Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019

Debate between Baroness Hamwee and Lord Kennedy of Southwark

Tuesday 12th March 2019 Grand Committee

[Lord Kennedy of Southwark]

I have one final point. I will then leave it and move on. If we are to have more regulations, in the next few days or whenever, I hope the Government will take on point the concerns raised here and in the other place.

[Baroness Hamwee]

My Lords, it seems to me that there a number of stages to this. There is scrutiny and then, as the Minister says, making the final regulations accessible to practitioners. Those are not necessarily the same things and what one may also take away from this experience is the need—following the scrutiny to whatever extent it is successful—to produce final versions in each of the subject areas that can easily be used, without having to go through the awful trail that we are all familiar with.

Offensive Weapons Bill

Debate between Baroness Hamwee and Lord Kennedy of Southwark

Report: 1st sitting: House of Lords
Tuesday 26th February 2019 Lords Chamber

[Baroness Hamwee]

My Lords, the noble Lord, Lord Lucas, is unable to be here but has asked me to move this amendment on his behalf so that we may get the matter on the record. However, I will not speak to Amendment 81, which is in this group and also in his name, because he will get the opportunity to do so if we leave it to be discussed in sequence on the next day of Report.

The amendment seeks guidance. We have government amendments in this group, and no doubt the answer to Amendment 3 is Amendment 106. In the Government’s amendment, the guidance is about a large number of offences relating to various sections in legislation, including Clause 1 of this Bill, and therefore it covers a wide area. Guidance can be very helpful—it sounds as though it will be essential here—but, as I have said before, it should not take the place of clear primary legislation. It is executive, not legislative. I beg to move.

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

My Lords, Amendment 3 in the name of the noble Lord, Lord Lucas, and moved by the noble Baroness, Lady Hamwee, and the noble Lord’s Amendment 81, which he will speak to himself when we come to that point in the Bill, ask the Secretary of State to issue guidance. We are placing burdens on shop workers and delivery drivers, and it is incumbent on the Government to issue proper guidance. I know that we have the government amendments and I look forward to the Minister setting them out, as we have a situation where people can be prosecuted and end up in prison, so we need to make sure that they understand their responsibilities. I look forward to the Minister setting that out for the House.

Migrant Crossings

Debate between Baroness Hamwee and Lord Kennedy of Southwark

Monday 7th January 2019 Lords Chamber

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

My Lords, I thank the Minister for repeating the Statement made by her right honourable friend the Home Secretary in the other place earlier today in respect of migrant crossings. I join her in sending our best wishes, thoughts and prayers to those injured in the Manchester Victoria station attack on New Year’s Eve. I also join her in paying tribute to the emergency services and other agencies and individuals working in the English Channel in the most distressing and dangerous circumstances. We are very grateful for all the work they do in those difficult situations.

These are serious matters and should be treated as such. Action should be taken as necessary and the Government will have the support of the Opposition in that respect. But some of the language used in the past few days by the Home Office was a little florid, to say the least, when looking at the number of refugees we are talking about. I would prefer to see urgent action taken to deal with the problem that we all can see is there.

Perhaps the Minister could answer a few questions for me. Can she confirm that the UK is bound by the 1951 UN Convention relating to the Status of Refugees and that all agencies of the state coming into contact with refugees have to act in accordance with its provisions? Does she accept that before anyone is deemed not to be a genuine refugee the facts surrounding their case must first be examined fully? On the deployment of the Royal Navy, can she set out for the House what orders are given to those deployed in the English Channel and can she explain how the various agencies are co-ordinating and working together? I think the Statement mentioned Border Force, Immigration Enforcement, the coastguard, the National Crime Agency and the RNLI, along with the various French authorities operating in the English Channel and on mainland France. Can she also tell the House what will be the total cost to the Home Office of the Royal Naval deployment and how that will be funded? Does she have any idea of the cost per person rescued, and how many people smugglers have been prevented and detained? Can she also tell us whether the operations that were taking place in the Mediterranean have now been suspended or reduced? Can she also explain what contingency measures have been put in place so as not to leave a gaping hole in other co-ordinated efforts? I thank the Minister in advance for her response.

[Baroness Hamwee (LD)]

My Lords, I too thank the noble Baroness for repeating the Statement without pausing for breath after the last subject. Like her and the noble Lord, I am very aware of the situation in Manchester. I am sure that she feels as I do. When you know a place well, as we both know Manchester Victoria station, these things become even more vivid in one’s mind.

This is an awful situation, but relatively small numbers are involved in the context of the international refugee position. I too wonder whether it is appropriate to focus on the recent Channel crossings or attempts to do so and whether, if we were not still in mid-Brexit mode, there would not have been a rather quieter and calmer reaction to the situation. The Statement refers to the NCA taking action. Can the Minister expand on what that action is? It talks about tackling criminal activity and says that trafficking puts lives at risk—as indeed it does—and we were told that one person has been arrested. Was that for a trafficking or smuggling offence? I would be glad for confirmation that we are not talking about immigration detention here.

