European Union (Withdrawal) Bill

Baroness Finlay of Llandaff Excerpts

Committee: 9th sitting (Hansard - continued): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Campbell of Pittenweem]

It is a question of judgment. The mechanism that the noble Lord suggests may achieve the objectives that he sets out, but it will almost certainly encourage delay, and perhaps even more controversy. What is required here is very quick resolution, in an uncontroversial way, of issues that lie at the very heart of the economies, perhaps, of the United Kingdom—and those of Scotland, Wales and Northern Ireland. It seems to me that the noble and learned Lord, Lord Mackay, has pretty well hit the target.

[Baroness Finlay of Llandaff (CB)]

My Lords, I feel a bit like somebody from Relate. I am a Cross-Bencher, I am not a lawyer, and I do not now have an interest in Scotland—although I do have an interest in Wales. I just want to make a few brief comments, to assure the noble and learned Lord, Lord Wallace of Tankerness, that I tried to write a schedule for the Bill to set out the frameworks—but for all kinds of reasons I did not, and felt it would be a waste of massive effort to try to achieve something that I could not. However, I think the idea is commendable that we should put on the face of the Bill the matters that will go to the devolved Administrations, which would then not be for dispute. That may go a long way to assuaging some of the concerns.

I remind the Committee that the noble Lord, Lord Wigley, spoke about the need to be even handed, based on what has gone on before. The amendment tabled by the noble and learned Lord, Lord Mackay, is an enormous step forward. The fact that the Government have agreed to invert Clause 11 is also a major step forward, but there is still more to be done. We need to look at what will happen in the event of deadlock. Having a rotating chair, which has been suggested, would certainly help to establish some sense of equality. The frameworks need to include some sort of equal partners in resolution. I hope that some of the negativism of what has gone before may be laid to rest, because we have to move forwards into the new world. At least we have had some positive suggestions tonight. I repeat my thanks to those who have been communicating with us to try to achieve that—but we cannot just say, “Right, we’re there”. There is more work to be done.

The suggestion of a sunset clause could be helpful too, because that would concentrate the mind, and would provide some reassurance. I had put my name to Clause 11 stand part, but it is now to be replaced anyway, which is a great relief. I hope that we shall recognise, and not forget, the need for equality of voice and equality of representation. The failure to do that in the past should be a lesson to us as we go forwards.

[Lord Forsyth of Drumlean]

My Lords, I have never known a Government make such efforts to meet the arguments that have been put against their first intentions. If it had been up to me I would not have tabled an amendment at all; I thought the Bill as it originally stood was perfectly able to provide for what was required. Instead the Government have listened to the representations from Scotland and Wales. I think the representations from Wales have been a little more constructive than those from Scotland, for the reasons that my noble friend Lord Lang spelled out. I agreed with every word in his excellent speech, although it unsettled one or two people.

I have enormous respect for my noble and learned friend Lord Mackay, and I usually agree with him. I do not know whether he, like me, is a fisherman—but if he were, I would say that the fly he cast should be called the federalist option. What he is proposing is to change our constitution. This is a Bill to put in place the powers that have been lost to the European Union; it is not a Bill in which we should be remodelling our constitution, or reassessing the devolution settlement that was agreed, in the case of Scotland, in the latest Scotland Bill. Therefore, I do not support the amendment of my noble and learned friend Lord Mackay of Clashfern. I have noticed that those people who would like to see a federal arrangement and would like us to remain in the European Union have endorsed it with great enthusiasm, and I can see why.

European Union (Withdrawal) Bill

Baroness Finlay of Llandaff Excerpts

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Wigley (PC)]

My Lords, I too support the noble and learned Lord’s amendment, and I entirely agree with his approach—that it is best to focus on a couple of larger debates rather than going through all the minutiae at this point. However, it is important to underline the principle—that matters coming back from Brussels that deal with devolved subjects should go to the devolved authorities. It is on that principle that I hope we shall concentrate as we move forward.

[Baroness Finlay of Llandaff (CB)]

My Lords, I too thank my noble and learned friend Lord Hope of Craighead for introducing this set of amendments, to which I have added my name, so concisely and well. I start the afternoon by placing on record my thanks to Ministers, especially the noble Lord, Lord Bourne of Aberystwyth, and the Secretary of State for Wales, who have been trying to keep us—certainly me—up to date in relation to Wales. I have had correspondence during the morning. I hope that the spirit of the debate today will recognise the importance of the devolved competences, and the need to respect them and find a way forwards. Like others, I will reserve my main remarks for later, in the larger debates.

[Lord Morris of Aberavon (Lab)]

My Lords, I too support the noble and learned Lord, Lord Hope, and I too will reserve my remarks until we come to the government amendments. This is new ground; it needs an explanation, and unless the explanation is reasonable I will certainly oppose the provision.

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[Baroness Finlay of Llandaff]

My Lords, again I am grateful to my noble and learned friend for the way in which he has introduced this group of amendments. It is absolutely essential that we remember the principles of legislative competence and what has been devolved, and that we try to cut across the technicalities. It is also important to remember that the devolved Governments of Scotland and Wales should not be faced with any implementation framework in which they will have no decision-making power in negotiations and which intrudes on their area of competence.

