Prison Sentences

Baroness Hamwee Excerpts

Monday 29th June 2020 Lords Chamber

[Lord Keen of Elie]

Rehabilitation is of course an important aim, but it is not the sole aim in the context of criminal justice. At present there are no plans to end short-term prison sentences. Of course, short sentences do not help some offenders turn their backs on crime, but protecting the public has to be our priority.

[Baroness Hamwee (LD) [V]]

My Lords, is the Minister satisfied that the rehabilitation provided during a short sentence can be sufficient to enable an offender to learn to live a better life, rather than learn to do crime better?

[Lord Keen of Elie]

It is very difficult to estimate the extent to which rehabilitation can be effective during a short prison sentence. Indeed, where someone is sentenced to a period of less than six months in prison, the median period actually spent in custody is about six weeks.

Terrorist Offenders (Restriction of Early Release) Bill

Baroness Hamwee Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Monday 24th February 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, we have heard some powerful and thoughtful speeches, but that is what this House does well. I do not want to add to the debate on the retrospective effect of the legislation and the distinction between sentences imposed before and after these provisions come into force—there has been a lot of discussion about the jurisprudence—but I have wondered why we are using the term “retrospection” rather than “retroactive”. However, how the step is perceived by an offender, their family and their community seems to me to be particularly important and worth pausing to consider for a moment. Human rights compliance must seem less of an issue than what is perceived as further punishment.

I want to say a word about why it is necessary to look at the response to individual offenders who are going to be released at some point. Many noble Lords have said, quite rightly, that the can may be kicked down the road but it will not be kicked terribly far. I do not mean the knee-jerk—to use the term of the noble Lord, Lord Ramsbotham—“Let’s bang them up for longer because prison works,” or as the noble and learned Lord, Lord Falconer, put it more delicately, “in response to public pressure.” The violence both in our prisons as well as outside gives the lie even to prison working for the period that the prisoner is inside.

Most of the discourse has been about punishment—this is bound to be regarded as an extension of punishment—but what about rehabilitation? I was taught that there are three connected objectives in the sentencing of offenders, which ironically the victims of the Fishmongers’ Hall attack would have learned as students at the Cambridge Institute of Criminology.

We all recognise that this is not easy territory. Clearly, the process of deradicalisation, if that is the way to put it, is hugely complex. Can it be the same for each individual in their circumstances? What are the factors at play in each case and what are the risks? After the Fishmongers’ Hall attack, Usman Khan’s solicitor was reported as saying that none of the programmes to which his client was exposed tackled the underlying ideology and that he wrote to organisations outside the prison system requesting help for his client. So this must be a moment for focusing on the programmes by investing in research into what has the best prospects of success and investing in specialists who can administer them. The Minister must know as well as anyone from a department which has suffered 40% cuts that the probation service is buckling, and in any event, this is a very specialist area. We should share the success stories too. In summary, we should evaluate where we are and where we should be going.

The Parole Board, too, carries a huge responsibility. I acknowledge its expertise, but what extra support based on the best developing research and advice will it receive? Some risks are known within the system, as we have been discussing; otherwise, Sudesh Amman would not have been under close observation in Streatham. That must have been a huge cost, and as the noble Lord, Lord Evans of Weardale, reminded us, the resource is finite.

Like others, I am puzzled about the non-use of TPIMs, although I have heard the criticisms of them. And what about the conditions in our prisons, which are widely thought to be breeding grounds for radicalisation? This measure will add numbers—not that many and probably not for very long—to an environment which of itself is a risk, putting in danger those who are susceptible but who have been convicted of low-level offences or, indeed, completely unrelated offences.

What does the impact assessment for this Bill tell us? First, as regards the Prison Service, each additional prison place will incur annual running costs of around £63,500. We are told that that will not cover “additional rehabilitative activities”, so what will they be? Indeed, will there be any? On the Parole Board, the impact assessment says that the additional workload

“will be carried out largely within the current resources.”

Is that it?

I have said that there are success stories, as there are in some other countries. The noble Lord, Lord Hogan-Howe, drew our attention to this. I do not suppose that all programmes are fool-proof, but we should not dismiss them out of hand. Can the Minister tell us what is being done to learn from these and, dare I ask, to replace the partnership and co-operation agreement between the EU and, I think, six south-east Asian nations? I mention this because, apparently, a very successful programme is being applied in Malaysia for bringing people home from Syria. Alok Sharma, in a previous ministerial incarnation, said that Malaysia is a key counterextremism partner because

“it is a modern and moderate Islamic nation.”

The noble Lord, Lord Blair, mentioned a “deep dive”. When will that deep dive take place? It is in the nature of our role that we are generalists—or at least most of us are, although I accept that the lawyers among us are specialists—and one of the objections to fast-tracking legislation is that there is no opportunity for stakeholders and specialists to influence it. Earlier today, I was very glad to attend a meeting, or what I would call a seminar, organised by the noble Lord, Lord Anderson, which was tremendously helpful. We heard a range of views from people with a lot of experience. There is no opportunity for considering evidence, including evidence from government, to Parliament’s committees—which, like the noble Lord, Lord Pannick, I am amazed are not yet set up, but that is the way the other place operates. There is no opportunity to consider why the legislation is not to be extended to Northern Ireland, although I hear what has been said about that coming along with the next Bill. I am not sure whether those in Northern Ireland would regard that as satisfactory.

The cliff edge at the end of a sentence with no licence period is not the only timing issue, but a cliff edge with no licence seems to be very unwise—as decisions taken to show that “Something is being done” without time for consultation and consideration often can be. The powers of the probation service regarding someone on licence can be very tough, including recall to prison, so limiting or excluding that possibility cannot be appropriate.

I do not want to be glib, but in summary, and to follow the analogy made by the noble Lord, Lord Harris, will the bleeding start again once the sticking plaster is removed? Indeed, are we dealing with evidence-based policy or policy-based evidence?

Queen’s Speech

Baroness Hamwee Excerpts

Wednesday 8th January 2020 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am looking around but it would take a brave person to speak in the gap after such a long debate. It is no surprise that the expertise and passion of noble Lords has been evident in this debate, together with an appropriate dose of questioning and scepticism. It has been so wide-ranging that I will not attempt to refer to individual speakers or speeches—I do not envy the Minister her task in winding up—except to congratulate and welcome the noble Lords, Lord Davies of Gower and Lord Parkinson of Whitley Bay. I am sure they will remind us in the debates to come of those two great places and, no doubt, will both play quite a part in Home Office legislation.

Oven-ready or ready to pop into the microwave? One method cooks from the outside in, the other from the inside outwards—and, as we have been reminded, some things are left to simmer on top of the stove and cause an awful mess when they boil over. These are very different approaches to policy-making: imposition or development in consultation with the people affected.

I want to talk about immigration, which is so important to our society and our economy. The Government put that dish into the oven some months ago. We were told—I learned it authoritatively from the Home Office website well before the election—that we were to have an Australian-style points system. Of course, the Migration Advisory Committee is yet to publish its advice on this, but I have forgotten how much immigration law is created by ministerial fiat, through rules which do not even get the scarce scrutiny of secondary legislation. Perhaps that feeling had rather leached over. Every sort of policy benefits from consultation. That was acknowledged earlier today when one noble Lord spoke about victims. Things look very different when you have an informed or personal take on them, as we were reminded by recent reports of Her Majesty’s concerns about visas for polo events. Who had thought about polo events?

The tagline “Australian points-based system” does not tell us whether the points will be driven by the Home Office or by employers, or whether there will be an overall cap on numbers. There are many questions. The Home Office has not made a success of being both policymaker and administrator—or processor, if you like. Departments closer to the various sectors understand their needs and, one hopes, are able to unpack that awful phrase “the brightest and the best”. To me, that always raises the question: “Best at what?”

There is so much to understand about, for instance, different employment needs. I learned recently that seasonal workers are needed in far more sectors than agriculture, including at Christmas and during heatwaves and cold snaps, both of which put a strain on the health service. There are big, short-lived demands prompted by a duchess’s dress. Kim Kardashian tweeted about a lipstick and that was work for 400 people for three or four days. These things are not straightforward and they are not uniform across all the nations and regions of the UK.

I have been told that Australia has 90 different visas. I counted 74 online plus 46 which had been repealed. Am I being unnecessarily gloomy in thinking that having visas with different restrictions attached to each application will make the whole process a challenge for the Home Office? Individuals caught up in the Windrush scandal have understandable views about the efficiency of Home Office schemes. Apparently we now require legislation which will not, we are told, affect the operation of the existing compensation scheme —not even to speed it up? The Windrush experience inevitably worries EU citizens subject—or subjected—to the Home Office and we will of course debate this more next week. However, given that the Conservative manifesto proclaims—I think this has been quoted already—

“We want EU citizens who came to live in the UK before Brexit to stay”,


we will continue to try to turn that into reality. The Government’s response that the UK does not issue pieces of paper, something for which EU citizens have been pleading, does not meet the point. It defies credibility that 40% of those who have applied for settled status are entitled only to pre-settled status, which is what 40% have been granted.

Having been critical, I will say that I was glad to see an announcement before the election about the length of post-study visas and to see that there will be a boost for English language teaching. How will this be paid for? Please do not lay it on local authorities. This will be for “existing migrants”, so who qualifies?

Refugees are generally very keen to learn English. I want to say a word about refugees and asylum seekers, adults and children, families and lone young people, because so much of the election seemed to focus on little England. I want to remember that there are issues of morality as well as practicality, such as the importance of a safe rather than a hostile environment. We are part of a world community. I am worried, as other noble Lords have been, about the proposal for DfID to become part of the Foreign and Commonwealth Office. Its work must not be downgraded. One reason—only one of many—is because of the impacts that conflicts and climate change will have on the movements of people.