Of course one agrees with the Home Secretary that getting into a rubber dinghy is not safe, but we would much prefer the “safe and legal routes to sanctuary” formula, which is well known and widely used, rather than the “safe and controlled” formula, which seems to be a newly coined phrase. Finally, the Statement refers to work in countries of origin, which of course we support, but that does not deal with people fleeing persecution or war. The UK has an obligation to consider all asylum claims properly and fairly and to grant asylum to those who are eligible, regardless of how they got here. After all, many certainly do not want to have to escape their own country by these means. Does the noble Baroness agree?

Counter-Terrorism and Border Security Bill

Debate between Baroness Hamwee and Lord Kennedy of Southwark

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Baroness Hamwee]

That is an interesting response and I will have to think about it. I share the concern of the noble and learned Lord, Lord Judge, not to involve the Executive where it should not tread. There could be parliamentary scrutiny. We have become possibly too reliant on codes of this and that to flesh out what lies underneath legislation—it is not something I much like, and I have obviously been sucked into it. So we could have parliamentary scrutiny if we had a statutory instrument, but we could also list in the Bill the sorts of examples we have talked about, in the way that the amendment from the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, seeks to do in Clause 4. I think that that is a particularly good way of going about it.

I do not suppose the Minister can answer this, but his reference to the Independent Reviewer of Terrorism Legislation prompts me to ask about progress in appointing the new reviewer. He is indicating that he cannot answer, and I did not expect him to, but it is a point that was worth making at some stage in this debate.

[Lord Kennedy of Southwark]

My Lords, I thank all noble Lords for their contributions to this debate and the noble Earl, Lord Howe, for outlining the position of the Government on this group of amendments. I appreciate his detailed response, which is beneficial to the Committee.

I will reflect on all the responses and comments—particularly the wise comments from the noble and learned Lord, Lord Judge. Those comments could be interesting for guidance on other legislation before the House on which the Government take a contrary view. However, we shall discuss that in a few weeks’ time. At this stage I beg leave to withdraw the amendment.

Crime (Overseas Production Orders) Bill [HL]

Debate between Baroness Hamwee and Lord Kennedy of Southwark

Committee: 2nd sitting (Hansard): House of Lords
Monday 10th September 2018 Grand Committee

[Baroness Hamwee]

I do not suppose that that will trouble us in Grand Committee.

Clause 10 deals with the retention of data and its use as evidence. Clause 10(1) provides that data,

“may be retained for so long as is necessary in all the circumstances. This includes retaining it so that it may be used as evidence in proceedings in respect of an offence”.

“Necessary in all the circumstances” is quite a wide term. It may be unkind of me but, when I reread it yesterday, it felt as though the writer had run out of steam. One example is given but I would have expected more information about protections and clarification; otherwise, how does one challenge this? Therefore, the amendment is intended to ask the Minister how the Home Office envisages that this clause will operate in practice.

Given the example included, I wonder whether the Home Office anticipates producing guidance regarding retention, and that is the subject of Amendment 31. Amendment 32 is intended to probe the term “an offence”. Does this mean any offence? In particular, if an offence other than the object of this exercise is disclosed, is a fresh application needed or can this be—I will use the extreme term—an unending fishing expedition? I beg to move.

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

My Lords, the noble Baroness, Lady Hamwee, raises three important amendments here and I look forward to the Minister’s response. She is right that, as written, the provision appears to be very wide in scope, and it would be better to have more clarification. The terms “in all the circumstances” and “an offence” are very wide, and it would be good to hear what they are. As the noble Baroness said, it would appear that there could be a never-ending fishing expedition, which in itself would not serve justice. I look forward to hearing the response to the very valid points raised.

--- Later in debate ---

[Lord Kennedy of Southwark]

I thank the Minister for saying she will look at those points. If we are mirroring PACE then we can mirror the guidance as well.

[Baroness Hamwee]

My Lords, I think I am going to have to spend some time between now and Report familiarising myself with PACE or hand this over to my noble friend Lord Paddick, whose bread and butter it was at one time. I take the point made by the noble Lord, Lord Kennedy, but I remain faintly uneasy about how open this is. Nevertheless I thank the Minister and I beg leave to withdraw the amendment.