Our withdrawal from the EU seems to be quite a tangled web. The job of those sitting in Cardiff and Edinburgh is to serve their constituents and defend the rights that they fought so hard to earn in the first place; it is not to return such rights in legislation to Westminster without being sure that it serves their populations well. That is why it becomes so important to make sure that there is an equality of voice in working out these different aspects of legislation.

When it comes to tertiary legislation, it is even more difficult to understand why there would not be such an equality of voice—I find that quite bizarre. I am afraid that, as the noble Baroness, Lady Hayter, said, the way that the Joint Ministerial Committee has worked to date has not been as good as it might have been, and I hope that today will mark a watershed and a complete change in those relationships.

It is important to remember that EU law was in place when we went to devolution. Therefore, as things come down from Europe, they should drop equally into the three Governments of Wales, Scotland and England, and, where they affect the whole of the UK, they should be looked at on a UK-wide basis. However, that does not mean that all of a sudden Parliament has a complete say over what goes on in the devolved Administrations. There is an equality of voice that must not be eroded by the process.

Therefore, these amendments are really important and I am glad that the Minister said that she will look at them carefully. It is very difficult to know which bit we should look at in great detail and tweak—although it will be more than tweaking; it will probably need a massive rewrite. It is not for the Committee to do that; it should simply raise the concerns, with the rewriting to be done afterwards. We will come to the main debate soon.

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I want to reinforce the important points made by the noble and learned Lord, Lord Hope, and the noble Baroness, Lady Finlay. I have spoken before in your Lordships’ Chamber about the importance of clarity in the devolution settlement and the difference that it has made to the relationships between the Scottish Government, the Scottish Parliament, the UK Government and the UK Parliament over these last 19 years. The lack of serious or unresolvable dispute about where the legal powers lie has been the result of that initial clarity in 1998.

The one area where there were problems, particularly in the early years, related to the fact that the Scottish Parliament and the Scottish Government had responsibility under the Scotland Act in relation to EU law. The difficulties and legal challenges, both inside Scotland and to the European Court in relation to the actions of the Scottish Executive, the Scottish Government and the Scottish Parliament, were in relation to that relationship.

Therefore, clarity is required as part of the debate and discussion on the Bill—perhaps not today, given the assurances from the noble Baroness, Lady Goldie, on the Government’s behalf, but certainly following the debate on Clause 11. It is vital that we have greater clarity and the right principles behind whatever replaces the current wording in the Bill on the matters raised by the noble and learned Lord, Lord Hope.

European Union (Withdrawal) Bill

Baroness Finlay of Llandaff Excerpts

Committee: 8th sitting (Hansard - continued): House of Lords
Monday 19th March 2018 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I support the amendment. I remind the House that many of these inventions in the biomedical sphere actually happen in academic clinical departments. That is where the idea comes—the bright spark of invention. They will establish whatever the device is, and then often it will be a spin-out company from the university that will start to develop it. These new devices are getting smaller and smaller so they are getting into smaller blood vessels or parts of the body to do things that, when I graduated in medicine, were unimaginable.

However, in order for a company to be able to go out and market the device, it has to be able to go through all the rigorous testing procedures that the noble Lord, Lord Warner, outlined. So if we create yet another barrier and another difficulty, the bright sparks are not going to stay here because other universities are already looking at them. Those universities want them and their inventiveness; in Europe they are very attractive commodities. We have to remember that a part of our economy and our economic strategy has depended on our science, and our biological sciences in particular. We have a unique situation with the NHS where we have a broad patient population that is different from some of the other ways in which healthcare is organised and allows such innovation to happen here.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been an excellent debate. Here we have a successful and innovative industry with lots of SMEs involved, but their very future is at risk because of the approach that the Government are taking to Brexit. We need to be clear about this. The noble Lord, Lord Empey, talked about CE marking and the notified body. What is crucial is that the CE marking is a logo placed on medical devices to show that they conform to the requirements of the various EU directives. The notified body is an organisation that has been designated by an EU member state to assess whether manufacturers and their medical devices meet the requirements set out in legislation. As part of our being within the EU, the Medicines and Healthcare products Regulatory Agency is the designated competent authority in the UK. That sets out the legal position and why it is so important in terms of both patient safety and the ability of UK companies to do business in the rest of the EU and market some of the most extraordinary machines, devices and developments that have been seen in the world.

Here we come to the point where there is such a risky position for our companies. To take the point of the noble Lord, Lord Deben, we should look at Mrs May’s Mansion House speech, where she referred to the fact that the Government,

“want to explore with the EU, the terms on which the UK could remain part of EU agencies such as those that are critical for the chemicals, medicines and aerospace industries”—

and she mentioned the European Medicines Agency by name, although, extraordinarily, not Euratom, which we will come to debate later this evening and tomorrow. She went on to explain why we should be seeking associate membership of the European Medicines Agency and the other agencies named. She said:

“First, associate membership of these agencies is the only way to meet our objective of ensuring that these products only need to undergo one series of approvals, in one country. Second, these agencies have a critical role in setting and enforcing relevant rules … Third, associate membership could permit UK firms to resolve certain challenges related to the agencies through UK courts … Fourth it would bring other benefits too. For example, membership of the European Medicines Agency would mean investment in new innovative medicines continuing in the UK, and it would mean these medicines getting to patients faster as firms prioritise larger markets when they start the lengthy process of seeking authorisations”.