The issues I have mentioned are in one policy area in one of the topics of today’s debate, so I will allow myself one point on each of those topics to pick up some threads from the debate. Regarding a royal commission on criminal justice, we have had some mention of the proposals which the Government have already announced through the manifesto. Is that not rather pre-empting a part of the work of a royal commission? What is the basis for thinking that more years added to a long sentence will deter or reduce the risk of terrorism? There are too many dog whistles and too much that is simplistic. On home affairs, the National Crime Agency is to be strengthened but I have not heard what that actually means. I appreciate that the Minister will not have time to go into this tonight but should our priority not be to ensure that we are involved as possible—as we currently are—in contributions to and benefits from Europol, Eurojust, ECRIS, Prüm, Schengen and European arrest warrants? On the constitution, references have rightly been made to the rule of law. I just say: yes, along with and part of that are human rights.

I end with perhaps the gloomiest thought of all, but clearly I am not alone in this: it is the paradox of the Conservative and Unionist Party so endangering our precious union.

Non-Contentious Probate (Fees) Order 2018

Baroness Hamwee Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, this order relies above all on Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014. As that name perhaps suggests, it was a great Christmas tree of an Act. One recalls its passage all too well; it occupies no fewer than 231 pages of the Queen’s Printers’ copy, with 186 sections and 11 schedules.

This House discharges its scrutiny function very carefully, with great conscientiousness, but perhaps, just occasionally, Homer nods; did we perhaps nod here as we reached towards the end of this mammoth Bill? Of course, we must now construe and apply Section 180 as enacted. That said, while Section 180 contains apparently no limits whatever to the extent of its permissible use, provided always that the excess funds raised are devoted to the efficacy of the Courts & Tribunals Service, ought we not to construe it somewhat fastidiously so as to guard against its use for what is essentially a tax-raising exercise?

Of course, cross-subsidisation is permissible, but is it no less obviously the case that a point will come at which what is purportedly an enhanced fee with a view to cross-subsidisation becomes truly a tax, improperly raised without primary legislation? Suppose that the proposed maximum here of £6,000 were, not the £20,000 suggested last year but, say, £60,000 for estates over £20 million. What would we say? We know that £145 million is to be raised by this order for cross-subsidisation, but why only £145 million? The deficit in the service is something like £1 billion, so why should £500 million not be raised for cross-subsidisation?

Is the proposed schedule truly a schedule of fees or does it at some point, disguised as such, descend in reality into a schedule of taxes? That, I would suggest, is the question for your Lordships. I shall listen carefully to the Government’s arguments—indeed, to all the arguments. Only at the end of the debate shall I decide how to vote. I recognise that that may be regarded as a somewhat unusual approach in this House, but I have a certain nostalgia for my earlier occupation.

[Baroness Hamwee (LD)]

My Lords, I too declare an interest, as a solicitor. I have not practised for some time, so I will not hand out cards suggesting that colleagues consult my old firm. It was the suggestion about advances made by solicitors from their office accounts that consolidated my interest in this topic. However, I want to make a wider point and to ask one very specific question.

I believe that tax is a good thing. It is the price of a civilised society and so on but it must be transparent. It is a question of trust and honesty on the part of government. It is all part of the very topical but for ever issue of citizens’ trust in the Government and how that Government raise money. It is also part of joining up across departments and subject areas, and asking departments to look for their own income generation in the way that this proposal does. Income generation is important but it is not helpful if it is completely siloed.

The Minister refers to Section 180 of the Christmas tree Act, but I rather think that the public—I do not include the subset who understand the origin of the probate service and the family courts—would find it not immediately obvious that fees for the grant of probate should finance the court service generally. They might not say that they are doubtful about whether it is intra vires, but questions will be raised in their minds.

As I understand it, currently there is full recovery of the costs of the probate service. The Minister has referred to improvements to the service, and those must be welcome, but I believe that I have read somewhere that they will lead to savings, not costs, although I dare say that an initial investment is involved. As has been said, there is no option but to use the probate service, which adds to the question of whether one is paying for a service or paying a levy, and that perception is compounded by the administration being the same, regardless of the value of the estate.

My specific question is about Section 180. Subsection (3)(a) requires the Lord Chancellor to have regard to,

“the financial position of the courts and tribunals for which the Lord Chancellor is responsible, including … costs incurred by those courts and tribunals that are not being met by current fee income”.

The subsection goes on, joined by the word “and”, to paragraph (b), which states that the Lord Chancellor must also have regard to,

“the competitiveness of the legal services market”.

I do not believe that there is a market in grants of probate administration. I will be grateful if the Minister can explain to the House how that provision has been considered, what regard the Lord Chancellor has had to the competitiveness of the legal services market and what conclusion the Lord Chancellor has reached.

[Baroness Browning (Con)]

My Lords, I agree with much of what has been said this afternoon. In my mind, this enhanced fee is a death tax, and I should like to take this opportunity to shine a light on what, in practical terms, this will mean for a particular group of people—the people in the middle. It is always the people in the middle whom one has to pay attention to. Clearly, it is a very good thing if people at one end of the scale are taken out of the tax or fee altogether, and I suspect that there will not be a lot of sympathy for those with multimillion pound estates having to pay an additional 0.5% charge. However, we should look at how the scale has changed for an estate of about £500,000. At £500,001 the fee goes up from £215 to £2,500, which is quite a considerable hike. Who are these people with estates of, say, £500,000, who will be subject to this fee? What do they look like? What sorts of lives do they lead? That is a lot of money.

We know from the Lord Chancellor’s briefing to us that about 25% of an average estate is in cash or liquid assets. We can assume that on a £500,000 estate, £125,000 would be in cash or investments—money saved over a lifetime, perhaps some capital taken from a pension after a hard-working life—and a family home of some £375,000. Across the country, that would be regarded as a fairly modest estate. In fact, only a few years ago people were throwing up their hands in horror that those who had bought their council houses were now subject to inheritance tax.

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, there are two aspects to this debate. There is the suggestion that these regulations are unconstitutional, which the noble Lord, Lord Marks, has argued, and there is the argument as to whether this is fair, the point made by the noble Baroness, Lady Browning, and the noble Lord, Lord Beecham.

When the noble Lord, Lord Marks, tells the House that something is of constitutional importance, I normally get excited and follow him eagerly into the Division Lobby—but I cannot do so today. These regulations are not ultra vires but plainly valid and within the scope of what the House approved in Section 180 of the Anti-social Behaviour, Crime and Policing Act 2014. The point of that provision was to confer power on the Lord Chancellor to charge fees which are higher than the cost of the services being provided.

Section 180(1) states the Lord Chancellor may,

“prescribe a fee of an amount which is intended to exceed the cost of anything in respect of which the fee is charged”.


It could not be clearer. The noble Lord, Lord Marks, then says that one part of the courts system cannot be used, even under that provision, to act as a cross-subsidy for another part of the courts system. My answer is look at Section 180(3), which says that the Lord Chancellor, when he sets these charges, must have regard to,

“the financial position of the courts and tribunals for which the Lord Chancellor is responsible”—


in the plural. It is general, not specific. And if there is any doubt about that, look at Section 180(6), which adds what the purpose of the fees must be. The fees,

“must be used to finance an efficient and effective system of courts and tribunals”.


The whole purpose of these provisions as I understand them is to confer a power on the Lord Chancellor to charge a fee higher than the cost of a service, in order precisely to provide funds that will enable the courts and tribunals system in general to be financed. There is no question of a lack of validity in these regulations.

It is then said that this is unfair; the noble Baroness made a powerful speech. But let us be realistic. Lawyers—and non-lawyers as well—have been complaining with increasing power and force in recent years that the legal system is in desperate need of additional resources. We need more money for legal aid, for improvements to the courts estate—which is in a disgraceful condition—and for improved judicial salaries to ensure that the high quality of our judiciary is retained. That money has to come from somewhere—and the choice is very simple.

Of course you could raise general taxation, but the same people about whom the noble Baroness, Lady Browning, is rightly concerned would equally complain if their taxes were raised. The money is needed; the legal system—the courts and tribunals which the Lord Chancellor has to protect—are in a desperate position. The money is desperately needed. I am no more enthusiastic about these regulations than other noble Lords, but it seems to me that, given the problems we face, these regulations do impose a charge which is reasonable in its content and is a reasonable means of raising some of the revenue required to fund the courts and tribunals system of this country.

[Baroness Hamwee]

The noble Lord has construed parts of Section 180; I think he has got it in front of him because he has been reading from it. My question about Section 180(3)(b) was addressed to the Minister, but the House respects the noble Lord and I wonder whether he has views about the Lord Chancellor having to have regard to the competitiveness of the legal services market in this situation.

[Lord Pannick]

I am grateful to the noble Baroness for her observation. My answer to the noble Baroness is that, yes, the Lord Chancellor is obliged to have regard to,

“the competitiveness of the legal services market”,


but I understand that to apply only in a context where there is a competitive market. Of course, in many contexts there is. But, like the noble Baroness, I do not understand there to be a competitive market for probate, and in my judgment that provision does not require the Lord Chancellor to have regard to a factor which is simply not relevant to the topic we are discussing.

European Union (Withdrawal) Bill

Baroness Hamwee Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Adonis]

My Lords, Amendments 160 and 170 are in my name and they would prevent regulations being made under Clause 9 if they,

“remove, reduce or … amend the rights of”,

an EU citizen,

“lawfully resident in the United Kingdom on any day before 30 March 2019”,

or until such time as Her Majesty’s Government have signed a reciprocal agreement with the European Union on the rights of citizens post-March 2019.

