Product Regulation and Metrology Bill [HL]

Earl of Lytton Excerpts

Committee stage
Wednesday 27th November 2024 Grand Committee

Moved by

[The Earl of Lytton]

46: After Clause 2, insert the following new Clause—
“Construction product safety: regulations and requirements(1) Within twelve months of the passing of this Act, the Secretary of State must, by regulations under section 1, make provision to reduce risks as defined in section 1(4) presented by construction products.(2) For the purposes of this section, construction products include, but are not limited to, any components used in the construction of buildings, such as external cladding.(3) Within twelve months of the passing of this Act, the Secretary of State must also make provision about construction product requirements by regulations under section 2.(4) Regulations under subsection (3) must set out requirements for the production, use, marking, marketing, testing, approval and provision of information (including information about risk) of construction products.”Member's explanatory statement
This amendment intends to probe whether the Secretary of State will use powers under sections 1 and 2 to regulate products used in construction.

[The Earl of Lytton (CB)]

My Lords, members of the Committee will be aware that there are concerns relating to the suitability and safety of construction products, especially in the light of the Grenfell phase 2 report, and will know my professional interest in this area.

First, I pay tribute to the clerks in the Public Bill Office for their help in drafting this amendment, although its objectives and the rationale behind it are entirely my responsibility. I consider that the amendment speaks for itself in probing the Government’s intentions and resolve in bringing construction products specifically within the Bill’s scope, although they are not excluded, either by the Long Title or by the matters listed in the Schedule. My underlying purpose is to clarify this Bill’s specific focus in the objective regulation of a construction-related product’s inherent characteristics rather the nature of its use, particularly in combination with other products. To put it another way, it is concerned with the regulation, testing, certification and marketing of products for their specific stated use and application—namely, the aims of the Bill.

The British Board of Agrément—the BBA—is one of the main industry certifying bodies for construction products. In virtually all the BBA certificates I have looked at, it is made clear that the approval is for the specific use and application as presented. This is logical because behind every approval is an assessment or test of some kind that will be specific as to the proposed use. However, we know from the Grenfell phase 2 report how things can be misrepresented. Of course, none of this prevents misuse of some sort, or abuse, but it starts to clarify responsibility as applying to those who have true agency in the specification and use of products, especially where fire safety is concerned. I hope this gives the Minister an opportunity to confirm that, so far, I have got this right.

At the meeting with the noble Lord, Lord Leong, and officials, for which I thank him, it was suggested that while the provisions of the Bill cover construction products, in all probability any regulations would be made under a different legislative provision, such as the Building Safety Act 2022—so I looked in that Act for the word “regulation”. I got 650 hits, which sounds a bit like Henry VIII on steroids, I am bound to observe. I alighted on paragraph 10(1) of Schedule 11 to that Act which states:

“For the purposes of this Schedule, “safety-critical products” means construction products which are included in a list contained in construction products regulations”.


It is getting a bit circular, I suspect. Sub-paragraph (2) states:

“A construction product may only be included in a list under sub-paragraph (1) if … in the view of the Secretary of State any failure of the product would risk causing death or serious injury to any person”.


I would be grateful if the Minister could confirm that I am right in believing that this is the relevant regulation-making measure that might be used in the Building Safety Act to implement some of the provisions of this Bill, if they are not implemented directly. If so, it has to be noted that the Building Safety Act relates to critical life-safety risks to persons, first and foremost. The Bill does not use that metric, so I consider that the relationship between this Bill and the BSA, for example, needs further clarification.

It has long been my professional assessment that if a building is robust, occupant safety is likely to be assured as well, but focusing on critical fire risk which interests itself only with occupants’ risks consigning them to significant risks of an emotional and financial nature if the building lacks durability and is effectively considered expendable. In terms of human life, that is absolutely the right approach, and I get that, but in terms of mercantile practice and peace of mind, it is a philosophy with gaps, especially if the general Building Safety Act approach is one of proportionality or tolerable risk—although I question by whose objective standards those might be measured, but that is another question.

So if I am correct, even allowing for the point that a building is not “product” as a term of art, why regulate such an important matter as construction products to be used in a residential block via different standards as compared with, say, those for a fridge-freezer or a washing machine? As set out in Clause 1(4)(c), we are concerned with a product that could “reasonably be foreseen” to cause damage to property. How is that, in the case of buildings under the BSA, a proportionate or tolerable risk to life? In the Government’s view, does the latter include the former? If so, I would be delighted to get confirmation of that; it is something that I tried to get hold of right the way through the then Building Safety Bill’s time before us. If not, how does the BSA afford the implementation of product safety in construction products?