If ever I have heard a convincing case for remaining a member of the EU, the Prime Minister set it out in her Mansion House speech. The point is the one that the noble Lord, Lord Deben, made. We are going to beg for associate membership. As the Prime Minister said, we will follow the rules and pay the cost, but we will have no say in the rules that are being set. At the moment, the MHRA is one of the most effective negotiators in the EU, so when it comes to medicines safety or devices, the UK has a huge influence. That means a big advantage for UK companies, because it has in mind the interests of the UK as a whole.

We are to throw all this away and be supplicants at the altar of those agencies, because the Government have woken up to the fact that they cannot let those industries go down, so they will have to negotiate associate membership. It will be on EU terms, because they are a lot bigger than we are. We will have to abide by their rules but no longer will we have any say in how those rules are developed. As the noble Lord, Lord Deben, said, we are trying to negotiate the least worst option, but it is a worst option.

It is a wholly depressing picture: this Government seeking to destroy so many of our innovative industries through their obdurate and ignorant approach to the way industry, the UK and the EU work. The noble Lord, Lord Empey, has done us a great service tonight by letting us debate this important issue. It would be nice, would it not, to hear a proper response from the Government to show that they recognise the problems that they are now causing for British industry?

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[Lord Deben]

I bring the Committee back to the fact that this is a Bill about withdrawal, so we might ask why this amendment has been tabled. I say to the noble Lord, Lord Warner, how important the amendment is because of the Government’s commitment. The Government said that they were taking into British law all that was in European law. This amendment draws attention to the fact that the Government are not doing what they said they would: they are not taking into British law the protocols and those things that surround European law to which one can refer in a court case. We have been precise in what we have taken in and the Government have been precise in what they have excluded.

I speak in favour of the amendment because there is no reason why the Government cannot accept it. It is not possible to say that this is all a matter of negotiation—we are not going to negotiate this. Before my noble friend Lord Duncan spoke on the amendment before last, he gently upbraided me for suggesting that I knew how he was going to reply, and of course he did reply that it was not possible to commit the Government to the protection of medical devices because that was going to be part of the negotiation. However, there will not be a negotiation as to whether we will uphold the highest standards of public health; that will not be part of the negotiation at all. What is true is that the protection that, as a member of the European Union, we now have under European law would no longer be afforded to us were we to leave the European Union. Therefore, this amendment is merely to ensure that the withdrawal Bill does what the Government said that they wanted to do, which is to take into British law all those things that at the moment are in European law. This is an important amendment, because it helps to complete what, unfortunately, the Government left out from what they said that they would achieve.

There is a second reason why the amendment is so important. I am fortunate to be the chairman of the Committee on Climate Change. One of the things that is important to us is that we have a statutory position. When the carbon budgets, which we prepare, are passed into law by both Houses of Parliament, they cannot be changed thereafter without the Committee on Climate Change saying that that is right and proper. That is how we in Britain have made sure that we do not go back on our climate change commitments.

For most of our laws, we do not have that kind of protection, but we did and do have it because of our membership of the European Union. That is the kind of change that we will have to make if we leave the European Union to make sure that the public are as well protected after so sad an occasion as they were before. It is not me saying that but my right honourable friend the Secretary of State for Defra, who is not known for his enthusiasm for the European Union. He has made it clear that we need to protect the people of Britain post Brexit by having very clear rules which give independent enforcement of environment law. He said we cannot have a system whereby environment law is affected by the whims—or sensible policies—of Ministers. He said we have to have something independent and has promised that he will present it to the Houses of Parliament. If that is true about environmental law, is it not also true about public health law? Do we not need precisely the same protection for public health that we clearly need to replace the protection we have in the European Union on the environment?

I shall listen extremely carefully to my noble friend’s answer, but I do not think that we can now say that the reason this is not acceptable is because of negotiation, nor do I think the Government can really say that they do not believe that this is what their policy is. This is, after all, only a statement of what the Government have said they believe—so why can we not put it on the face of the Bill, continue the protection which the British people have in the European Union, so that if we leave we at least make sure that public health is as protected afterwards as it was before?

[Baroness Finlay of Llandaff]

My Lords, as the noble Lord, Lord Deben, has pointed out, this is about moving into our law the regulations that currently protect us. That is why it seems appropriate in this Bill. I remind the Committee that the implications of Brexit for our health were published in the Lancet in a review in November last year, which detailed the areas that are in jeopardy. A fortnight ago, the Guardian reported a leaked document highlighting an unprecedented, co-ordinated effort by transatlantic right-wing think tanks to secure what they described as the “ideal” trade arrangement between Britain and the USA, which would involve the UK diluting its existing standards on food safety. I remind the House that the excessive use of antibiotics has resulted in superbugs, which is precisely why we have been worried about diluting any food safety standards. Working conditions in the farming areas that want to export to us are troubling. This would tear up the precautionary principle, whereby companies have to prove their product is safe before it can be sold, rather than waiting for it to be proven unsafe before it is recalled. That precautionary principle and the principle of safety run right through everything. As my noble friend Lord Patel outlined, and as previously discussed in Amendment 30, this relates to all of the infective areas, but it also covers toxic substances and the way that we handle those.