The issue here is simple. It is about giving legal effect to the assurance, which the Prime Minister has repeatedly given since Article 50 was invoked, that the rights of European citizens who are currently resident in the United Kingdom will be respected. The Prime Minister said in her October 2017 email to EU citizens not only, “I couldn’t be clearer”—actually, most of the Prime Minister’s statements which are not clear begin with “I want to be clear that”. She said she could not be clearer that,

“EU citizens … lawfully in the UK … will be able to stay”.

She also said:

“When we started this process, some accused us of treating EU nationals as bargaining chips. Nothing could have been further from the truth”.


If nothing could be further from the truth, why has Parliament not been invited by the Government immediately to give legal effect to the rights of EU citizens resident in this country? It is a very simple issue. The reason why it has not happened is precisely that the Government do want to use EU citizens as bargaining chips. Saying that they do not, when all the evidence is that they do, does not, I am afraid, cut the mustard at all.

The noble Baroness, Lady Ludford, also raised a crucial issue, which I hope the Minister will address. What is to happen to EU citizens who come here during the transition? We all know what the Minister will say: that it all depends upon the agreement. When the Prime Minister brings that agreement down with her tablets of stone, whether that happens in October, November, December or January, it will have to include a precise set of legal commitments on what is to happen in the transition. The only point I make in respect of that, which I hope the Minister might address in his remarks, draws very much on what the noble Lord, Lord Roberts of Llandudno, and the noble Earl, Lord Clancarty, said: that this is a really shabby way of presenting this country abroad.

Let us be clear. People across the world, including people whom we want to work in our National Health Service and make a big contribution to this country, are having to make decisions as we deliberate on whether they can come to this country from the end of March next year. Quite soon, that will be a matter not of months but of days in which they will have to make these decisions.

I am sure that the noble and learned Lord will claim that we are open and that we welcome them coming here. The noble Baroness, Lady Jones of Moulsecoomb, made what I thought was an excellent speech in favour of remaining in the European Union because we would embrace all the rights set out in the treaties. How is it that we can look at people straight and say to them, “This is a great place to come and live. We are going to maintain your rights, but even now, we are not prepared to tell you what those rights will be in a year’s time”? This country is presenting a terrible face to the world. Frankly, I am ashamed of the position our Parliament is adopting towards the rights of existing EU citizens, who still do not have those rights enshrined in law, and of those we are seeking to attract to this country from the end of next March.

As the whole Brexit project starts to disintegrate, nothing is undermining its moral foundations more than our inability as a Parliament—and, indeed, the noble and learned Lord’s Government—to give firm legal undertakings in respect of people who are resident in this country and came here in good faith.

[Baroness Hamwee (LD)]

My Lords, does the noble Lord agree that the issue is important not only to those who might be thinking of coming here, but to the people living here now? It is perfectly clear that their confidence has been undermined and they are showing that by voting with their feet. They are leaving jobs which are important to the whole of our society. The longer this debate goes on, having started from a position of, “Let us be clear: no rights will be taken away”, the less confident many people feel about their future.

Before I finish, perhaps I may say that I am grateful to the noble Lord, Lord Cormack, who also got off my chest a lot of the things I feel about this issue.

[Lord Adonis]

Perhaps I may respond to the noble Baroness and make one further brief point. The noble and learned Lord, Lord Mackay of Clashfern, said that we should be proud of our courts and the work they do. I entirely agree with him; however, we are told time and again—indeed, it is part of the argument for Brexit—that our courts are of course subservient to Parliament. They implement and give judgments on the laws that are passed by Parliament, which has still not guaranteed the rights of European Union citizens resident in this country. Moreover, because it is not being invited to do so by the Government, at the moment it will not make any declaration about those rights after the end of March next year. That, I believe, is shameful.

Prisons: Women

Baroness Hamwee Excerpts

Monday 5th March 2018 Lords Chamber

[Lord Keen of Elie]

I am not in a position to give specific figures in response to the question from the noble Baroness, but I will undertake to write if they are available and I will place a copy of the letter in the Library.

[Baroness Hamwee (LD)]

My Lords, the noble and learned Lord has mentioned mother and baby units. Am I right in thinking that those are units for newborn and very young babies? The noble and learned Lord, Lord Woolf, referred to older children and the importance of maintaining family connections beyond the age of six months or so.

[Lord Keen of Elie]

My Lords, I fully acknowledge that, which is why I added the addendum with regard to the number of mother and baby units because contact at that stage is also very important. Clearly we understand the need for contact between female offenders and their families in general.

European Union (Withdrawal) Bill

Baroness Hamwee Excerpts

Committee: 2nd sitting (Hansard - continued): House of Lords
Monday 26th February 2018 Lords Chamber

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

My Lords, if I appear faint in my defence of the Bill it is due to a lack of food rather than a lack of enthusiasm. I am grateful for the opportunity to respond to this important debate and set out the Government’s position. I will start by making it clear that we are listening carefully to the debates on this issue, and will continue to do so.

The Government agree that protecting our rights and liberties as we leave the EU is of critical importance and it is only right that every detail of our approach is scrutinised. This has been a wide-ranging debate about human rights after exit, but it is worth remembering that the amendments before us relate specifically to the charter and the question of what role, if any, it should have in domestic law when we are no longer a member of the EU.

I maintain that the approach in the Bill to the charter as a document is absolutely right, and that the Bill in this respect is in no need of improvement. However, as many noble Lords have pointed out, that approach cannot be separated from the Bill’s approach to the general principles of EU law, including fundamental rights. In response to the strength of feeling conveyed not just in this House but in the other place, the Government are looking again at these issues. These are highly technical issues in some respects but they are undoubtedly important, so we will look further at whether this part of the Bill can be improved in keeping with some of the concerns that have been expressed. Indeed, my noble friend Lord Lamont referred to an observation made by the Secretary of State himself that, if there were specific examples of rights which were not otherwise covered, we would examine them to ensure that the rights were not lost. However, that is not the case. On the specific question of whether the charter should be kept, our view remains that not incorporating the charter into UK law should not in itself affect the substantive rights from which individuals already benefit in the United Kingdom. This is because the charter was never the source of those rights.

The noble and learned Lord, Lord Goldsmith, anticipated that he might be reminded of his previous remarks on the matter, and I see no reason to disappoint him. In 2008, when this House debated the then European Union (Amendment) Bill, he was absolutely clear that,

“the charter was never intended to be applied directly to member states in dealing with those matters that member states have the competence to deal with. It was always intended to constrain the European Union institutions … the United Kingdom’s position, like my position, has always been that the charter affirms existing rights, it does not create any new justiciable rights in any member state and does not extend the power of the courts. Moreover, in many cases the charter rights are based on national laws and practices and so they must mirror the extent and content of those national”,—[Official Report, 9/6/08; cols. 426-27.]

laws.

The noble and learned Lord observed that he had nevertheless then encountered the incorporation of the charter into the Lisbon treaty in 2009. Perhaps that was a game changer. I remind him of his evidence to the European Scrutiny Committee in 2014. At that time he referred back to his previous statements and publications with regard to the charter and went on to say that, as he had there explained, the fundamental point was to provide a clear and accessible statement of existing rights and therefore constraints on the power of the EU to legislate.

As the noble and learned Lord’s previous remarks help to make clear, the charter is only one of the elements of the UK’s existing human rights architecture. It reaffirms rights and principles that exist elsewhere in the EU acquis, irrespective of the charter, and the Bill sets out how those rights and principles will continue to be protected in UK law after exit.

The noble and learned Lord referred to a number of issues, such as the case of Benkharbouche in 2017 in the Supreme Court. In that case the court found that there was a breach of Article 6 of the convention but it also referred to Article 47 of the charter in the context not of rights but of remedies. One has to bear in mind the distinction between rights and remedies.

The noble and learned Lord posed three questions in the context of previous observations about the charter. First, he talked about there being no loss of substantial protection. It is inevitable that leaving the EU will result in changes to the current arrangements, but certainly we do not accept that this in itself will result in a loss of substantive rights.

Secondly, he referred to the procedural protections that will be excluded. When we leave the EU, a person can still rely on sources that are reaffirmed in the charter. I emphasise “reaffirmed in the charter”, as he himself observed in 2008 and 2014. Procedurally there may be differences but we do not consider that that can be a basis for incorporating the charter into domestic law. Indeed, we absolutely stand by what has been said by the Prime Minister: it is not necessary to retain the charter to ensure that rights are protected.

The noble and learned Lord also referred to the body of the charter, beginning with Article 1, and suggested that these rights were contained only in the charter. I simply observe that on 5 December last year the Government published a very detailed paper setting out, as it were, a comparison of the rights in the charter and where they can be found elsewhere—in the convention, in the principles of EU law and in our own common law. The noble and learned Lord referred to Article 1, which concerns the right to human dignity. I remind him that there is a long series of case law both from the ECJ, as it then was, and from the European Court of Human Rights going back to 1995 in which, for example, the convention court emphasised that the very essence of the convention is respect for human dignity and human freedom. That has been repeated in a whole series of cases since then. These are well-established rights and they were well established when they were brought together into the charter.

I want to reassure noble Lords that substantive rights protected in the charter are, and will continue to be, protected elsewhere in UK law after we leave the EU, most notably in convention rights, in retained EU law, in the common law and via specific statutory protections such as those in our own equalities legislation. I have already mentioned that the Government published a detailed analysis providing guidance about how substantive rights found in the charter would be reflected in domestic law after exit.