Crime (Overseas Production Orders) Bill [HL]

Debate between Baroness Hamwee and Lord Kennedy of Southwark

Committee: 1st sitting (Hansard): House of Lords
Wednesday 5th September 2018 Grand Committee

[Baroness Hamwee]

My Lords, our exchange on the previous group of amendments, when the Minister gave a lot of assurances, makes me even keener on Amendment 5, which would require writing into the Bill that a designated international co-operation agreement must be in the form of a treaty. I understand that that is what was intended, so I think it would be more than appropriate to say so. Taking only the discussion about the death penalty, it argues for the amendment, given that the procedures for dealing with the treaty under the Constitutional Reform and Governance Act 2010 include safeguards to be met before a treaty can be ratified which include transparency, debate in public, and so on.

The Minister gave a list of matters—I failed to write down all of them—to which the Government would have regard. I got down trust, mutual respect, judicial oversight and “must be compliant with HMG guidance”. The reference to guidance has my antennae twitching in this context. We do not want to rely on guidance; we want to rely on legislative certainty and the involvement of Parliament.

The Minister said either at Second Reading or in a meeting before Second Reading—we are always grateful for such discussion—that the Government would not enter into an agreement with North Korea. I could add to that nightmare not a treaty but a memorandum of understanding with North Korea, which would come nowhere near Parliament. Our laws have protection against a mad Executive and we should commit to using them.

We have had a long but inconclusive discussion about how human rights would be protected. A statement to Parliament under the 2010 Act procedure would deal with this. It might also set out standard clauses. I am unclear whether we should expect standard clauses in different co-operation agreements. They should be relatively straightforward in most cases.

For similar reasons, Amendment 38 would apply the affirmative procedure to regulations designating the co-operation arrangement. We all know about the problems with scrutinising secondary legislation.

Amendment 6 is to ask what is meant by participation in this context. Clause 1(5) refers to an arrangement,

“to which the United Kingdom is a party or in which the United Kingdom participates”.

What is participation in this context? I beg to move.

[Lord Kennedy of Southwark]

My Lords, the noble Baroness has done her usual forensic job of going through the Bill and done a service to the Grand Committee. It is important that we are clear about what we are agreeing. I look forward to hearing the Minister’s response. It is right that Amendment 5 makes it clear that we are talking about the treaties which are subject to the Constitutional Reform and Governance Act 2010. It is a sensible move.

Amendment 6 is a probing amendment at this stage. What is meant by participation? If you are a party to something, then there is what you are participating in, so clearly the Government think that there are two different things. It will be good to hear the Minister’s view on the difference between those two things and why they both need to be in the Bill. I am sure that “form of a treaty” needs to be in the Bill.

Finally, Amendment 8 ensures that whatever regulation is agreed will be subject to the affirmative resolution procedure in the House. Again, I think that is important. Will the Minister confirm that the Government would do that anyway and, if so, say why it is not in the Bill?

Immigration and Nationality (Fees) Regulations 2018

Debate between Baroness Hamwee and Lord Kennedy of Southwark

Tuesday 12th June 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I, too, congratulate the noble Baroness. I will add persistence to the attributes that have already been listed. As noble Lords have said, this was raised not only in the Select Committee on Citizenship and Civic Engagement but at a recent Home Affairs Select Committee taking evidence from the Home Secretary. In response to one member, the Home Secretary said that the Home Office had to get the right balance between the funding of the Home Office and the fees charged. Like other noble Lords, I question whether this is a matter of balance.

As the noble Lord, Lord Russell, mentioned, a memo giving a rundown of the cost of these fees and how they were justified was requested. The Home Secretary responded to the comment that, on the face of it, the fees go way beyond normal cost recovery by saying that it would be a “good exercise for me” as well.

We hear many complaints and expressions of astonishment about the level of Home Office fees generally. I take the point made by the noble Lord, Lord Kirkhope, that the complexity of the system is at the root of this. When the Home Office introduced its premium service some years ago, my first reaction was that, given what all applicants have to pay, they should all get a reasonably quick and reliable service. I do not think I need to expand on that. The briefings have reminded me that I have often read about a whole family being subject to fees, particularly those payable periodically over a long period. That is similar to the position of Amelia, which has been mentioned. If it is not essential to pursue the matter, for instance with naturalisation, and it is too much for the family, some members are omitted. It may be children but often it is women. I can imagine the potential problems down the line in the cases we have heard about, quite apart from the issue of these children being unable to exercise their rights.

What is at issue is not entitlement but the registration of that entitlement. The child has a statutory right to citizenship and everything that goes with it. As noble Lords have said, this is not about immigration control. On Thursday, we will be debating the difficulties that some people face when they try to pursue activities in everyday life. However, these children are not migrants and, as the noble Lord, Lord Alton, mentioned, the leave to remain is not a substitute for citizenship, as is sometimes suggested by the Home Office. I understand that it is not necessarily available, but it is not for the Home Office to dismiss rights in this way.

In his strategy for social integration, the Mayor of London put it very bluntly, saying that,

“if a young person has the right to be a British citizen, then government should remove obstacles to them becoming one”.

