracy and Boundary Commission for Wales.

Finally, I draw noble Lords’ attention to a minor error in the draft regulations as laid: the reference in Regulation 8(c) to paragraph (3)(aa)(ii) should be to paragraph (3)(za)(ii). We have been in consultation with counsel to the Joint Committee on Statutory Instruments in relation to this and they have agreed that due to the minor nature of this error they are content for it to be corrected when the instrument is made.

The Electoral Commission has been consulted on this instrument. The Cabinet Office agreed with the EC that it was important that the new IER forms would be available shortly after the regulations were made and that it would work with the commission on this. The EC raised a concern on the single-occupancy provision relating to the proposed removal of the requirement to send a canvass form. In a case where an ERO had determined a registration application just following publication of the revised register—say, on 1 December 2016—where an applicant indicates that they are the only person resident at the address, the ERO would then have no requirement to send a canvass form to that property at the next canvass, meaning that the property may not receive a canvass form until July 2018. To address this risk, the EC suggested that the ERO should not have to send an annual canvass form to persons with single-occupant status in cases where other records indicate that the property continues to be occupied by a single person.

The Cabinet Office responded that EROs have the duty to maintain the completeness and accuracy of the register and have discretion to conduct the canvass or check other records, where circumstances suggest it, and the EC may wish to issue guidance to EROs in this matter to support EROs in these deliberations. The ERO has the discretion and flexibility to disregard the single occupancy status and canvass a property at any time it feels it is appropriate. The ERO will be able to best decide what is appropriate according to the demographic and type of property.

Details were given to the EC of the timing of the ERO’s ability to elect to suppress one canvass for single-occupancy households. This meant that generally the maximum period for a property not receiving a canvass form would be 18 months, and that EROs also had discretion to contact properties outside the canvass period; for example, many EROs contact properties before an election.

The Information Commissioner’s Office—the ICO—was consulted and, in connection with the single occupancy question, requested clarity on the nature of information to be provided by the applicant about other individuals at that address. The Cabinet Office has assured the ICO that the IER application form will not require the applicant to provide any personal details about any other person resident in the property. The ICO also noted that the single occupancy information is not mandatory and would expect this statement to be clear and prominent in order that applicants are fully aware of that. The ICO’s advice was passed to the EC to address during the form design process.

The Cabinet Office expert panel of electoral administrators was involved in the development of the cost optimisation measures and was supportive. One panel member suggested that it be mandatory for at least one hard copy ITR to be sent to mitigate against emails going directly into people’s spam folders. We have responded that EROs will still be able to send hard copies if they wish to do so.

The Scottish Government were concerned that the removal of the requirement to send the next canvass form where the single occupancy application was determined outside the canvass period did not set a time limit, other than the reference to the next annual canvass, within which the application to register must have been made. The Cabinet Office responded in a similar vein, as it had to the concerns raised by the EC.

The Scottish Government also considered that the attestation provision should be extended to allow an ERO in England and Wales to also seek these assurances from EROs in Scotland and Northern Ireland. The Cabinet Office responded that rather than place a burden on Scottish and Northern Ireland EROs that these EROs could not currently benefit from, joint policy on cross-border attestations should be developed with the relevant Governments in due course.

The Scottish Assessors Association requested confirmation that the original policy intention was not to differentiate between England and Wales and Scotland in terms of location of attestors, and that the Cabinet Office should hold back on the equivalent Scottish regulations due to the impending further powers in the then Scotland Bill. The Cabinet Office confirmed that that was the case.

In conclusion—your Lordships must have thought I was never going to finish—I hope noble Lords will agree that the statutory instrument helps move electors and electoral administrators towards the Government’s future vision for electoral registration in England and Wales, and I commend the regulations to the House.

[Lord Kennedy of Southwark (Lab)]

I say at the outset that I am generally happy with these regulations. As such, my remarks will be fairly limited, but I have two specific points to make and would be grateful if the noble Baroness, Lady Chisholm, could respond to them when she replies to this very short debate.