Note if you will that the assemblage of products and processes used as someone’s home represents their place of safety. It is often their largest investment; it is also often incomparably more valuable an entity than most consumer products, both to them and in market terms. So standards and regulation matter very much. I invite the Minister to enlighten the Committee on this apparent legislative inconsistency.

Had this amendment been debated earlier in the evening, I might have been tempted at this point to have a little rant about British Standards being set behind a paywall—as well as the invidious nature of that when they are also embedded in regulation; the regulation is open source but the BS is not—but I will leave that matter in part to one side for the moment. I appreciate that some of the points I have mentioned go beyond what I discussed in the meeting with the Minister so, if he is unable to answer them right now, perhaps he could write to me before the next stage of the Bill. I beg to move.

[Lord Fox (LD)]

I will briefly respond to the noble Earl. He is right to raise this issue, which is clearly important; we look forward to seeing how the Government respond to it. There are serious issues that need to be addressed somewhere. As has been observed by the noble Lord, Lord Sharpe, and others, the open nature of this Bill offers an opportunity for things like this to be properly discussed and to be, if not solved in this way, perhaps solved in another way.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is very good to respond to this debate. I am delighted that the noble Lord, Lord Fox, sees that there is some advantage in the way that we have drafted the Bill.

I thank the noble Earl, Lord Lytton, for raising what is a really important matter. We all recognise that there are failings in the system by which construction products are tested, assured and made available for sale. The noble Earl described his amendment as probing whether the Government are prepared to use the powers in Clauses 1 and 2 to regulate products used in construction. The noble Earl has huge professional expertise. He referred to the BBA and the specific approval given but warned of the risk of misuse; I very much take that point.

The straightforward answer is that we think this issue is very important. We intend to bring forward robust regulatory reforms in order to provide confidence in the construction products regime and to ensure that only safe products are used in buildings and infrastructure. To that end, we also intend to ensure that the testing and assessment of products’ conformity must be undertaken by those who are competent, impartial and effectively held to account. We have committed to working with the sector on system-wide reform, including examining the institutions that play a key role in the construction products regime, so that businesses and, in particular, consumers can have confidence in the products and services they purchase. The proposed new clause to be inserted after Clause 2, through the noble Earl’s Amendment 46, would place a duty on the Secretary of State to use the powers and to make provision for construction products regulations within a year of Royal Assent of the Bill.

I turn now to the Building Safety Act 2022, about which the noble Earl made some interesting points. That Act already includes powers to introduce construction product requirements and regulations. We are exploring how best to use those available powers, including their sufficiency—I take his point on that—as part of considering system-wide reform. He will know that since the Grenfell tragedy in 2017 some action has been taken on construction products, but we know that more needs to be done.

In December 2018, regulations came into force that banned the use of combustible materials in and on the external walls of buildings over 18 metres. The national regulator for construction products was established in 2021 and leads on market surveillance and enforcement of construction product regulation across the UK.

The Government extended the period of recognition of CE marking for construction products in September this year to give the industry sufficient certainty to support supply chains and to allow time to address the inadequacies across the wider construction products regime, but we recognise that this action is piecemeal and does not go far enough. We have confirmed that we will respond to the Grenfell inquiry within six months. We are also committed to bringing forward proposals for system-wide reform of the construction products regulatory regime.

I have listened very carefully to the noble Earl’s analysis of the Building Safety Act and his suggestion that it is not sufficient for our purposes. We are considering this and I will write to him in some detail about the points he has raised. But to be fair to him, I have to say that this Bill does not specifically exclude construction products and that there could be an opportunity to use the Bill powers in the future should we discover that the Building Safety Act 2022 may be insufficient.

I hope that he will accept this as a positive response to the issues he has raised.

[The Earl of Lytton (CB)]

My Lords, I am very grateful to the Minister for that reply and I am certainly prepared to accept what he says in relation to the Government’s intentions. I will need to consider very carefully what he has said, particularly if he is writing to me—I am grateful for that offer. I will consider things in the light of that.

Without further ado and given the hour, I simply beg leave to withdraw the amendment.

Amendment 46 withdrawn

Public Order Bill

Earl of Lytton Excerpts

2nd reading
Tuesday 1st November 2022 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, I believe that it is the duty of the person finishing off the speeches by the many Back-Benchers who have spoken to somehow entertain. I fear that I am going to disappoint. However, I will admit to the fact that Lady Constance Lytton was the younger sister of one of my ancestors—my grandfather—and that, in another part of the family, my great-grandfather Wilfrid Scawen Blunt was imprisoned in Ireland for daring to have the temerity to defend the Irish tenantry against the eviction by their landlords. He went to Kilmainham Gaol, which was a tough old place. I therefore stand before you as tainted goods. I am bound to say that it follows that my sympathy tends towards the last resorts of protest and demonstration, irritating and disruptive though those actions may be.