I strongly support this amendment because it would build up the health protections that we have built up slowly since we entered the European Union. It would simply guarantee the continuity of the present conditions and ensure that Articles 9, 11 and 168(1) of the Lisbon treaty are actually respected. It would require European institutions to maintain high levels of human health in all their policies and activities and would mean that these are then mirrored in the UK. It would of course affect areas of shared competence, such as environmental law, health and safety law, and public health law, as well as trade law. By mainstreaming this, it would build on precedents in UK law such as in Section 75 of the Northern Ireland Act, Section 149 of the Equality Act and Section 3 of the Human Rights Act. It covers acts of all public authorities, as I understand it. Judicial acts taken in interpreting retained EU law would then be subject to the same standards that we are used to and have become accustomed to. It covers the whole of the UK, irrespective of whether legislation is made or adopted in Westminster, Belfast, Cardiff or Edinburgh. I cannot see a reason not to accept it. It would maintain the standard to which we have become used. We are all aware of the dangers of dropping that standard.

[Baroness Northover (LD)]

My Lords, I support this amendment on public health. I feel very strongly on this issue, having played my part as a member of the health team on the government Benches that took the then Health and Social Care Bill through the Lords. My responsibility was to take through the measures on public health; I had an academic background in a related area. We placed public health back with local authorities. We said that public health would be safe there, in its appropriate place. As we have heard, the 19th-century development of public health in Britain led the way in extending life for those living in cities globally, and it did so in a local authority setting. It was not antibiotics that transformed life expectancy, it was public health measures.

So has public health been safe? Not recently, I submit. With local authorities and social care in crisis, what chance for public health? So when the Faculty of Public Health flags to me its worries about public health if we leave the EU, I listen. Yet another threat from Brexit, it seems, as the noble Baroness, Lady Blackstone, pointed out. The Minister will be aware of the concerns from the Faculty of Public Health and others working in this most important field. I am sure he will assure us that there will be no reduction in standards if we leave the EU—in which case, enshrine that in the Bill.

The public health community is concerned that, without the safety net of EU law, we may see our existing high level of vital public health legislation, policy and practice eroded. This year we celebrate the 70th anniversary of the NHS, as the noble Lord, Lord Warner, pointed out. Public health is a critical part of that NHS, not a side issue. We know that diseases such as cardiovascular disease, cancers, chronic respiratory disease and diabetes account for around 40% of premature mortality in the UK, and they continue to place a significant burden on patients and the health service. These conditions are to a large extent preventable and their costs in human, social and economic terms largely avoidable. We also know that effective public health strategies to tackle these and other challenges deliver an extensive range of benefits. As the noble Baroness, Lady Chalker, and the noble Lord, Lord Deben, have referred to, we have been able to bring benefits and improvements worldwide by the promotion of public health, from sanitation onwards.

That is why safeguarding public health is vital. The Government have said they will continue to co-operate with the EU on disease prevention and public health and that the UK will continue to play a leading role in promoting public health globally, so the amendment would simply put that commitment in the Bill. I have heard those promises on public health. When I was in government, I was worried that public health in local authorities was not ring-fenced as we were ring-fencing the NHS. I was assured by our coalition partners that all would be well. I was particularly worried about the position of reproductive health, given how essential yet controversial that might be. The reason why I am supporting the amendment today is that those promises proved rather hollow, so no promises that the Minister gives tonight will ring true to me. Whatever he may genuinely feel or whatever may be in his brief, they could be out of the window should the UK decide that standards are to be lowered or costs cut in an effort to increase the UK’s competitiveness. That is why the amendment is so important.

Digital Economy Bill

Baroness Finlay of Llandaff Excerpts

Report: 2nd sitting (Hansard - continued): House of Lords
Monday 20th March 2017 Lords Chamber

My other two amendments were largely dealt with in Committee. I retabled them because I would like to be a bit more explicit. Having discussed the issue with Ministers, I think that they have the authority to add gas and electricity networks to the list. They are the bodies with which fuel-poor households are increasingly likely to engage, as distinct from the supply companies, so at some point they should be added to the list. If that is a relatively easy process, I will not pursue Amendments 27 and 28. However, I would like on the record a clearer indication from Ministers that the ability to add health authorities and health professionals, including GPs, to the list could come further down the line, because it would address an issue that was clearly identified by the Government as one of the most important reasons for engaging in information and data sharing in the first place. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, I have tabled amendments in this group. I start by thanking the noble and learned Lord, Lord Keen of Elie, and his Bill team for having met with me and for dealing patiently with my queries. I know from that meeting that the Government are not minded to accept my amendments, but I would like the arguments to be put on the record.

I have listened carefully to the noble Lord, Lord Whitty. While I do not dispute at all that his amendments are well intentioned, I can see enormous difficulties arising in determining the threshold of the condition—how severe it has to be, which co-morbidities might be aggravating one another, which members of the family would be involved and so on. I am not sure from the way he argued for his amendment whether an email notification system against a set of clear criteria that had been pre-negotiated with the consent of the patient or family would meet the needs and be simple and straightforward. Would it be a communication system free from the risk of mining the patient’s clinical records? The reason I ask is that at the moment health bodies are not specified in the Bill, but if they were included, that would certainly need legislation because in effect it would override the common-law duty of confidentiality.