He commented on the profit element, which is,

“at least ten times higher than in many other European countries”,

and is,

“preventing too many young Londoners from accessing the rights they are fully entitled to by law”.

The Project, to which the noble Baroness referred, is very telling and powerful and I will quote one short paragraph from it:

“High-cost fees are completely contrary to the promotion and process of integration. Fees act to divide, distorting the vibrant futures of us—and other young people—caught in the complex net of immigration and nationality entitlements. Fees prevent young people from working, paying tax and contributing economically to society”.


I think that meets the right reverend Prelate’s definition of citizenship. Picking up the noble Earl’s point about young people finding other families, I recently heard that one should not use the term “gang” when working with young people in gangs, because they regard the gang as their family. That needs to be recognised.

The Joint Committee on Human Rights, of which I am a member, recently reported on a remedial order following declarations of incompatibility with regard to the British Nationality Act. In that case, it was about requirements of good character. We raised potentially discriminatory provisions in British nationality law with the then Home Secretary, concluding:

“We would be grateful for an assessment and an explanation from the Home Office as to whether any such discrimination does in fact persist”,


and were pleased that the Immigration Minister responded that she would ask her officials to look at this. I cannot help thinking that charging fees in the way that we have been discussing is a form of discrimination.

I have read the Library briefing for Thursday’s debate. It refers to the work by Coram and the Children’s Society, which have reported that there are 144,000 undocumented migrant children in the UK. I do not know how many are in the categories we have been discussing but that is an astonishing and worrying figure. To summarise what other noble Lords have said, I end by saying, “and dot, dot, dot”.

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

My Lords, my noble friend Lady Lister of |Burtersett has highlighted an important issue in her regret Motion and I agree with almost everything that every noble Lord has said in the debate so far.

First, my noble friend has highlighted the increase in the fees that have to be paid and that just over one-third of the fee payable is attributed to the costs involved. The Government generally have a confusing attitude to fees and charges, and consistency is at no point evident in the actions they take in this regard. Generally, I am in favour of cost recovery on fees and have been calling for this to be implemented in the planning system. That call has fallen on deaf ears—even my suggestion that the idea should be trialled in one local authority has not been taken up—so council tax payers are left subsidising applicants for planning permission. Despite the Local Government Association calling for this to be brought in, the Government will not engage with it. The overcosts referred to by the noble Lord, Lord Kirkhope of Harrogate, have now reached local government planning, because the fee is a local one and not a national fee set by the Government. In that respect the Treasury is not a direct beneficiary—which might explain its attitude.

Here we have the opposite. We go way beyond recovering the costs of the application and are charging a large amount of money and, in effect, making a large profit from the process of becoming a citizen. My noble friend asks the Government to withdraw the increase until they have done two things: first, published a children’s best interests impact assessment and, secondly, established an independent review of fees for registering children as British citizens in the light of the report of the Select Committee on Citizenship and Civic Engagement.

Dealing with each point in turn, an impact assessment has been produced in respect of the regulations which is fairly detailed in comparison with some other impact assessments I have read on other statutory instruments. However, my noble friend’s regret Motion to Regret is specific: it does not refer to the whole of the fees set out in the regulations but specifically to the increase that affects children. In that respect the impact assessment is fairly light.

As the noble Lord, Lord Russell of Liverpool, said, the new Home Secretary, the right honourable Sajid Javid, has accepted that the fee is a very large amount of money. He said on 15 May:

“It is a huge amount of money to ask children to pay for citizenship”.


So my noble friend’s request for a specific impact assessment to be produced focusing on children impacted by this fee increase is reasonable, and I hope the Government will agree to it willingly.

The children impacted include those born in the UK; those who came to the UK at a young age, who have grown up in this country and often have no idea that they are not British; stateless children; and children growing up in local authority care. As we have heard, the British Nationality Act 1981 brought to an end being born in the UK on its own as a sufficient reason to acquire British citizenship—unless you were born to British parents. However, the Act recognised that there would be other children who also had a very strong claim, and if the level of fees being charged is becoming a barrier to that, it is a matter of much regret.

The second part of my noble friend’s Motion draws the attention of the House to the report of the Select Committee on Citizenship and Civic Engagement. This has a section on the naturalisation process, and two of its recommendations are particularly pertinent to today’s debate. On page 120, at paragraph 485, the Select Committee says that the fees charged for naturalisation should be much more in line with the actual costs and that the Government should not seek to make excessive profits out of the process. On page 122, at paragraph 492, it asks the Government to consider whether the fees should be waived for children in care and children who have spent their entire life in the UK. My noble friend is asking for an independent review to be established in the light of this report—and, again, she makes a very strong case.