Among other things, the regulations correct an error in existing regulations concerning the requirement to provide fresh signatures following the rejection of a postal vote. However, the Government should also look at the design of the forms, because the box requiring you to give your date of birth is so close to the signature that a very common mistake, which leads to postal votes being rejected, is that people put the date they complete the form in the box rather than their date of birth. Lots are disqualified for that very reason.

The regulations also allow for the transfer of the full electoral register to the Local Government Boundary Commission for England and make a consequential amendment following the passing of the Local Government (Democracy) (Wales) Act 2013. As we have heard, EROs have a duty to maintain the completeness and accuracy of the register and have discretion to conduct the canvass or other checks on records.

I welcome the proposal to send an invitation to register and reminders by electronic means as more and more of how we engage with the state in its various forms is by electronic means, although the point about EROs still being able to use paper forms is well made and I am pleased that they will have the discretion to use either or both media when seeking to get the most accurate and complete register possible.

On page 5 of the Explanatory Notes, the Scottish Government made the point—and I very much agree with them—that EROs in England and Wales should be able to seek assurances from EROs in Scotland and Northern Ireland and, one hopes, vice versa. That is entirely right. The comment from the Cabinet Office, however, was that cross-border attestations were a matter to develop joint policy on with the relevant Governments in due course. That is a bit odd. Could the Minister give us some idea how long “due course” is, as it is one of those phrases like “How long’s a piece of string”? As for cross-border attestations, I thought we lived in a United Kingdom. We need a review of the language used by the Cabinet Office and should never again have such phrases in documents. I am very disappointed that the noble Lord, Lord Forsyth, is not here, as I am sure he would have something to say about that—perhaps I should have brought it to his attention.

I conclude by saying that I support the regulations, which do good things. If the Minister could respond to that one point, it would be great.

[Baroness Chisholm of Owlpen]

I thank the noble Lord for his response. I am grateful to him for scrutinising this instrument, which will make amendments to the electoral registration process to reduce potential confusion for members of the public and enable the cost of registration and the administrative burden on electoral registration officers to be reduced.

In response to the noble Lord’s queries, the postal vote forms have recently been redesigned by the Electoral Commission after user testing. The position of the date of birth information is further up the form as a result. User testing showed that individuals had more understanding of each question asked of them; it seemed clearer.

[Lord Kennedy of Southwark]

When I cast my vote recently and put my postal vote in the envelope, it actually said on the envelope, “Have you put your date of birth, not today’s date?”. Clearly, everybody knows that it is a problem. One hopes that the new form will work but perhaps we can do some further testing after the referendum. Many people lose their vote in all sorts of elections because they get so confused. Normally, with signatures, you put today’s date—that is quite a common thing to do. I had not noticed that it had moved, although I am sure it has, but we should look at it for the future.

[Baroness Chisholm of Owlpen]

The noble Lord makes a good point. We should go back and consider making further changes to make it easier. We will do that.

As for the noble Lord’s point on borders, the mention of attestations being made across borders was the language used in the consultation response from the Scottish Government officials. We also talk about attestations being made across local authority borders. Reference to borders in that context by no means undermines the existence of the United Kingdom; it just reflects that differences exist between the situations in England and Wales. It is more a term of use than anything else.

On the noble Lord’s second point, our estimate is that it will happen in due course, as he says. I can say that I hope that it will be early next year. Productive discussions between Ministers and officials have already begun following the formation of the new Scottish Government. Both Ministers have agreed in principle to take forward joint legislation to make similar changes in Scotland, once the Scotland Act 2016 has devolved powers over the local government register to the Scottish Parliament. Subject to the approval of both Parliaments, we anticipate that changes could be in force early next year. That is good news. That is also subject to the need to co-ordinate all the legislative processes between both Parliaments to ensure that the changes made by the Scottish Government relating to the local government register come into force at the same time as those made by the UK Government relating to the UK Parliament register.

I think I have covered all the questions. The statutory instrument before noble Lords will make useful changes as part of realising the Government’s future vision for electoral registration in England and Wales. I beg to move.