Reference has been made to various legal opinions and that of Jason Coppel QC, who has had a number of name checks this evening. I can only implore noble Lords to look at the very detailed analysis the Government have produced. I also note that some of the references to Mr Coppel’s opinion involve references to his concern that Ministers might change rights, for example, or that the procedures will be affected. However, that is not to say that the fundamental rights underlying the charter are not found elsewhere.

[Baroness Hamwee (LD)]

My Lords, the noble and learned Lord quite rightly draws our attention to the distinction between rights and remedies, but he will agree that rights are not helpful unless there are remedies. If we were scrutinising the charter and the source of its rights to establish whether we were satisfied that the rights and remedies could still apply, we might, for instance, have noted that the sources of Article 1 mentioned in the analysis would not confer an enforceable right on individuals after exit day. That is the JCHR’s analysis of the analysis.

I hope that the Minister can answer the question asked, in particular, by the noble Lords, Lord Pannick and Lord Kerslake, about why we have combined the two debates—one about the charter, its rights and wrongs and whether it is good or bad, and the other about the mechanisms. We have heard so often from the Government Front Bench that this Bill is about mechanisms. Why are the Government not using the mechanism they have themselves designed to give them the opportunity, and to give the Committee the opportunity, to consider the substance calmly after the chimes of midnight?

Guardianship (Missing Persons) Bill

Baroness Hamwee Excerpts

2nd reading (Hansard): House of Lords
Thursday 6th April 2017 Lords Chamber

Moved by

[Baroness Hamwee]

That the Bill be now read a second time.

[Baroness Hamwee (LD)]

My Lords, I have made space for this Bill by withdrawing the previous one. The penny dropped for me about the difficulties of a missing person’s property effectively being left ownerless when I heard the father of a woman who was missing explain the problems. He has heard me say this before, but he is a solicitor and must know how to handle bureaucracy, so this is a real problem. Peter Lawrence—that solicitor and father—is listening to today’s debates and he represents not only himself and his daughter Claudia, because the focus of the Bill is the missing person, but also the families of the many adults reported missing. There are more than 80,000 of them a year in Britain, of whom about 1,500 are missing for more than one year.

It is normal at the end of the passage of a Bill to thank those involved. I hope I am not tempting fate, but in the hope that we may find ourselves without further substantive debate I want to thank now all the families and others who have recounted their experiences, which cannot have been easy. I thank the charity Missing People, current and previous staff of which have campaigned on this issue since, I think, 2008. I declare an interest as a member of the charity’s policy and research advisory group. I thank the Minister and his predecessor, the noble Lord, Lord Faulks, and the MoJ officials who have understood the need for legislation, even if they could not do more than keep it warm for a couple of years—I particularly thank Paul Hughes there. I thank Clifford Chance, the pro bono solicitors to the charity Missing People, particularly Patricia Barratt, who drafted the Bill that I have just withdrawn, the effect of which would have been essentially the same as that of this Bill. I also thank Kevin Hollinrake, who took the Bill through the Commons.

I know that there are noble Lords who had hoped to speak today to support the Bill, but the timing has been a little awkward. In particular, I refer to the noble Lord, Lord Kirkhope of Harrogate, and my noble friend Lady Kramer, whose Presumption of Death Act 2013 dealt with another not unrelated provision.

The words of people affected by the problems that the Bill seeks to address are more effective than mine:

“When your loved one is missing you fall into a hole. There isn’t an official category for ‘missing’. Organisations don’t know what to do or how to deal with your situation”.


The creation of the new status of guardian of the property and affairs of a missing person is to fill a gap in the law of England and Wales. The guardian will be in a position not unlike a donee of a power of attorney, and the Bill draws on some of the provisions of the Mental Capacity Act. A person is missing for the purposes of the Bill if his or her whereabouts are unknown for more than 90 days—fewer in the case of urgency—or, much more unusually, if he cannot make or communicate decisions, for instance if he is held hostage or kidnapped.

The court will determine whether the applicant for an order of appointment has a sufficient interest to make the application, though certain people, including close family, have an automatic right to apply and interested persons must be notified so they can join in the application. The guardian may be the person applying; it could be an individual, a corporation or a professional person; and the guardian may be remunerated and be repaid expenses. Whoever the guardian is, there must be no conflict of interest. The appointment may be for up to four years, which is expendable, but terminates when the person returns or is declared dead. As one would expect, there are provisions for the guardian to be held to account and supervised, in this case by the Office of the Public Guardian and ultimately by the court.

What can a guardian do? Everything that the missing person has the right and power to do in relation to his property or financial affairs, subject to any limitations in the court order. He cannot make a will for the missing person or act as trustee. Again, as you would expect, it is a fiduciary position. Crucially, the appointment of the guardian must be, as I have said, in the best interests of the missing person. Clause 18 sets out how that is to be determined.

These interests will often coincide with the interests of families and, naturally, it is the experiences of that situation which are related by families. Very often, their experiences are ones which one might not have begun to imagine before beginning to think seriously about the situation. For example, a missing person’s salary is not coming in, but mortgage payments and other standing orders and direct debits go out of that person’s bank account. The bank will not make transfers between accounts to keep up the mortgage when the usual account, the usual source of the payments, is depleted. You are not entitled to sell the family home, but you may be threatened with foreclosure. Rent, if the property is rented, goes into a black hole.

And how do you deal with benefits? A mother maintains her son’s house out of her money to prevent it becoming derelict and says:

“I used to put the heating on in the winter, but I can’t afford to do that anymore”.


A sister says:

“We were stuck. We couldn’t use any of”,


my brother’s,

“money to pay his bills and at the same time we could not cancel his bills”.

All the people whose experiences have been related to me by the organisation Missing People have said that guardianship would be an enormous help and would mean that the person’s affairs could be dealt with.

Financial institutions can take instructions only from the signatory to a bank account, and so on. Many will not give families information, because of “data protection”—I put that in quotes, because that is how it is put. Some simply do not know what to do; some will not even take phone calls; some will not take phone calls but are rather quick on the draw when the money in the account runs out. One person said:

“one day I received a telephone call from the bank to say his account was overdrawn and what did I plan to do about it. I was so angry. I had contacted them so many times to try and sort the situation out but they wouldn’t engage with me”.

The Council of Mortgage Lenders and—from memory, so I hope I am not wrong in this—the British Bankers’ Association support the legislation, as it will provide clarity and protection for businesses and institutions which hold the assets of a missing person. The Association of British Insurers has also said that its members would welcome guidance because of data protection issues.

The Government consulted in 2014 on proposals for creating this new legal status. According to the MoJ, the response was “overwhelmingly positive” to the principle and to the proposals for implementation. Because the Government had not found an opportunity to introduce legislation, I introduced a Private Member’s Bill at the start of this Session. We now have this Bill, which has come through the Commons, piloted by Kevin Hollinrake, and I am delighted that a slot has been found as we come towards the end of the Session. The Bill reflects the proposals in the consultation to which I have referred.

Once you see the practical impact of the current legal position, you begin to understand the emotional effect. “I went overnight”, a wife explains,

“from being a couple and having two wages to … becoming a single mum who could only work part time, with a mortgage and bills to pay. … my husband was missing, and that in itself was traumatic enough, but there was still the everyday living to do as well”.

We legislators can at least help with the everyday living. I beg to move.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I am grateful to the noble and learned Lord and the noble Baroness. The hard work is done outside this place by officials and campaigners. In this situation, campaigners are not just people who stand up and shout; they provide material on which we can work.

The noble and learned Lord answered a question which I thought it might seem a little grudging to ask, which was how soon the Bill might come into effect. I am glad to hear what he said.

I thank everyone for being so positive about what is a very negative experience for those whom we are trying to assist. I hope that the House will give the Bill a Second Reading.

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

Digital Economy Bill

Baroness Hamwee Excerpts

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

Moved by

[Baroness Hamwee]

25YX: Clause 31, page 30, line 22, after “person” insert “to the extent the disclosure is necessary and proportionate”

[Baroness Hamwee (LD)]

My Lords, on behalf of my noble friend Lord Clement-Jones and myself I beg to move Amendment 25YX and will speak to the other amendments in this group, which are all about limiting disclosure—but, I want to stress, limiting it in what we regard as an appropriate way, accepting that there are benefits in information sharing but perhaps with more of an eye to privacy considerations than are in the Bill.

The first of the amendments would provide that disclosure of information should be only to the extent necessary and proportionate in connection with public service delivery. This is both because we regard “no more disclosure than is necessary and proportionate” as being important but also, in this context, because disclosure goes outside and beyond public authorities. We have tabled similar amendments to clauses dealing with debt, fraud and research.

In evidence to the Public Bill Committee, the Information Commissioner wrote:

“Proportionality and necessity are key to ensuring data sharing complies with data protection and human rights law”,


and that,

“the Bill does not directly correlate with these concepts”.

Our amendments would put these notions in the Bill. The ICO also commented on bulk data sharing. She wrote:

“As more data is shared ever more widely … big data analytics are used in complex and unexpected ways”.


Our Amendment 28CB would require the civil registration official to be satisfied that disclosure is proportionate to the recipient’s requirement.

Bulk data sharing is so significant that we think it should be reviewed after three years. Amendment 28CF refers particularly to the review covering public attitudes, the use of the powers, the availability of alternative mechanisms, and security considerations.

Amendment 26A takes us to a point that I raised in Committee. We would like to understand what is meant by individuals’ and households’ contribution to society in the context of improving their well-being. This is a condition for disclosure. What is additional in this phrase to the health and social and economic well-being provided for elsewhere in the clause? The expression is paternalistic and judgmental—and, probably more importantly for this purpose, it suggests a concern more for an advantage to society than to the individual or household. That goes against the thrust of the data sharing for public services, which is framed as being for the benefit of individuals and households.