I was struck by the figures that the noble Lord, Lord Scriven, brought to the debate. I will bring one final point to noble Lords’ attention. The fee in 1983 was £35. If that fee had increased only by taking into account inflation, it would today be £114.71—£897.29 less than the proposed fee of £1,012 in the regulations. As I said at the start of my remarks, I am in favour of cost recovery, so it should be set at least at that £372 mark—but those figures are stark and highlight why my noble friend is right. The Government should act quickly on this and the House should support my noble friend in the Division Lobby.

Secure Tenancies (Victims of Domestic Abuse) Bill [HL]

Debate between Baroness Hamwee and Lord Kennedy of Southwark

Report stage (Hansard): House of Lords
Tuesday 6th March 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, my name is added to these amendments. I congratulate the noble Baroness, Lady Lister, and thank the Minister for all the work that they have done.

I have just written a short piece on scrutiny and have written mostly about the need to engage with stakeholders and practitioners—people who know what they are talking about. Although I take great delight in asking whether “and” should be “or” and so on, that is not really the purpose of scrutiny. However, this seems to be a very good example of those who have experience of real situations working together to anticipate where there might be problems if the legislation is not changed, as it has been. Therefore, I congratulate them and feel rather privileged to have been able to tack my name on to these amendments.

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

My Lords, as this is my first contribution to the proceedings on the Bill today, I draw the attention of the House to my interests listed in the register—in particular, the fact that I am a councillor in the London Borough of Lewisham and a vice-president of the Local Government Association.

Amendments 1 to 4, proposed by the noble Lord, Lord Bourne of Aberystwyth, and supported by my noble friend Lady Lister of Burtersett and the noble Baroness, Lady Hamwee, have my full support. The amendments in themselves might look quite small but they provide a clarity that is needed following examination of the Bill by noble Lords. A number of conversations have been held outside the Chamber to get the wording right.

I thank the noble Lord, Lord Bourne, for the clarification at the start of his contribution and for the information that he has provided to the House today. Generally, his remarks are very welcome and I thank him for them. I also thank him for his personal support in getting the Bill on to the statute book to correct an error in the Housing and Planning Act 2016. As I have said before, it is not a good piece of legislation—I think it is an example of “act in haste and repent at leisure”. There have been one or two other problems with that legislation, as the noble Lord knows. I am very happy to support these amendments.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, Amendment 6 raises the issue of victims of domestic violence being charged a fee to provide evidence by way of a letter or some other acceptable form of confirmation to the authorities that they are a victim of domestic violence. That fee can range from £75 to £100 or even more. I think that it is completely wrong.

Certainly some GPs charge this fee. I accept that it is a minority of GPs, but it is wrong for any GP to charge it. I raised the issue both at Second Reading and in Committee, and I do so again today.

When the amendment was discussed in Committee, I had support from noble Lords around the House, and I am grateful to all noble Lords who spoke in that debate. I read again yesterday the response of the noble Lord, Lord Bourne of Aberystwyth, to the debate in Committee. He agreed with me that charging a fee to a victim of abuse who is seeking evidence of their abuse to access a service is,

“far from an ideal situation”.—[Official Report, 24/1/18; col. 1058.]

I would go further than that and say that, in 2018, when domestic violence is centre stage—no longer an issue not talked about but out in the open, with perpetrators rightly condemned and brought to justice for the disgusting crime that it is—to charge victims a fee to provide evidence to prove that they are a victim so that they can get help is unacceptable.

The good news that the Minister gave the House the last time he spoke on the issue just does not go far enough. I note that the noble Baroness, Lady Bertin, has tabled a Question on domestic violence that will be answered in the next day or two. I will raise the issue again if I can get in at that Question Time.

If you have been a victim of a crime and been beaten, distressed or frightened, it is not good enough to say that you can get around the issue of a fee by putting in a subject access request for your medical records. I have no idea what you would do with your medical records: I assume that you get a big pile of papers giving all your medical history and stuff. So for me it would be my blood pressure, and I am a diabetic so there would be issues about my feet, but I am not sure that medical records would say that you had been beaten, that you have a cut or that you have been bruised. Would they actually say that you had been a victim of domestic violence? If not, we are again in the situation where you might hand your medical records to the authority who might say, “Yes, it says you have a bruise to the head; it does not say that you have been a victim of domestic violence. You might have fallen over”. So there are some issues even with using the records. Will they actually deliver what the noble Lord says?

I think we should be very clear that no victim should ever be charged for a letter or any other form of evidence to say that they are a victim of domestic violence. We need to ensure that that happens. I accept that it is about the doctors’ contract and I am pleased that that is going to be reviewed in April, because it is certainly an issue. I accept that it is the Department of Health, not the noble Lord’s department, but this is an issue that we cannot let go: it is totally wrong that anyone is charged a fee to prove that they are a victim of a crime.