I can understand what it is like to not be heard or to feel you are not, and even to be consciously ignored or confronted with what might be described as a pitifully limited outcome—targets, policy objectives, pious words, but precious little action. That lies behind some of what we are dealing with in our democratic processes, because it is almost as if that particular process and forum is passing a sector of society by. They do not feel that they have a voice in that, and that is our problem.

My email briefing suggests that the voices particularly of young, worried and committed citizens are not being heard—or, at any rate, not resulting in any appropriate resolve. This might suggest that the current arrangements need to be adjusted to accommodate additional platforms for dialogue and concomitant response, rather than seeking to aggregate powers to the Executive at the price of reduced freedoms for the people. If, as I am told, there are growing barriers of mistrust and disenchantment with party politics, then we have a duty to be more open-minded and take a more positive stance.

It is not as if climate concern demonstrators, for instance, are not amply reinforced by report after report from national and international climate change expert committees, especially if the 1.5 degree global warming target is a train about to leave the station. Even something as basic as the immediate banning of non-recyclable plastics seems beyond our wits to implement, and regulators have not prevented raw sewage discharges into inland and coastal waters. So where are the protections? That is the question that is being asked.

There is a dialogue to be entered into here, and if the place for that dialogue is not to be this Parliament or some other effective platform then the inevitable outcome is demonstration and direct action. Noble Lords posed the question about the degree to which clamping down would result in deteriorating outcomes. I associate myself with that point: better engagement is key.

I accept that the right to demonstrate must be exercised reasonably, but I do not see where the overriding need is for these additional measures. Are they proportionate and will they be effective? As far as I am aware, there has been little or no post-legislative evaluation of the measures we already have in law, particularly those most recently passed under the Police, Crime, Sentencing and Courts Act. If they are now muddled and confused then we need consolidation and clarification, not to extend things on to the statute book.

The police, with due respect to noble Lords who have that background, may well be happy to have additional powers: what organisation vested with statutory authority and a sense of its own noble purpose would not—but will then doubtless follow it up with a demand for additional resources? But essential need is the test here, not a desire for further aggregation of power. That said, our police forces generally have a very good track record of dealing with demonstrators, and particularly of distinguishing the violent anarchist from the vocal activist. My sense, reinforced by what I have heard in the House today, is that we have enough laws to enable them to do their work and to distinguish legitimate protest from the subversive undermining of society. Adding the measures in this Bill could risk alienating police and people, and indeed dividing society in ways that I suggest are more associated with authoritarian regimes elsewhere around the globe.

I want to be sure that this is not some attempt to snuff out legitimate questioning of government policies, or the Government insulating themselves from difficult questions, but some of the processes in the Bill—the dilution and reversal of the burdens of proof, the blanket application of certain measures and woolly definitions—seem a bit Orwellian in scope and intent. Some of the details and definitions are incredibly vague and open to arbitrary interpretation. The provisions for stop and search without reasonable suspicion are extremely troubling. I am not an expert in this field but my instincts are to reject these provisions, because increasingly oppressive tactics in the name of the state merely engender a similar response from elements of society. I want to break that link.

There is one last thing. Other noble Lords have mentioned that this country has a long tradition of tolerating dissent and responding to justified demonstrations, and an international reputation for freedom of speech, fair lawmaking and justice via an independent judiciary. Perceptions matter. We need to operate proportionately. We speak as a nation in support of basic democratic rights in places such as Hong Kong, for justice in the face of oppression in Myanmar, for women who suffer discrimination in Iran, in support of Black Lives Matter in the United States, and against religious, sectarian and racial oppression everywhere. Yet here, in 2022, we are come to what I can only describe as this disproportionately framed Bill. I simply ask myself: what compels the Government to propose these measures at the expense of trust, long-established custom, and our nation’s reputation and credibility on such slender justification?

Domestic Abuse Bill

Earl of Lytton Excerpts

Report stage
Monday 15th March 2021 Lords Chamber

Stalking is a serious crime that is currently underreported and under-prosecuted. Figures for 2019-20 from the Office for National Statistics reveal that there were only 3,067 charges for stalking offences, let alone convictions. I hope that my noble friend will take very seriously the two amendments before us and that she will consider the reservations I have expressed to ensure that we have the best legislation that is fit for purpose, either through this Bill or in subsequent Bills. I believe that this would be best addressed either through the amendments before us or in a government amendment, if my noble friend was minded to bring one forward in due course.

[The Earl of Lytton (CB) [V]]

My Lords, I am pleased to support these two amendments. Many of the points that I would have made have been covered much more eloquently by others, so I shall try to be brief.