We are also concerned that the exceptions to the protections include the prevention of anti-social behaviour. In Committee, the Minister said that people have a right to be protected against such behaviour. We would not argue against that, but “balance” is a term often used from that Dispatch Box and we think that the balance here is right out of kilter. Protection against anti-social behaviour is very different from protection against serious physical harm and so on. By definition—the definition being that there is a provision elsewhere—anti-social behaviour is not criminal behaviour.

The Government have explained this, as I said at the previous stage, but we do not believe that they have justified it. Nor have they justified exceptions for any crime, which is why our amendments would limit crime here to serious crime, which we have defined using the definition used in the Investigatory Powers Act. I have to say that not a lot of Clause 36 would fall within the DPA “vital interests” provision.

Next, in Committee we asked about the use of the definition of personal information rather than building on the DPA’s personal data. The Minister told the Committee that to the extent that personal information is not governed by the DPA,

“we still expect that information will be handled in accordance with that framework because of the requirements of the codes of practice”.—[Official Report, 6/2/17; col. 1259.]

Indeed, it would be the codes of practice, not the statute. Our Amendment 28AU is an opportunity for the Minister to answer the Information Commissioner’s observation that there is a gap here. There are compensatory safeguards under the DPA—they apply under the DPA but seem not to apply under the Bill.

We remain concerned that an individual whose information is disclosed should be informed. My noble friend Lady Janke referred to the transparency that is necessary for public trust in the process. I completely agree with that. The Minister was concerned that, if a fraud were being investigated, you would not go out and tell the alleged fraudster what you were doing. I hope that the amendment answers that point, because it is a relatively narrow situation that should not preclude doing what is right more generally.

Amendment 28BM has been tabled to seek an explanation of Clause 40(4), in particular its wording,

“similar to that made by section 38”.

Clause 38 gives powers to HMRC and, as I read it, HMRC will have powers to lift restrictions on disclosure. So, under Clause 40, does this mean that a specified person has a power to lift the restrictions? That does not seem right to me. I have undoubtedly misunderstood it—but, if I have done so, perhaps one or two other people would misunderstand it, too.

Amendment 39 is rather different: a sunrise clause—it could have been a sunset—to explore further how all this fits with the new rules that will come into effect in May 2018, when we will still be in the EU, under the EU general data protection regulation and the law enforcement directive. The GDPR will strengthen provisions on processing only the minimum data, on privacy notices with explicit requirements for data protection by design and default, and on data protection impact assessments.

We were assured in Committee that Part 5 is “compatible”—that was the word used—with the GDPR. Thinking about that afterwards, I wondered whether that meant that Part 5 was not inconsistent but possibly not as wide as the GDPR. We were told:

“When the regulation comes into direct force, we”—


that is, the Government—

“will look at the provisions of the Act and the codes of practice to ensure that they are consistent with it”.—[Official Report, 6/2/17; col. 1490.]

Given that there will be a need to share certain data with other EU states after the date when we leave, how will all this be done? I hope that the Minister can share with the House the Government’s proposals for checking that there is more than just consistency and that, more particularly, nothing is left out. I beg to move.

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

My Lords, I am obliged to the noble Baroness, Lady Hamwee. Amendment 25YX and the related Amendments 28CB, 28CG, 28DV and 28FD seek to impose an express requirement that the public service delivery power may be used to share information only to the extent that it is necessary and proportionate to do so. That covers the changes to debt fraud research and similar civil registration provisions in the Bill. With respect, the amendments are unnecessary as the powers will need to be exercised in line with the Data Protection Act and the codes of practice, which already require that only the minimum data necessary to fulfil the particular objective may be shared. It is therefore unnecessary to amend in accordance with this proposal.

The effect of Amendment 25YYD would be that the list of specified persons permitted to use the public service delivery power could be amended only to add or remove bodies. The removal of the word “modify” would affect the way that minor amendments could be made. I do not believe that the noble Baroness, Lady Hamwee, expressly referred to this amendment, but as it is listed in this group as her amendment I just mention the point because clearly it is necessary that there should be a degree of flexibility in how that provision operates.

[Baroness Hamwee]

I apologise; I thought that was in another group, though I received a note later. I would like to understand how extensive a modification might be.

[Lord Keen of Elie]

I am obliged to the noble Baroness. I am happy to explain within this group, where I understand the amendment remains. The removal of the word “modify” would affect the way in which minor amendments could be made. For example, where a body changes its name or the description of the category of a body needs to be adjusted, you would then want to modify rather than delete and start again.

Amendment 26A seeks to remove reference to,

“the contribution made by individuals or households to society”,

from the public service delivery chapter. Again, I venture that the amendment is unnecessary because subsection (10) gives examples of “well-being” but does not provide an exhaustive list. Therefore we have three categories by way of example—but only by way of example. In response to the specific observation made by the noble Baroness, Lady Hamwee, I respectfully suggest that there is nothing paternalistic or judgmental about any of the examples given in the Bill. Indeed, where a party makes a contribution to society, that benefits the contributor as well as society, which is why it is appropriate that it should be given as an example in this context.

Amendment 28AU would provide a new definition of “personal information” for the purposes of the public service delivery power. This point was raised in Committee as well. The amendment expressly incorporates the definition of “personal data” under the Data Protection Act 1998 into the definition of personal information for the purposes of these powers, as well as making clear that the Bill’s extended definition also includes deceased individuals and companies. We consider that the existing provisions set out the same position, albeit in slightly different words. I note that reference was made to the issue in Committee, and to the provision of codes of practice in that context.

The intention of Amendment 28AY seems to be to provide greater transparency by ensuring that individuals would know when information about them has been shared. Existing provisions in the Bill already require those using the powers to comply with Data Protection Act requirements as to the information that people are given about the usage of their personal data. This, supplemented by the requirements imposed by applicable codes of practice, ensures that the use of these powers will be as transparent as it can be.

Amendments 28AR and related amendments seek to narrow the exceptions to the general rule in Clause 36(1) that personal information received under the public service delivery powers may be used only for the purpose for which it was shared, to the effect that such information may not be shared for the purpose of preventing anti-social behaviour, and to restrict the exception permitting disclosure for the purpose of preventing or detecting crime to “serious” crime, as indicated by the noble Baroness. These amendments would also bring in an offence of disclosing personal information for the purposes of anti-social behaviour. The prevention of anti-social behaviour and the prevention or detection of crime are matters of significant public interest. If information sharing indicates potential criminal activity, public authorities should be able to take action. Similarly, if information received under the powers indicates that anti-social behaviour is occurring or is likely, we consider that this information should be disclosable to maintain public order. Anti-social behaviour may itself be seriously harmful to those who become its victims.

Amendment 28BM seeks to remove the power given by Clause 40(4), which allows regulations to make disclosures by newly specified persons subject to the same conditions that apply to disclosures of information provided by HMRC. That power would be used to require the consent of the original provider to any subsequent disclosures of particularly sensitive information, as is the case for information provided by HMRC under Clause 38. The amendment is undesirable, as it would remove flexibility to give enhanced protection to information from certain sources. I do not believe the noble Baroness read the provision in that form, but it is there so that enhanced protection may be given in a particular circumstance.

Amendment 28CF would impose a duty on the Secretary of State to review the civil registration power after three years, akin to the powers already provided in the debt and fraud powers. This duty was included in the debt and fraud powers to assess whether the powers deliver demonstrable benefit via an initial piloting process. The information gathered in the course of the pilot process will provide evidence for the review. It is our view that a similar duty to review the civil registration power would not be appropriate. First, civil registration information is already a matter of public record. Secondly, the powers are simply looking to update outmoded legislation to simplify and provide the flexibility to share civil registration data within the public sector to avoid the need to enact specific powers whenever a new need arises. The power has been developed to support a range of public authorities at national and local government level to transform the services that they can provide to citizens.

Finally, Amendment 39 is intended to ensure that Part 5 could not be brought into force until after the GDPR comes into effect, which would be in May 2018. This would prevent the use of the powers until that date, which would be unhelpful given that a number of bodies are keen to use the powers to achieve particular objectives, such as extending the warm home discount scheme. As we have said before, we consider that the present provisions are compatible with the GDPR—compliant, therefore, in that context—and we are committed to revisiting the codes of practice before May 2018 to ensure that they reflect the latest best practice of compliance with the GDPR.

In those circumstances, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, I thank the Minister, but all that will bear some reading. We felt it important to extend some of the comments that we made in Committee to get a more extended response. Noble Lords will be pleased to know that I shall not respond to all those points. On the Minister’s first point about “necessary or proportionate”, I do not know whether he means that I misread the ICO’s comments, that the Government disagree with the ICO, or whether some of the changes to the Bill since its initial form have dealt with them. Perhaps I should just leave that hanging.

The fact that the “contribution to society” is an example does not answer our concerns. I remain anxious about it, as I do about “anti-social behaviour”, which the Minister described as being a matter of significant public interest. I do not dispute that, but data sharing is a matter of significant public interest—I suggest, possibly greater. We are told that anti-social behaviour may be seriously harmful, but it is not criminal in this context, because we have other provisions to deal with crime.

I was indeed confused about the application of the HMRC powers to other bodies, and I remain confused about whether that extension is appropriate.

Finally, of course civil registration information is a matter of public record, but the updating takes us into a very different regime. The ability to share information in bulk is very different from that to look up individual pieces of information. Can the Minister tell the House today whether the consultation to which he referred extended beyond the sharing organisations to the sort of bodies concerned with privacy? He may not know, and I may be quite out of order in asking this on Report. I do not think he is going to leap to his feet—pause—no, he is not. I do not hold that against him. It is probably not in his brief. If there was not such consultation, that answers my point.