[Baroness Hamwee]

My Lords, the Minister spoke at the outset of this afternoon’s proceedings about the Data Protection Bill—the Act as it will soon be—and data subjects’ rights of access to information. I share the concerns of the noble Lord, Lord Kennedy, about the extent of notes that doctors may keep. I have no expertise in this area but I know that I can sit in a doctor’s surgery and witter on for seven or eight minutes and it comes out, perhaps, as a reference to a consultant in two lines. I assume that the two lines are much closer to what is kept in the notes than my seven minutes of semi-articulate complaints.

I am also concerned about whether doctors, GPs particularly, will feel able to keep notes about their assessment, which might be just a guess, as to the reason for the injuries which they are considering. Some may, some may not, and some may be concerned about the implications for them if they get it wrong. Again, it is not something that I have come across, but in other walks of life, such as universities, where teachers may keep notes about students’ attainments or otherwise, I understand that there are concerns not to say anything that might come back to bite the writer of those notes. I certainly do not think it is something we can assume will be covered by the data protection provisions that will shortly be coming into effect.

Secure Tenancies (Victims of Domestic Abuse) Bill [HL]

Debate between Baroness Hamwee and Lord Kennedy of Southwark

Committee: 1st sitting (Hansard): House of Lords
Wednesday 24th January 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I apologise to the Committee for arriving so late after amendments to which I had my name, as I was at the Joint Committee on Human Rights. I will not ask the Minister to respond to this, but just put it into the pot. I think he is saying that a person who has been the subject of abuse needs to go and consult a doctor, perhaps, and so get it into the records that advice and assistance has been sought, and then after that ask for the records to be released. I say that because other people involved in this work will look at what has been said and might have comments on it as well as the noble Lord and the Department of Health and Social Care.

[Lord Kennedy of Southwark]

I thank the noble Lord for his response. I am sorry I tabled the amendment fairly late, and will bring the issue back much earlier on Report. I hear what he says about the use of a subject access request to get medical records, and I am sure he is right. But imagine you are a victim of a crime, distressed and being told you need some evidence. Asking for your medical records may not be the quickest way to get it. Then what do you do? Do you take a big file down to the housing office? I see the point he is making but we need to find a simpler way.

I agree with the noble Lord that it is morally wrong that a victim goes to a doctor and is then charged £50, £75 or £100 to have a letter written. That is just wrong. I am pleased with what he said, but we need to go a bit further with this, as it is not right. I will certainly bring the issue back on Report. The noble Lord is right that there are other professions that do something similar, but it is a particular problem with GPs. People have the right to have a note written and not be charged for it. I thank the noble Lord for what he said, and I will happily withdraw the amendment at this stage, but I will raise the issue again on Report.

Data Protection Bill [HL]

Debate between Baroness Hamwee and Lord Kennedy of Southwark

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

[Lord Kennedy of Southwark]

My Lords, I tabled this amendment to keep the issue that I raised in Committee on the agenda. I spoke about it at some length in Committee. I think it is better determined by your Lordships’ House, rather than going off to the other place. I know the Minister has kindly agreed to a meeting. We have not had a chance to have it yet, but we will later this week.

I know that the noble Lord, Lord Hayward, who sits on the Government Benches, fully supports this issue being debated. He, like me, hopes it can be sorted out here by Third Reading, rather than going to the other place. The basic problem is that provisions in the Bill potentially conflict with legislation in respect of elections and other matters already on the statute book. I went through those in Committee. I am sure we do not want to pass legislation that conflicts with existing legislation, but we risk doing that here. That cannot be right. What political parties, campaigners and politicians need—and certainly what the regulators need—is crystal clear legislation and regulation that they can apply. To pass something that is in direct conflict with the Representation of the People Act would be unwise. We need to have our meeting later this week and I hope we can bring something back at Third Reading. These are important issues that we need to get right to ensure that all legislation is working together. I beg to move.

[Baroness Hamwee]

My Lords, I am very glad that the noble Lord is keeping this on the agenda. I had a note to ask what was happening about the meeting to which lots of people were invited at the previous stage. I do not believe that we have heard anything about it. This is not a whinge but a suggestion that it is important to discuss this very widely.

I find this paragraph in Schedule 1 very difficult. One of the criteria is that the processing is necessary for the purposes of political activities. I honestly find that really hard to understand. Necessary clearly means more than desirable, but you can campaign, which is one of the activities, without processing personal data. What does this mean in practice? I have a list of questions, by no means exhaustive, one of which comes from outside, asking what is meant by political opinion. That is not voting intention. Political opinion could mean a number of things across quite a wide spectrum. We heard at the previous stage that the Electoral Commission had not been involved in this, and a number of noble Lords urged that it should be. It did not respond when asked initially, but that does not mean it should be kept out of the picture altogether. After all, it will have to respond to quite a lot of what goes on. It might not be completely its bag, but it is certainly not a long way from it.