I know that at the previous stage the noble and learned Lord, Lord Keen, said that the Government were minded to consider bringing health and social care bodies within the scope of these powers in the future and that that would be done using a statutory instrument passed by the affirmative procedure. I appreciate that the Minister said that there would be wide consultation before that happened.

The difficulty is that in Clause 36(7) it appears that the duty of confidence, which could apply to the duty of medical confidentiality, could be removed if health is brought within the scope of the Bill. It could provide a legal gateway for sharing medical records for purposes that are not currently specified among a wide range of government departments and public service providers. The concern is that to date a special legal status has been afforded to health data in the common-law duty of medical confidentiality due to its sensitivity and the importance to the public of a confidential health service. This common-law duty of confidentiality protects health data over and above the safeguards provided by the Data Protection Act, so simply referring to the Bill’s requirement to comply with that Act when making disclosures does not maintain the current level of protection.

If the Bill proceeds unamended and the Government include health bodies in the list of specified bodies, which they could do by statutory instrument, I think that would be viewed as a serious assault on medical confidentiality because it would open up the power to share confidential information. Indeed, problems with the failure of the current safeguards in the system were aired this weekend over TPP, the IT system that many general practitioners use. In a way, that demonstrated that the current safeguards in place around the IT systems are, frankly, inadequate.

NHS Digital could be drawn into the Bill’s information-sharing powers. It holds vast quantities of confidential data, which would mean that the Bill could give the Government direct access to them without consent, because the process would override the current common-law duty. This needs to be considered in the context of the National Data Guardian, who has spoken about the need to build trust in the health system’s ability to handle data, and a real concern among many patient groups of the general mistrust that their very confidential data could be shared.

I believe that my amendments will not be accepted, but if they are not I hope the Government will be able to reassure me that if health data were to be brought into the Bill’s information-sharing powers they will not just be added to the current framework created by the Bill and then the duty of medical confidentiality deemed to be protected, but that there will be full public engagement and full parliamentary scrutiny prior to proceeding, and that the protections in place would include independent oversight and real-time monitoring of the data sharing. In Wales, the IT system overseeing NHS Wales has instituted real-time monitoring because there was concern that staff could have used their access rights to unprofessionally access healthcare records of people with whom they did not have a direct care relationship. I am afraid that human nature is that people are rather inquisitive about what may be happening to people they know, but those may be very sensitive and very private data. Therefore, they need the highest safeguards around them.

The problem is that once there is a data leak it really cannot be pulled back and closed. I hope the Government will provide the reassurance that, as well as the other aspects, there will be real-time monitoring and independent oversight of the whole process, with additional sanctions that will be of a high enough level to, I hope, act as a major deterrent for any breaches of any data-sharing agreement.

[Baroness Hamwee]

My Lords, we have Amendment 28AV in this group, which is also about the common-law duty of confidentiality. Obviously that includes doctor-patient confidentiality. We are with the noble Baroness in her concerns. Apart from wanting to see that duty preserved, the reason for the amendment is to seek confirmation that it is to be overwritten rather than preserved. I found subsection (7) quite difficult. When we were contacted by a member of the public who was clearly qualified to read the legislation with a query about it, it seemed appropriate to raise this because it is quite difficult to follow. Clearly, one should be quite certain about what we are doing.

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[Lord Keen of Elie]

I am obliged to noble Lords, and in particular I thank the noble Lord, Lord Whitty, for his continued interest in this area and for taking the time to meet and discuss this matter at some length with me and the Bill team. Clearly, as the noble Lord, Lord Collins, observed, this is an important part of the fuel poverty agenda. That is why it takes on such considerable importance even when faced with issues such as medical confidentiality.

On the point about common-law confidentiality, and medical confidentiality in particular, it is not an absolute; there are already statutory gateways through which information can and must flow on occasions, and therefore one must not take it that medical confidentiality is somehow completely ring-fenced and separate from the world that we actually live in. There are circumstances where there should be, has to be and is disclosure. It may be possible—I put it no higher in terms of this Bill—to address a further gateway. However, one should not confuse any mechanism within the Bill with the consequences of human or IT failure, however regrettable they may be. I agree with the noble Lord, Lord Collins, that one has to have regard not only to the structure within which information is shared but to the need to ensure that the sharing process is itself secure. But they are separate issues.

The noble Lord, Lord Whitty, acknowledges that some parts of his amendment may not be necessary. Amendments 27 and 28 would provide that information can be shared with licensed electricity and gas distributors for the provision of fuel poverty assistance. They can already be added to the data-sharing arrangements in Clause 32 by regulations. The Government will consider whether to exercise this power in the context of considering the future role of electricity and gas distributors in delivering fuel poverty schemes. I reassure the noble Lord that the provision made by Amendment 26 is already covered by Clause 31, which provides powers to share information for,

“the improvement of the well-being of individuals or households”.

Of course, this includes,

“their physical and mental health and emotional well-being”.