However, clearly, I should beg leave to withdraw the amendment.

Amendment 25YX withdrawn.

--- Later in debate ---

[Lord Hunt of Wirral (Con)]

I declare my interest as a partner in the global law firm DAC Beachcroft, and other interests set out in the register, including chairing the British Insurance Brokers’ Association and being president of the All-Party Parliamentary Group on Occupational Safety and Health. Taken at face value, Amendment 28FY would appear somewhat technical, but the Employers’ Liability Tracing Office is working well, but it could work better, and this amendment would help to facilitate that.

I am so grateful to the Minister and his colleagues for the support that they have given to this amendment, which could make a substantial difference to the capacity of the office to help to secure compensation, expeditiously and effectively, for those afflicted by industrial illnesses. When someone faces a reduced quality of life and possibly an avoidably and unnecessarily early death because of an industrial illness innocently contracted, the least that we can do is to deliver compensation as quickly as possible in the hope that the individual with the illness can enjoy at least some benefit from it. I believe that in some small way the amendment will serve to make this a more civilised and compassionate country.

[Baroness Hamwee]

My Lords, we have two amendments in this group. The Minister was just a little previous in answering Amendment 25YYD on modification, so we do not need to go back to that. Amendment 33ZYD would remove several organisations from the list of specified persons for the purposes of fraud provisions, and the amendment is here to enable us to ask whether all these require the data-sharing gateway or, conversely, whether there are many other government-related organisations; I am not quite sure what the correct term might be for organisations such as the National Lottery or the British Council, but I shall use the term government-related organisations tonight. Are there not others that might use the power? What were the criteria used to select the ones that are in the schedule?

[Lord Keen of Elie]

I am obliged to my noble friend Lord Hunt and note what he said with regard to the amendment. On the amendment proposed by the noble Baroness, Lady Hamwee, Amendment 33ZYD, which seeks to remove a number of non-departmental public bodies listed in the schedule for the fraud power, I accept that the list in the schedule is long but the fact is that many public authorities are at serious risk of fraud. Each of the bodies was considered individually before being added to the schedule, and the NDPBs have been included because they each administer many millions of pounds in grant expenditure each year, which exposes them to a significant risk of fraud.

[Baroness Hamwee]

Were any organisations considered and discarded for that purpose?

[Lord Keen of Elie]

I am not in a position to say what number of bodies were considered and discarded, but I will undertake to write to the noble Baroness on that point. All the public bodies included in the schedule must, of course, comply with the data-sharing safeguards in the Bill. Clearly, public authorities may not enter into data sharing lightly. They will have to follow the codes of practice, comply with the Information Commissioner’s requirements on data sharing and privacy and have in place all necessary protections to prevent unlawful disclosure.

The list of public bodies in the government amendments is shorter than the lists we have previously published in draft regulations although, as I indicated to the noble Baroness a moment ago, I do not know how many bodies were considered and removed before the process of listing them in the draft regulations took place. Care has been given to ensuring that we share only where there is a clear benefit, as required by the legislation. I hope that, with that explanation, the noble Baroness will withdraw her amendment.

--- Later in debate ---

Moved by

[Baroness Hamwee]

25YYG: Clause 31, page 30, line 40, leave out “had regard to” and insert “complied with”

[Baroness Hamwee]

My Lords, the published groupings include Amendment 28CY, which should not have been tabled. I apologise to the House; it was a hangover from drafting before the Government tabled their amendments, which we have just dealt with, in response to the Delegated Powers and Regulatory Reform Committee. I will not be speaking to it and am sorry for the confusion. Similarly, Amendment 28CUA, published on the supplementary list, should not have been tabled—it was drafted a while ago but somebody panicked late on Friday afternoon and thought it had better be published.

--- Later in debate ---

[Lord Keen of Elie]

I thank noble Lords for their observations on these matters. There are of course government amendments in this group as well and perhaps I may begin with those.

This group of amendments concerns the codes of practice issued under Part 5 and those issued by the Information Commissioner’s Office. It includes the government amendments that implement the recommendations of the Delegated Powers and Regulatory Reform Committee and, as the noble Lord, Lord Collins, observed, the recommendations of the Information Commissioner’s Office. In addition, there are some opposition amendments on similar points.

We have already published draft codes of practice on data sharing. The Delegated Powers and Regulatory Reform Committee recommended that the first codes of practice and the UK Statistics Authority’s statement of principles should be laid before Parliament in draft and should not be brought into force until they had been approved under the affirmative procedure. Revisions were to follow the draft negative procedure. We agree and have tabled amendments to achieve this, and it is intended that Parliament should have a suitable opportunity to consider these drafts and any amendments thereto in due course.

A further series of government amendments will require persons disclosing personal information under relevant chapters of Part 5 to have regard to the Information Commissioner’s codes of practice on privacy impact assessments and privacy notices, transparency and control in so far as they apply to information which is being shared. As the noble Lord, Lord Collins, observed, the Information Commissioner called for explicit reference to these two codes to be made on the face of the Bill. We have worked with her office to develop these amendments, which supplement the existing requirement that the codes of practice prepared under the Bill must be consistent with the commissioner’s own code on data sharing, and I understand that she is satisfied with the steps we have taken in that regard. I hope that this will provide further assurance to noble Lords that we are committed to ensuring that best practice concerning compliance with data protection and transparency will be applied to the exercise of powers under Part 5 of the Bill.

I now turn to the opposition amendments in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Clement-Jones. I hope I can persuade them that their amendments are no longer necessary, as the government amendments fully address the concerns of both the Information Commissioner’s Office and the DPRRC.

As the noble Baroness has explained, the amendments in their names seek to ensure further consistency with the ICO’s codes and to strengthen the role of those codes in the regime set up by Part 5, as well as providing for greater parliamentary oversight of the Government’s codes, and I believe that we are now there. The Bill already requires that codes of practice issued under Part 5 of the Bill must be consistent with the ICO’s data-sharing code of practice. The government amendments further require persons to have regard to the ICO’s codes on privacy impact assessments and privacy notices, transparency and control when exercising relevant powers under Part 5. So we are now referencing all the codes which the ICO felt were critical for the operation of Part 5.

Of course, this is not the first time we have discussed amendments that seek to strengthen enforcement of the codes of practice by requiring authorities that use the powers of determined specified bodies to “comply with” rather than “have regard to” these codes. The Government’s position remains that “have regard to” is the right weight to give to codes of this type. That is itself a legal obligation, as the noble Lord, Lord Collins, noted. Moreover, the public law will expect those who are subject to the codes to follow their stipulations unless there are cogent reasons why they should not. We note that the Information Commissioner’s own codes are themselves advisory. A requirement to “comply with” the codes could lead to their being applied in a tick-box fashion, without due regard to whether the recommendations are actually applicable to and desirable in the context of the specific data share.

On the issue of adding additional persons to the consultation obligations for the codes, since Ministers have committed before Parliament to consult publicly on the Part 5 codes of practice, we suggest that such a requirement is unnecessary. The present provisions reflect what the noble Baroness noted to be the normal position.

Finally, on parliamentary oversight, the Government’s amendments fully implement the DPRRC’s recommendations, including, exceptionally, the use of the affirmative procedure for the first codes and the draft negative procedure thereafter. They go further than the noble Baroness’s amendment, and I hope that that will be welcomed by all noble Lords. I therefore invite the noble Baroness not to press her amendments.

[Baroness Hamwee]

My Lords, I thank the Minister for that response. I had forgotten to say that I was glad to see the government amendments about the affirmative procedure—it was because of looking at those that we got those two stray amendments that were tabled in error.

The noble Lord, Lord Collins, is absolutely right about the codes of practice. I simply say, before begging leave to withdraw, that it will not be possible for amendments to be made once the codes are put formally to Parliament. That is why wide consultation and—I do not like the term—an iterative process is very important on what will be significant documents. I beg leave to withdraw my amendment.

Amendment 25YYG withdrawn.

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[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.

Digital Economy Bill

Baroness Hamwee Excerpts

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

[Baroness Janke (LD)]

My Lords, I, too, shall speak to this group of amendments, having put my name to some of them. The noble Lord, Lord Collins, has already raised the issue about the permissive approach in the Bill, which we have rather rejected, and the question of inserting “complied with” rather than “had regard to”. Many of the amendments deal with that issue across the various agencies involved. When you consider that this is operated in relation to various criteria to do with improving people’s physical health, their emotional well-being, their contribution to society and their social and emotional well-being, the breadth of those areas is really rather daunting. You could justify almost anything under those four areas, and I do not really believe that the code of practice could be remotely enforceable if those were the criteria that were used.

Worse still, they could be used in a rather punitive way. For example, it could be argued that it is improving people’s well-being by making them work; and if they are disabled, pursuing people who have disabilities or difficulty in getting work could be used to penalise vulnerable groups. It would affect people who are on benefits or are pensioners—all sorts of vulnerable people. There needs to be somewhat more rigour in the Bill than criteria such as those that we see there now.

Moreover, these amendments deal with a minimum consultation period, which we support. Finally, the code of practice should be laid before Parliament, which, again, would be another safeguard. We must have much more transparency and greater rigour of application, enforceability and consistency across all the agencies and with other rules of disclosure. I would like to hear what the Minister has to say about these concerns. We believe that these matters must be answered and wish to understand the Government’s approach in order to decide whether we need to take this forward at a later stage.