We support pinning down the detail of this. I do not actually agree with the noble Lord’s amendment as drafted, but I thank him for finding a mechanism to raise the issue again.

Data Protection Bill [HL]

Debate between Baroness Hamwee and Lord Kennedy of Southwark

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

[Baroness Hamwee]

My Lords, the Minister has just proved a point that I made to a colleague who asked me whether I could explain all my amendments, and I said, “If I don’t, the Minister will”. Let us see what the Constitution Committee has to say, as I take its concerns seriously. To dispose of one small point, I accept what she says about the “timelessness”, which I think was the word she used, of certificates. I accept that some must always apply, but perhaps it is a point that the Government can take into account when thinking about publication of certificates whose relevance has—“expired” is probably the wrong term—passed.

I am still concerned about what is meant by “defence purposes”. The Minister referred to civilian staff. I cannot remember what the object was in the sentence, but we all know what she means by civilian staff. To take a trite example, can the Minister confirm that in “defence purposes”, we are not talking about records of holiday leave taken by cleaners, secretaries and so on working in the Ministry of Defence? “Defence purposes” could be read as something very broad. I will not ask the Minister to reply to that now, but perhaps I can leave the thought in her head.

Finally, I do not think that the right of appeal provides the same protection as applying oversight from the very start of the process. We have had that debate many times, but I shall leave it there for now. There is quite a lot to read, so I am grateful to the Minister for replying at such length.

[Lord Kennedy of Southwark]

My Lords, I thank the Minister for her response, which was very detailed. It was helpful to the House to get it on record. These are serious matters. The rights of the data subject must be protected, but equally there are issues of national security, and we must get that balance right. The House has been assured that we will get the balance right, which is an important part of our work here today. I am very pleased with the detailed response, and I have no issue with it whatever.

I shall read Hansard again tomorrow, as these are very serious matters, to fully take in all that the Minister has said. At this stage, I am happy to withdraw my amendment.

--- Later in debate ---

[Baroness Hamwee]

My Lords, Amendment 133ZL is an amendment to Clause 42. Clause 43 deals with a data subject’s right of access. The onus is on the data subject to ask whether their personal data is being processed. If so, they have a right of access, although there are provisions about restrictions and the controller must tell them.

We have already touched on how you know that you are a data subject. The amendment would place an obligation on the controller to tell you. I appreciate that there would be considerable practical considerations. However, in a different context, time and again during the passage of the Bill we have heard noble Lords express surprise about what organisations know about each of us. It is irritating when it is a commercial organisation; it is a different matter when it is a law enforcement body.

Amendment 133ZM is a way of asking why the information to be given to a data subject under Clause 42(2) is limited to “specific cases”. Is this is a bit of the narrative style that I referred to earlier? Restrictions are set out later in the clause. What are the specific cases to which the controller’s duties are restricted? Should there be a cross-reference somewhere? The term suggests something more—or maybe something less—than the clause provides.

Amendment 133ZN takes us to Clause 42(4), which refers to the data subject’s “fundamental rights”— this phrase is used also in a number of other clauses. My amendment would insert references to the Human Rights Act and the European Charter of Fundamental Rights, seeking not to reopen the argument about the retention of the charter but to probe how fundamental rights are identified in UK law. It is not an expression that I recognise other than as a narrative term. This is fundamental—if noble Lords will forgive the pun—to my questioning and the workability of all this.

On Amendment 133ZP, the same subsection refers to an “official” inquiry. I know what that means in common sense—in human speak, if you like—but what does it mean in legislative speak?

Amendment 133ZQ is a cross-reference. I queried what was in the clause and have had exchanges with officials about it. I thought that the Minister’s name would be added to the amendment. I would have been very happy if the correction had been made quietly, but apparently that was not possible. So the drafting is not mine, but it corrects a mis-drafting—would that be a gentle term for it? At any rate, that is what the amendment is about. I beg to move.

[Lord Kennedy of Southwark]

My Lords, the five amendments in this group are all in the name of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. I should say at the start that I am not convinced by Amendment 133ZL and I look forward to the response of the Government. I am not sure that it is proportionate in respect of law enforcement processing. I had concerns about it before the debate and I have heard nothing to change my mind.

Amendment 133ZM widens the scope of the provisions and I am content with that. I am interested to hear from the Government why the three words to be deleted are so important: perhaps they can convince me of the merits of having them in the Bill.

Amendment 133ZN is proportionate and I happy to support it. I do not support Amendment 133ZP and, again, I have heard nothing yet to convince me otherwise. I await a response from the Government. Amendment 133ZQ seems proportionate to me in respect of the data controller being able to record reasons to restrict provision of information to a data subject and the reasons for refusing requests.