While we do not consider the noble Lord’s amendment necessary in this instance, the objectives that he highlights are an example of how in appropriate circumstances information held by healthcare providers could, in future, be valuable to support the more effective delivery of public services to those in need. It underlines why the Government are unable to accept Amendments 28AV, 28AW and 28AX, tabled by the noble Baronesses, Lady Finlay and Lady Hamwee.

The Government do recognise the particular sensitivities with identifiable health information, as highlighted in the National Data Guardian for Health and Social Care’s recent review of data security, consent and opt-outs. Health bodies in England are therefore not included in the list of bodies now in the Bill that will be permitted to use these powers. However, as the noble Lord, Lord Whitty, noted, health issues are a key factor in the complex social problems faced by people, whom we are aiming to support with these powers. Excluding the use of identifiable health information altogether would remove the possibility of including such information in the future without amending legislation. It would be premature to take this step in advance of the implementation of the National Data Guardian’s review and the public consultation that that will engage.

An amendment to maintain the common-law duty of medical confidentiality is not considered necessary. Those powers enable information to be shared only where it is already held by specified persons, acquired in a different context from the patient-doctor relationship. Any information that would have been subject to medical confidentiality would have found its way into a specified person’s hands only through an existing gateway. As I indicated earlier, there are already statutory gateways through which such information can move. Of course, we are dealing with permissive powers.

At this late hour, I will attempt the impossible: to satisfy the interests of all parties in the context of these provisions. Beginning with the inquiry from the noble Lord, Lord Whitty, health bodies are not presently included in the schedules. As drafted, it would be possible for health bodies to be added to the schedules at a future date but—and I emphasise this—no decision will be taken until, first, the Government publish their response to the Caldicott review and any recommendations have been embedded and assessed; secondly, there has been a public consultation on the issue and the views of the National Data Guardian and appropriate representative health bodies such as the GMC and BMA have been sought; and, thirdly, there has been a debate in both Houses pursuant to the affirmative procedure required to add bodies to the schedule. I hope that that reassures the noble Lord, Lord Whitty, that it can be done, although it has yet to be done, and that there are steps that we will take to reassure the noble Baronesses, Lady Finlay and Lady Hamwee, before any such step is implemented.

If health bodies or information were to be expressly excluded in the Bill, it would require primary legislation to enable those bodies to share information under the powers. If and when we decide that it would be helpful to have those powers—in implementing the fuel poverty initiative, for example—it would be most unfortunate if we were delayed by literally years before we could actually achieve the objective, when in fact there is provision here to do it by way of the affirmative procedure so that both Houses have ample opportunity for debate.

If we take those steps, there will be safeguards. When considering whether to add any health bodies to the schedules in the public service delivery, debt and fraud chapters, clear safeguards will apply. First, before a new body may be added to the schedule, it must show that it fulfils the relevant criteria relating to that specific power designed to ensure that only bodies with relevant functions for holding or requiring information relevant to that particular power may be added. The Minister must consider the procedures in place for secure handling of information before any new body can be added to the schedule—a point raised by the noble Lord, Lord Collins. A decision will be taken on whether it is in the public interest and proportionate to share identifying health information in order to achieve a specified objective. There would be no question of simply sharing this information more widely. The powers must be exercised in accordance with the Data Protection Act, which requires that only the minimum information necessary to achieve the objective may be shared. Under the Bill—and under the Data Protection Act—personal information may be used only for the purpose for which it was shared and data must be stored securely to ensure compliance with that Act. Again, this point was raised a moment ago.

Identifying health information will constitute sensitive personal data and so to ensure fair and lawful processing, it must fulfil one of the more onerous Schedule 3 conditions as well as the Schedule 2 condition under the Bill. In addition, new criminal sanctions have been included for wrongful disclosure with a maximum penalty of up two years’ imprisonment, a heavy fine or both. Further steps can of course also be taken to remove a body from the schedule if it does not comply with the requirements of the Act.

I do not suppose that I have satisfied anyone with that explanation at the end of the day. But, if nothing else, I hope that it has assisted in informing your Lordships as to why we consider that these amendments are not appropriate and that it would be appropriate to retain the ability to introduce health bodies by way of appropriate regulation. We feel that there will be appropriate safeguards and extensive consultation before any such step is taken, so I invite the noble Lord to withdraw his amendment.

[Baroness Finlay of Llandaff]

May I ask for clarification over one issue? Would a statutory instrument, when brought forward, envisage adding health bodies to the Bill in a blanket way, or would it be envisaged that there would be statutory instruments for specific purposes, such as health bodies for the purposes of identifying fuel poverty, and that when something else emerged it would require a separate statutory instrument so as to keep that gateway as narrow as possible?

[Lord Keen of Elie]

With respect, we clearly intend to maintain any gateway in as narrow a manner as is reasonable. The point that the noble Baroness raises is really a question for another day. We are not there yet; health bodies are not included in the schedule. If and when it is contemplated that they will be, there will be extensive consultations on the very issues that she raises.