Voter Registration

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Thursday 12th May 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, does the noble Baroness agree that we have a serious problem of under-registration in the UK?

[Baroness Chisholm of Owlpen]

I do not disagree with the noble Lord. That is why we are working so hard and why we have provided £7.5 million to local authorities to make sure that we encourage people to get on to the register. As I said earlier, we have made it much easier to do that, and all we can do is to keep plugging and make sure that we succeed.

National Assembly for Wales (Representation of the People) (Amendment) Order 2016

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Monday 22nd February 2016 Grand Committee

[Baroness Chisholm of Owlpen]

I thank noble Lords for their contributions, and I will try to answer the points raised.

The noble Lord, Lord Wigley, raised the issue of devolution, and it is absolutely true that the Welsh Assembly will be responsible following the Bill, so noble Lords will not have to listen to me speaking here for at least 20 minutes on the subject. That is very important and will make a big difference.

The noble Lord also raised a point about the Welsh language. The Cabinet Office is looking into that further and is making sure that these mistakes do not happen in the future. It is getting together more people who can speak Welsh and can be in charge of this sort of thing, because it is not good for that to happen.

The noble Lord, Lord Kennedy, made a point about the performance of returning officers. Even though monetary sanctions are indeed very important—it draws people up short if they think they will not get the amount of money they thought they would—I agree with him that other important considerations should be taken into account. The Cabinet Office has organised two seminars for all returning officers at PCC elections in England and Wales to provide training and guidance for the delivery of the PCC elections in May. In fact, on a recommendation from the Electoral Commission, the Welsh Assembly SI provides that Welsh Ministers may reduce or withhold returning officers’ charges in the event of poor performance at the Welsh Assembly elections. This is a significant sanction, and we have no plans at this time to introduce further sanctions in the event of poor performance. Our focus will be on the guidance and training provided to the returning officers.

[Lord Kennedy of Southwark]

From my time as a commissioner, I remember that we had the situation where—I do not know whether returning officers are paid some money in advance—there was a complicated process of providing receipts and getting the money back. It seemed to go on for ever and was very cumbersome. Maybe we need to have the bills first and then pay the money out, but it seemed to go on for months. It was very inefficient. That went on between the commission and the returning officer. How this is funded and how money comes back needs to be looked at.

[Baroness Chisholm of Owlpen]

The noble Lord raises an important point. Having it that way round seems to make things more complicated, and I will certainly take that back for further discussion.

The noble Lord also raised the issue of candidates’ expenses limits. Our current policy is not to link candidates’ expenses limits to inflation so that they increase automatically in line with inflation. Of course, we have agreed to increase the limits for the Welsh Assembly elections in May following a recommendation from the Electoral Commission. As with other electoral matters, this will be the responsibility of the Assembly once the Wales Bill is passed.

The noble Lord also raised the issue of the existing thresholds for reportable donations. These have not been changed since 2010. The current thresholds apply to elections across the piece. We do not wish to make a change for a particular poll and we have no plans to change the current arrangements, although, as with other electoral matters, we will keep this under review.

We do not as a matter of course consult political parties on electoral SIs, which are often technical in nature. We keep representatives of the parliamentary parties panel informed of our work on upcoming elections at meetings held on a quarterly basis. We will draw to their attention any planned changes we think would be of particular interest to them.

United Kingdom: Election Law

Debate between Baroness Chisholm of Owlpen and Lord Kennedy of Southwark

Monday 15th June 2015 Lords Chamber

[Lord Kennedy of Southwark]

Before the Minister sits down, I am conscious that she said that she could not respond to all the points in the debate today and that we could speak to her later. Could she go a bit further and agree to write to the five noble Lords who have spoken in the debate, as some very important issues have been raised here today?

[Baroness Chisholm of Owlpen]

Indeed, the noble Lord is right, and I shall certainly be doing that. I have made a note of several of the points that I would like to go back to, to make sure that I have a fuller answer, rather than just giving a short answer now. I shall certainly go back to noble Lords with written replies.