Data Protection Bill [HL]

Debate between Baroness Hamwee and Lord Kennedy of Southwark

Committee: 3rd sitting (Hansard): House of Lords
Monday 13th November 2017 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, as this amendment involves data provided by local authorities, I should declare my interests as a councillor of the London Borough of Southwark and as a vice-president of the Local Government Association.

Amendment 53 in my name and that of my noble friend Lord Stevenson of Balmacara would delete the first occurrence of the word “substantial” from paragraph 17(2) of Schedule 1 and Amendment 54 would delete its second occurrence from the same provision.

Healthy-functioning political parties are a vital part of our democracy. Campaigners and campaigning have moved on a long way from the days of hand writing envelopes to encompass much more sophisticated methods of contacting voters using all available mechanisms.

Political parties and their members need clarity and certainty as to what they are required to do, what they are able to do and what they are not able to do, so that they act lawfully at all times and in all respects. We cannot leave parties, campaigners and party members with law that is grey and unclear, and with rules that mean that campaigners, in good faith, make wide interpretations that are then found to be incorrect, due largely to the required clarity not having been given to them in the first place by government and Parliament.

I am also very clear that political parties are volunteer armies, with people volunteering to campaign to get members of their party elected to various positions in Parliament and in local authorities and to run various campaigns.

I have a number of questions for the Minister. I do not necessarily expect to get answers today but I hope that when he responds he will agree to meet me along with other interested Peers on the matters I am raising. I know that the noble Lord, Lord Hayward, from the Minister’s Benches would certainly like to meet him, and I am sure that the noble Lord, Lord Tyler, would also wish to be involved in those discussions. I hope that the Minister will agree to that. I also think that it would be useful if any such meeting involved officials from the three parties to discuss how we can get this right; otherwise, there will be all sorts of problems for parties, party members and campaigners, and none of us wants that.

Therefore, my questions to the Minister are as follows—as I said, I shall be happy for him to write to me. Will he provide a list of the characteristics or activities that are required for a political party to conduct operations? Does he believe that the terms in relation to political activity in paragraph 17 of Schedule 1 definitively cover the required activities of UK political parties? Will he clarify what constitutes profiling with regard to the activities of political parties? What activities or operations with reference to paragraph 17(1)(c) of Schedule 1 would be considered necessary for a political party? Does he think that the procedure detailed in paragraph 17(3)(a), whereby a data subject can give written notice to require the data controller—in this case, a political party—to cease the processing of their data, is consistent with Section 13(3) of the RPA 1983, where parties hold and process data on the basis not of consent but of being supplied that data by a local authority via the electoral register? Given the regular transfer of registers to political parties, does the Minister think it is practical or enforceable for a party to cease processing the data, which will likely be resupplied by an authority?

Let me make the point this way: take elector A, who instructs the party to stop processing their data, and the party complies. But the party then gets given data from the local authority in the next round, and elector A’s information is included. As soon as the party processes that data, it will technically have infringed the law. This is very complicated and it would be useful if the Minister’s officials could meet people interested in this area and come back to us. Whatever we end up with following this process, it must be consistent and work, and it should not bring into conflict two different Acts of Parliament. I beg to move.

[Baroness Hamwee (LD)]

My Lords, the noble Lord referred to the rules as a bit grey and asked for clarity for the volunteer army. I should declare an interest as a foot soldier in that volunteer army.

The noble Lord’s request that party officials should be involved in this process is a good one—I would have thought they would have been. The Minister should be aware of my first question as I emailed him about this, over the weekend I am afraid. Has the Electoral Commission been involved in these provisions?

The noble Lord mentioned the electoral register provided by a local authority. My specific question is about the provision, acquisition and use of a marked electoral register. For those who are not foot soldiers, that document is marked up by the local authority, which administers elections, to show which electors have voted. As noble Lords will understand, this is valuable information for campaigning parties and can identify whether an individual is likely to turn out and vote and so worth concentrating a lot of effort on. I can see that this exercise could be regarded as “campaigning” under paragraph 17(4) of Schedule 1. However, it is necessary, although I do not suppose that every local party in every constituency makes use of the access it has. It is obvious to me that this information does not reveal political opinions, which is also mentioned in the provisions. I would be grateful to hear the Minister’s comments. I am happy to wait until a wider meeting takes place, but that needs to be before Report.

I want to raise a question on a paragraph that is in close geographical proximity in the Bill—I cannot see another place to raise the issue and it occurred to me only yesterday. Why are Members of the House of Lords not within the definition of “elected representatives”? We do not have the casework that MPs do, but we are often approached about individual cases and some Peers pursue those with considerable vigour. This omission—I can see a typo in the email that I sent to the Minister about this; I have typed “mission” but I meant “omission”—is obviously deliberate on the part of the Government.