Assisted Dying

Baroness Finlay of Llandaff Excerpts

Monday 6th March 2017 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, North America’s evidence is worrying. Oregon’s reports show that some people given lethal drugs, based on a prognosis of under six months, lived for up to three years before killing themselves. Who knows how long they might otherwise have lived? Two-thirds of Oregon’s doctors want no involvement. “Doctor shopping” is widespread as campaign groups steer patients to ready repeat prescribers. In the two-week delay required, they cannot possibly know a person’s domestic pressures, masked depression and subtle coercions, nor adequately assess capacity. Almost half cite not wanting to be a burden as their reason. Lethal prescription numbers far exceed such deaths. What happens to uningested drugs? No one knows whether ingestion is ever coerced.

Canada’s recent law, like the Netherlands’ and Belgium’s, includes euthanasia beyond terminal illnesses, with predictions of around one in 20 of all deaths through medically provided lethal drugs. That would equate to around 25,000 such deaths annually here. Violent suicide rates do not fall where assisted suicide is the norm.

Digital Economy Bill

Baroness Finlay of Llandaff Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Wednesday 8th February 2017 Lords Chamber

Moved by

[Baroness Finlay of Llandaff]

232: After Clause 87, insert the following new Clause—
“Active consent of online buyers required for retention and use of contact information
(1) A seller of goods or services via the internet must not retain, share or use any contact information provided by buyers for any purpose except directly facilitating the sale of the good or service, unless the buyer has actively consented to the retention, sharing or use of the information. (2) For the condition in subsection (1) to be satisfied, the seller must have specified any purposes to which the buyer is consenting.(3) The condition in subsection (1) may be satisfied by the buyer ticking a box on the seller’s web page, but it may not be satisfied by the buyer failing to untick such a box which has been pre-filled. (4) A seller who contravenes the requirement in subsection (1) is guilty of an offence.(5) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding 10% of the seller’s annual gross operating profit.”

[Baroness Finlay of Llandaff (CB)]

My Lords, I will try to be brief because the hour is late. I should also say that this amendment probably has one part missing. In my role as chair of the National Mental Capacity Forum, I have become aware of the large number of people who are subject to fraud through scams and through “suckers lists” which are compiled and which circulate for a great deal of money among criminal gangs. Unfortunately, these have often originated because people have purchased something online, have provided their details and have not opted out of those details being shared with others who may have like-minded sales intentions, partners or whatever.

One of the problems is that, when they are purchasing online, a lot of people really do not understand which boxes they should have clicked on—such as terms and conditions—and which they should have unclicked. So the point of this amendment is to try to require anyone selling any item online to have a box that has to be opted into for a mailing list, rather than the current opting-out system.

Where the amendment is deficient is that it does not stipulate that such permission should be time limited. I hope the Minister will point out to me that it should be time limited for a year, so that the criteria should be even tighter than in my amendment.

I think that enforcement would have to come through the Information Commissioner’s Office, rather than trading standards, but I am grateful to the trading standards workforce for having discussed this issue with me at length, as have social work leaders.

I know that the general data protection regulation will come into force across the European Union on 25 May 2018. This will replace the European data protection directive. It is associated with severe financial penalties for non-compliance. Despite our Brexit arguments, I would expect that, because of this timing, we should also be adopting this data protection regulation. I would be interested to know from the Minister whether that is correct. Coming in with it is law enforcement data protection—directive 2016/680—on protecting personal data processed for law enforcement purposes. This will replace the data protection framework decision 2008. It appears that this directive must be transposed into national law by member states by 6 May 2018. Again, there is a question over whether this will be coming into force. If both of these come into force fully, they may cover this area, although that is unclear and I cannot help feeling that it would be much better for us to get it in our own legislation first.

So that we are aware of the size of the problem, the national scams team has a current database of more than 240,000 people on suckers lists, which is growing all the time because data are intercepted by enforcement bodies and reveal that more and more people have had their data sold on in this way, often by criminal gangs, who then go on to target people and groom them. Many of the people targeted are lonely, isolated citizens who are confused by the opt-in/opt-out. They do not see the small print and they do not understand the significance. The amendment, I hope, would solve the problem. I beg to move.

[Baroness Buscombe]

My Lords, I begin by apologising to the noble Baroness, Lady Finlay of Llandaff, that she is, for the second time running, almost a tail-end Charlie. It was the same on Monday evening and she was extremely gracious in waiting for so long for us to get to her amendment. I welcome her amendment, which highlights an issue that most of us here are acutely aware of when buying goods and services online; namely, the consequence of not ticking a box or, in some cases, unticking a box.

The proposed new clause imposes a fine not exceeding 10% of a seller’s annual gross operating profit if a seller of goods and services on the internet were to retain, share or use the contact information of a buyer without the buyer’s consent to do so. It also makes it a requirement that websites provide a tick-box which is not pre-filled, as a means by which an individual can demonstrate their acceptance of having their contact information processed by the seller.

Although I accept the spirit of the amendment, I do not believe it is necessary, for the following reasons. Clause 77 already places a statutory duty on the Information Commissioner to publish a direct marketing code of practice. Putting the ICO’s direct marketing code of practice on a statutory footing will make it easier for the Information Commissioner to take enforcement action against those organisations in breach of the direct marketing rules under the Data Protection Act and the Privacy and Electronic Communications Regulations. The current direct marketing rules are also clear, stating as follows:

“Organisations will need to be able to demonstrate that consent was knowingly and freely given, clear and specific, and should keep clear records of consent. The ICO recommends that opt-in boxes are used”.