[Baroness Hamwee (LD)]

My Lords, I, too, support the various amendments in this group. “Having regard to” a matter always seems to leave some wriggle room. If there should be exceptions to compliance—because I think we are talking about compliance here, not about consistency—then those should be spelled out. I accept that having codes of practice outside primary legislation allows for flexibility, which might be useful, for a response to experience of the operation of the code and, perhaps, for changing circumstances. However, there is so much reliance on codes of practice here that an inclusive process for constructing and finalising them is very important, as well as transparency in operation.

The noble and learned Lord will probably have a better recollection than I have of the discussion during the passage of the Investigatory Powers Bill about providing transparency by way of ensuring that people who were affected by the transmission of information knew about it. This was rejected for security reasons, but that would not be the case here. The overall objective has to be transparency and inclusiveness.

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

My Lords, Amendment 81 and the other amendments in this group are intended, of course—and I understand this—to strengthen enforcement of the codes of practice in relation to the public service delivery, debt and fraud, and research powers by requiring authorities who use the powers to “comply with” rather than “have regard to” these codes. The noble Lord, Lord Collins, has sight of a loophole, and the noble Baroness, Lady Hamwee, has encountered wriggle room, but I would take issue with those descriptions.

There is common ground here. We, too, believe that the codes are an important part of the data-sharing powers. However, the Government believe that “have regard to” is the right level of obligation for a code of practice. This is a legal obligation. Such persons when disclosing or using information will be expected as a matter of law to take the codes seriously and follow their requirements in all cases unless there are cogent reasons why they should not do so. It is, of course, common practice for legislation to set out the critical limitations on a power while codes of practice—which are more adaptable, as the noble Baroness, Lady Hamwee, acknowledged—are advisory tools that supplement with regard to best practice, principles and guidance.

The noble Lord, Lord Collins, alluded to a situation in which an authority exceeds its powers for the public good. In such a situation—without going into the detail of it—the authority would be exceeding its powers and it would have to answer for that, whatever the public good might justify in other circumstances.

Key conditions for the disclosure and use of information are set out in the Bill, including what can be shared, by whom and for what purpose. We have followed a common approach taken by government and others, including the Information Commissioner, to provide more detail on how data are to be shared in a code of practice. That does not mean that the code is to be treated lightly. Legal consequences may follow if the code is disregarded, as the Delegated Powers and Regulatory Reform Committee pointed out in its report on the Bill. The relevant Minister can make regulations to remove a body’s ability to share information under the power if it fails to adhere to the code. The noble Lord, Lord Collins, raised the question as to whether that is considered sufficient in the circumstances. We do consider that that is a sufficient safeguard in the circumstances. I also remind noble Lords—in particular, the noble Baroness, Lady Janke—that the first requirement of the Data Protection Act is that processing of data should be fair and reasonable. That underpins in existing legislation the whole approach that should be taken to this Bill.

The noble Baroness, Lady Hamwee, sought to draw a distinction between the provisions here and those in the Investigatory Powers Act about knowledge of data transfers. Of course, although we are not necessarily dealing here with national security, we are dealing with issues such as fraud, where it would be wholly inappropriate to give people advance notice of data sharing, particularly if one were going to address issues of criminal conduct.

Amendment 107B would require breaches of the code of practice on the public service delivery power to be reported to the Investigatory Powers Commissioner. It also places a duty on the Investigatory Powers Commissioner to investigate serious breaches and, where necessary, to inform the relevant individual of the breach. In doing so, the commissioner would have to ask the person in breach to make submissions before making a decision. With respect, the amendment would impose a considerable additional function on the Investigatory Powers Commissioner, where he or she would be bound to deal with breaches of a code of practice on information sharing which in no way relates to the commissioner’s remit of investigatory powers.

Indeed, placing such duties on the Information Commissioner would effectively be broadening the Information Commissioner’s remit without appropriate consultation. It would, as with Amendment 81B, cut right across the functions of the Information Commissioner, as distinct from the Investigatory Powers Commissioner; the Information Commissioner being responsible for upholding the Data Protection Act 1998, and also the safeguards and procedures for dealing with breaches of the code, which are already set out in various provisions. Such an amendment would blur the lines between the responsibilities of the Information Commissioner and the Investigatory Powers Commissioner and potentially lead to confusion and unnecessary duplication. If, in making those observations, I referred to the Investigatory Powers Commissioner when I meant the Information Commissioner and referred to the Information Commissioner when I meant the Investigatory Powers Commissioner, that simply underlines how easy it is to cause confusion in this area.

Amendments 108, 115, 134 and 151 call for the codes to be subject to approval by Parliament. A similar requirement was also raised by the Delegated Powers Committee in its recent report. We are carefully considering that proposal and I assure noble Lords that we will be responding to it shortly. Amendments 109 and 135 would introduce a requirement for the Minister to consult publicly on the code for a minimum of 12 weeks before issuing or reissuing it. Amendments 110, 152 and 190 would require that the Minister demonstrate that responses to the public consultation,

“have been given conscientious consideration”.

The policy in respect of these powers, and much of the content of the codes of practice, have been developed over two years of open policy development with a range of public authority and civil society organisations. The code sets out procedures and best practice drawn from guidance produced by the ICO and Her Majesty’s Government. We amended Clauses 36, 45, 53 and 61 in the other place to ensure our code will be consistent with the Information Commissioner’s data-sharing code of practice. The clauses contain a requirement that the Minister consults the devolved Administrations, the Information Commissioner and any other person the Minister considers appropriate prior to the issue or reissue of the code. I assure noble Lords that these other persons will include civil society groups and experts from the data and technology areas. It is, indeed, our intention to run a public consultation before laying the code before Parliament. I need hardly add that all consultations are taken seriously by the Government and all responses considered with appropriate conscientiousness.

I understand the interest in the codes and the desire to make sure they are effective. The codes will provide a strong safeguard for the use of the power, backed up by real consequences if they are not adhered to. With that, and while we consider the recommendations of the Delegated Powers Committee further—as I have indicated, we intend to do that in the very near future—I invite the noble Lord to withdraw his amendment.

[Baroness Hamwee]

The noble and learned Lord warned us against giving advance notice to potential fraudsters, but I think we are talking in these amendments about notice which may be in retrospect. I am looking at the noble Lord who has tabled the amendments. There are different issues, I think, about giving notice in advance and telling people that you have transferred information. Maybe we need to come back to the distinction between the two at the next stage. On the requirement to have regard but not necessarily to comply, does that not point up the real weakness of a code that is not approved by Parliament? These two bits of fragility seem to me to go hand in hand and undermine the security, as it were, of the regime.

[Lord Keen of Elie]

I am content that we return to the noble Baroness’s first point if she feels that there is a point of distinction to be made. On her second point, I do not accept that there is fragility in this context. We are well aware, by virtue of past practice, that this formulation is appropriate to the application of codes of practice. Indeed, the noble Baroness herself observed that when applying one’s mind to a code of practice, a degree of flexibility is necessary. One cannot freeze them. That is why we consider that the wording here is appropriate.

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[Lord Whitty (Lab)]

My Lords, like those of the noble Lord, Lord Kirkwood, my three relatively small amendments in this group relate to fuel poverty. I was not at all surprised when my noble friend Lord Collins of Highbury was a bit confused at the beginning of this rather mixed-up group. It covers not only my subjects but voter registration and free school meals; most of the government amendments seem to relate to water and sewerage. I was tempted to say that it covers electoral rolls, bread rolls and toilet rolls. However, my amendments deal with something entirely different and their intention is very much the same as those of the noble Lord, Lord Kirkwood. I will not repeat all that he said.

My aim here is to make the system of data sharing more effective. I recognise all the concerns expressed around this Committee about the dangers of data sharing by public bodies and I understand them, because in different circumstances I have been deeply suspicious of the gas and electricity companies, as the noble Baroness, Lady Byford, clearly was a couple of groups ago. To make identification of the fuel poor more effective, we need more effective and comprehensive data sharing, along with the ability of different authorities and companies to share them, but this must be subject to all the safeguards. One safeguard is clearly stated in the Bill: that the information that can be used and shared in this way relates to the health of those affected by fuel poverty because they live in cold, draughty and damp homes. I do not need to spell out the effects of fuel poverty on those people’s health. It is quite important that in addition to the provisions in Clause 30(8) for helping the delivery of services and benefits, the clause should also refer to improving the health of those affected by it. My first amendment would do that.

My second and third amendments simply extend those gas and electricity operators which need to be engaged in it and will be subject to the same safeguards. It is increasingly the case that consumers and householders, including the fuel poor, have a closer affinity with the distribution networks than with their sensible supplier, which sends them the bill. To improve their situation, they will have to deal with the electricity distributor and, shortly, with the gas network distributor company. These amendments to Clause 31 deal with putting those distributors in the same category as gas and electricity suppliers. These are tidying-up amendments but they will make data sharing in this important area of fuel poverty more effective. The noble Lord, Lord Kirkwood, spelled out why that is necessary and, in particular, why those not automatically assigned to the warm home discount need to be identified and automatically put on the list of those who receive it. If we achieve that via the Bill, it will be a very important improvement and a step towards eliminating fuel poverty in our society.

[Baroness Hamwee]

My Lords, I want to ask a question about government Amendments 83A and 83B, which are about water and sewerage. Will these provisions apply only where there is a water meter? I am struggling to understand how they can work if the customer does not have metered water, and whether the information would be relevant—and how it could be used—if that is not the case. I am quite prepared to be told that I have not understood this properly but if I am right, should the provision not spell out that it is confined to that situation? That would make it clearer.

[Lord Hunt of Wirral (Con)]

My Lords, I declare my interest as a partner in the global insurance law firm DAC Beachcroft and as chair of the British Insurance Brokers’ Association, along with other interests set out in the register.