The general data protection regulation—GDPR—which will come into force in May 2018 will introduce tough new measures on consent and will place obligations on data controllers to demonstrate clearly how they obtained consent when processing personal data, such as contact information. Silence or pre-ticked boxes as a form of consent will not be permitted under the GDPR. The GDPR will also allow tougher penalties to be imposed on organisations in breach of the rules: up to 4% of the organisation’s total global annual turnover, or €20 million.

The noble Baroness also suggested that the time limit for retaining personal information should be limited, for example, to a year. The reality is that time is not specified: one should hold on to the information only as long as is necessary to process payment or whatever the application is made for. For these reasons, I hope the noble Baroness will feel able to withdraw her amendment.

[Baroness Finlay of Llandaff]

I thank the Minister for that reply and for welcoming the spirit of the amendment. Just for the record, the reason for specifying a year if someone has opted into the mailing list is that over time their circumstances might change. They might want to withdraw their consent but not be clear about how to do it. I hope the Information Commissioner will consider that. People might also lose cognitive function over time and therefore become much more vulnerable to scams than they were when they opted in. So I hope that a time limit is also introduced. However, on the basis of the Government’s response, I beg leave to withdraw the amendment.

Amendment 232 withdrawn.

Digital Economy Bill

Baroness Finlay of Llandaff Excerpts

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

Moved by

[Baroness Finlay of Llandaff]

213D: After Clause 69, insert the following new Clause—
“Creation of a digital system for lasting power of attorney
(1) The Secretary of State must by regulations make provision for a fully digital process to apply for and create a lasting power of attorney, and for the verification by appropriate bodies of attorneys appointed under this process.(2) Regulations under subsection (1) may in particular—(a) provide for the use of secure electronic signatures in place of any requirements for physical signatures;(b) use electronic online methods to verify the identify of donors and proposed attorneys, either in conjunction with or in place of electronic or physical signatures;(c) require at least one other person to be notified automatically when an application is made;(d) permit in-depth checking of selected applications; (e) require the involvement of a solicitor in the application process;(f) create an offence of knowingly or recklessly providing false information in relation to an application for a lasting power of attorney, subject to a maximum penalty on summary conviction of a term of imprisonment not exceeding six months;(g) provide for appropriate bodies to use secure online methods to verify the identity of an attorney or donor; and(h) cover both health and welfare lasting power of attorney, and property and financial affairs lasting power of attorney.(3) Regulations under this section must be made by statutory instrument and may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”

[Baroness Finlay of Llandaff (CB)]

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

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

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

[Lord Keen of Elie]

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

[Baroness Finlay of Llandaff]

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

Amendment 213D withdrawn.

Digital Economy Bill

Baroness Finlay of Llandaff Excerpts

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

[Baroness Janke]

I am drawn to recall the words of the noble Baroness, Lady Buscombe, when she spoke on some of these issues. She said that the technology was moving so quickly that we need to be aware that things are changing—and that it would be important for the public to trust these procedures. A review of these processes is a good thing. Equally, government sometimes changes very slowly, so it may be a better opportunity to revisit some of the issues during a review. We would certainly support that. Again, it has been drawn to our attention by a number of data breaches that have not been notified, ever—so we certainly support the processes that have been outlined in the amendments about putting these on record to have the trust and confidence of the public. Our Amendment 111 in this group is to do with individuals being notified that personal data have been disclosed about them. Again, we feel that this is very important to engender public trust in the processes that we are introducing.

[Baroness Finlay of Llandaff (CB)]

My Lords, I would like to speak to Amendments 213A to 213C, which explore the Government’s commitment to transparency and how people can know about information-sharing agreements that are in place and, looking to the future, how the equivalent of a subject access request could work, explicitly to assist with fraud detection.

I draw the Committee’s attention to the comment from the Delegated Powers and Regulatory Reform Committee at paragraph 52, which noted that, without even allowing for parliamentary scrutiny, the powers in Clause 39 as drafted are as “inappropriately wide” as those in Clause 30, and seem to be deliberately so. Those very wide powers are of great concern. As an increase in digital technology emerges, the public need to be informed to understand how to use the resources available to them—and they need to know how data on them, as citizens, are being used. They must have confidence in the safeguards in place, otherwise we will have a population that increasingly refuses to engage with any kind of data registration.

It is unclear where health issues sit in this Bill. I declare all my interests in relation to health, as in the register. The powers can include, in Clause 30(10)(a), individuals’,

“physical and mental health and emotional well-being”.

That suggests that health data must fall within the remit of this clause, whether held originally by the NHS or whether they are then held by other bodies. It was in an interview that the Government Digital Service director-general gave as an example the large databases between the NHS and the DWP, commenting that these are large databases of citizens’ records and that we really need to be able to match them, which would suggest a read-across between the two. So while there is a prohibition in the Bill on the use of health and social care data for research, the approach may not have a prohibition in relation to data otherwise disclosed. The NHS bodies, for example, hold the data and, although the Secretary of State is not currently listed in the regulations as published, it is difficult to see how the Secretary of State could not be added to regulations at a later point.