In speaking to Amendment 196A, I seek to address a small but important point on the operation of the Employers’ Liability Tracing Office, or ELTO. Colleagues may recall that I also raised this when we debated the Enterprise Bill in 2015. Although it has been grouped with amendments to Clause 30—I am happy to accept the grouping—it seeks to insert a new clause after Clause 65 in Chapter 6 of the Bill, which deals with Her Majesty’s Revenue and Customs.

In 2010, the Department for Work and Pensions identified the need for a tracing office, and ELTO was established in the same year. Sadly, former employees continue to contract industrial diseases, including cancer, due to workplace exposure many years earlier. All too often, the employer is no longer in existence by the time the disease is diagnosed. This was considered by our colleagues at the Department for Work and Pensions as a major obstacle to the former employees’ obtaining compensation.

ELTO was established, and the insurers are now required to provide to ELTO details of all employers’ liability policies that have been issued since April 2011. According to the information I have received, ELTO is working well. In the 11 months to the end of November last year, there were more than 178,000 successful searches of the Employers’ Liability Database, but it could be working better.

The piece of the jigsaw that is often missing is the employer’s PAYE reference number. This number is now used to identify an individual employer in the Pay as You Earn system. Each employer is given a unique reference number. If this unique reference number could be applied to the Employers’ Liability Database, it would make searches more accurate, as it would avoid problems of company names’ changing over time. Generally speaking, it would enable the correct employer to be traced.

One major obstacle is that by law ELTO is unable to gain this information under the Commissioners for Revenue and Customs Act 2005, which prevents HMRC from sharing information except in specified circumstances. Alternatives to primary legislation have already been explored with HMRC. Although we often think of employers as large companies, many are sole traders or family partnerships. For them, the reference number could well amount to personal data, which are rightly protected from general disclosure.

The measure, which I now understand is supported by ELTO and HMRC, is proportionate. HMRC has a ready-made database of these unique reference numbers to which ELTO could be given limited access. All ELTO needs is the reference number itself and the name and address of the employer as a cross check. The amendment would permit ELTO and HMRC to set up, at no cost to HMRC, a facility to share this limited information. It will help make the ELTO database fit for the future.

Many noble Lords will know that I have the honour to be an officer of a number of all-party groups, including not only the Occupational Safety and Health All-Party Group but also the All-Party Group on Insurance and Financial Services, so I should also declare those interests because this amendment is strongly supported by my colleagues on those groups.

This amendment would provide great benefit to employees, employers and insurers alike. I hope my noble friend the Minister will feel able to accept it.

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[Baroness Byford (Con)]

My Lords, in this group I tabled Amendments 100 and 196. Within this group we are debating data sharing and the putting in place of safeguards that make us confident in the next move to make life better for the majority of people. I have one or two direct questions, particularly on the level of data that will be supplied from one authority to another. For example, does the Bill intend that information be supplied on the number of households in a given postal area where child benefit is being claimed and/or where all adults are unemployed? Would it be up to the users of the data to extract a summary picture from details of, for example, names, addresses, whether benefits are received, whether householders are unemployed or any other data?

At any level of inquiry, I presume data will be transferred such as dates of birth and marital status that, were they to fall into the wrong hands, could be used to perpetrate private fraud. No one today has mentioned private fraud, but it can come about as a result of lack of security and safeguarding. Again, perhaps the Minister will indicate what relevant provisions there are. I am unsure whether I have missed some. At earlier stages of the Bill I mentioned the amount of fraud going on and it is horrifying. If the Bill can in any way tighten up on that, it would be an advantage.

For example, will personal information cover things such as whether an individual has a diagnosis of dementia or whether a family has been a cause of concern to the social work department in their own area? Who makes these judgments? At what stage are these activated? I may not have read the Bill carefully enough to find the missing answers. I pose these fairly simple questions to make sure that our safeguarding of this information is secure.

Amendment 100 is a probing amendment that seeks to complete the explanation of what information HMRC would disclose, providing examples of the circumstances under which it would be disclosed and a complete list of the groups or persons whose information would be handed over. This relates to Clause 30, of which we spoke earlier. Subsections (9) and (10) specify the well-being of persons or households and define well-being in terms of physical or mental health, contributions to society—which we have covered slightly earlier on and which is difficult; I should be glad of clarification on that—and emotional, social and economic well-being. The latter are easier to understand.

Clause 31 refers to people living in fuel poverty. Again, we debated this previously. Fuel poverty has been defined as,

“living on a lower income in a home which cannot be kept warm at a reasonable cost”.

Clause 32 also refers to people living in fuel poverty. I do not understand what is intended, nor what will be involved for those deemed to be affected. Defining well-being in terms of well-being suggests that definitions of those covered by this legislation could depend on the personal and political stance of those making those decisions. What is “lower income”? Within what limits do homes qualify under these clauses and who will rule that they cannot be kept warm at reasonable cost? What will be the limits of powers of such a decision-maker over, for example, someone who prefers to wrap up for three months of the year so they may enjoy their garden for nine; in other words, somebody who is living in a bigger house that costs more to heat? Will an individual be able to opt not to have personal information shared within local authorities and/or with gas and electricity suppliers?

Turning now to my Amendment 196 in this group, I do not pretend to know anything about the structure, organisation or responsibilities of HMRC. Hence, I do not understand whether an “official” is someone equivalent, say, to a board member in a quoted company. I fear, however, that that is unlikely to be the case. In this era of Facebook, Snapchat and the substitution of public opinion for demonstrable fact, I am unhappy—I do not know whether other noble Lords are—that perhaps a more junior member of HMRC could decide that disclosure would be in the public interest. In other words, where does the buck stop?

Disclosure of personal information, even supposedly non-identifying, should be done only on the authority of the head of the organisation. He or she presumably will have the knowledge, experience and breadth of understanding to be sure that it cannot be combined with other data to name individuals. He or she will also, presumably, be less likely to make errors of judgment, and of course a claim of ignorance of any such disclosure would not stand up to scrutiny, as they would obviously be at the most senior level.

[Baroness Hamwee]

My Lords, I will just pick up the noble Baroness’s last point about who is an official. There are examples, in other legislation, of references to “senior officials” and “designated officials”, which might be somewhere between the junior official she has in mind and the Permanent Secretary, but she is right to draw the issue to the Committee’s attention.

On an earlier group, the noble and learned Lord indicated that he was going to speak at greater length—I assume that may be on this group—on the reason for using the term “personal information” rather than “data”. Perhaps I may use my noble friend’s Amendment 213 to ensure that we get to share more of Government’s thinking. I understand the point about corporations, since in the one case, they come within the group covered, and in the other they do not. But I am still puzzled as to why such efforts have had to be made to deal with personal information and then to add in references to the Data Protection Act, rather than starting from the DPA—with any necessary exclusions—which would have taken us straight to the involvement of the Information Commissioner, the data protection principles and so on.

I wondered during the Statement whether to have a go at some alternative drafting for Report, but thought I had better wait for this discussion. But perhaps part of it boils down to a question on Clause 33(8), which says, in wording replicated elsewhere, that,

“nothing in section 30, 31 or 32 authorises … a disclosure which … contravenes the Data Protection Act”.

To look at it from the other end of that telescope, is there any personal information which is the subject of the Bill that would not fall within the DPA and therefore not be protected by that clause?

[Lord Clement-Jones (LD)]

My Lords, I thought I would intervene to see if it might help the Minister. The code of practice does not make things any clearer. With reference to my noble friend’s very apt point about information versus data, paragraph 4 of the code says:

“The definitions of ‘personal information’ contained in the Bill are intended to ensure that the information shared through these powers is handled carefully”.


That does not sound like a particularly good legal answer to the question. It goes on:

“Though the definition of ‘personal information’ for the purposes of the Bill may differ from the definition of ‘personal data’ in the DPA, all information shared and used under the public service delivery, debt and fraud provisions must be handled in accordance with the framework of rules set out in the DPA”.


Where is that explicitly set out? It would be very helpful if the Minister, in answering, could advert to that as well.

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[Baroness Hamwee]

My Lords, the noble and learned Lord may have already answered this, as his response was inevitably very full and quite dense, but on my question about Clause 33(8)—and the words are repeated in other clauses—although nothing in the sections authorises a contravention of the DPA, is there personal information within the Bill that would not be within the DPA and therefore not protected by that subsection?

[Lord Keen of Elie]

I am obliged to the noble Baroness, Lady Hamwee. Although the definition of personal information differs from the definition of personal data in the DPA, all personal data shared and used under the public service delivery provisions must be handled in accordance with the framework of rules set out in the DPA, and in particular with the data protection principles, because the DPA is not overridden by this chapter. To the extent that the class of personal information is wider than personal data, although the DPA does not directly govern such information, we still expect that information will be handled in accordance with that framework because of the requirements of the codes of practice under Part 5. I hope that answers the noble Baroness’s question.

[Baroness Hamwee]

My Lords, I see an amendment at Report coming up.

[Lord Collins of Highbury]

My Lords, I thank the noble and learned Lord for his comprehensive response. Clearly, there is a lot in the codes of practice, so we await the response. I welcome, too, his commitment to come back to report on the issues that the Information Commissioner and we have raised.

Both the GMC and the BMA raised the issue of confidentiality and the common law. They obviously have legitimate concerns about the future impact. Confidentiality is not simply an issue of administration and protection administratively; it is a fundamental issue about the nature of the relationship between doctor and patient, where trust is absolutely vital for medical treatment, ongoing treatment and so on. We may have to come back to this issue at Report. In the meantime, I beg leave to withdraw the amendment.