My first point is that we are not even accurately recording stalking and other domestic abuse cases. There have been consistent failures in this respect: apparently no common form of data recording is being applied, so flitting from one police area to another seems to be the workaround of choice for the serial perpetrator. That really has to stop.

Secondly, even when incidents have been reported, and one assumes recorded, they are not being followed up. The problems around information sharing have been voiced widely by other noble Lords, and I agree with them.

Thirdly, it is therefore not surprising that multiagency attempts to deal with this issue have not been sufficiently effective. I will pause to applaud the many instances of good and effective work being done in this field, but it is not universal and domestic homicide reviews have pointed out consistently how earlier and/or effective intervention could and should have been made, but was not. There may be multiple reasons for this: differences in available skills, divergences in policies and priorities, sectoral protocols, funding streams, management or policy direction, and gaps between policy and operational decisions. There may also be a deficit in accountability on the latter point, not only in the police but in other public institutions. Perhaps no one is in overall charge, a point that has been made by the noble Baroness, Lady McIntosh of Pickering, and others. Even if there was, as matters stand, funding and co-ordination would remain questionable.

Further than that, as noted by others, the provision for perpetrators is utterly inadequate—although I appreciate that the Government now appear to be minded to start addressing this.

At Second Reading I pointed out the work described by the Sussex police and crime commissioner about the cost-benefit of dealing with perpetrators. This is the critical point of this group of amendments: the proper identification, assessment, monitoring, management and application of therapy to perpetrators is cost-effective and of lasting general societal benefit. My information is that, while some perpetrators may be psychopathic and incurable—with apologies if I have used the wrong term—many are themselves suffering from deep-seated inadequacies that can and should be addressed.

Amendment 73, which has been put forward so ably by the noble Baroness, Lady Royall, addresses the need for a coherent approach. If I have any reservations at all, it is that it may not go far enough, which might have been the point behind the speech of the noble Baroness, Lady McIntosh.

Amendment 81, which is specifically about perpetrator strategies, has been spoken to eloquently by the noble Lord, Lord Strasburger. I agree with him for all the reasons he has given. He covered everything that I would have addressed, and more besides. This needs to be the stuff of a national network to which any court in the land can effectively refer the convicted and in which those who want to change their ways voluntarily may also participate. The programme would have to be coherent and delivered to consistent standards. We should aim to rehabilitate offenders and those who may not yet be in the criminal system. I noted with satisfaction that the noble Baroness, Lady Royall, did not advocate locking up and throwing away the key, which has been the subject of some of the comments that I have received from outside the House.

The noble Lord, Lord Strasburger, noted the many indicators that can and should be picked up to facilitate early intervention. So, despite all the shortcomings that I recognise, I would simply remind noble Lords of the research done by the University of Manchester and others: it is not that we cannot afford to deal with this resolutely but that we cannot afford not to. The amendments get my wholehearted support and, if it comes to a Division, will get my vote.

Domestic Abuse Bill

Earl of Lytton Excerpts

Report stage & Lords Hansard
Monday 8th March 2021 Lords Chamber

[Lord Lucas (Con) [V]]

My Lords, as one would expect, that was a fascinating contribution. In some ways, it answers a lot of my questions. I am completely behind the purpose of this amendment. To my mind, as someone who is experienced but not expert, there is nothing about the phrases in Clause 1(3)(c) and Clause 1(3)(e) that naturally covers alienation behaviour. If one were to describe this in plain English, neither of those concepts would comfortably accommodate controlling behaviour which by its nature takes place remotely. Once you have got into the business of alienation, the two parents, typically, are not together. It is difficult to see what element of control or coercion can be exercised by alienation or how, in the context of domestic abuse, the wide phrasing of

“psychological, emotional or other abuse”

could certainly be construed as covering alienation. I hope that the Government will make it clear to me and the public in general, by what they say and do outside the Bill, that alienation absolutely is covered. But I need to see that in clear and unambiguous terms.

[The Earl of Lytton (CB) [V]]

My Lords, my support for this amendment comes without the personal experience of the noble Baroness, Lady Meyer, or the legal expertise of the noble and learned Lord, Lord Mackay of Clashfern. Like him, I hope that this amendment is unnecessary in reality. I cannot proceed without paying tribute to the noble Baroness for her unstinting efforts to ensure that alienation of children by one parent against another is accorded its proper place in discussion of the Bill. Her efforts and those of the noble Baroness, Lady Altmann, have been inspirational.

My concern throughout is for the protection of children and intervention in abusive situations at as early a stage as possible to ensure that their life chances are best fostered. It is well understood by psychologists that perpetrators of controlling and coercive behaviour will often try to separate their victim from outside contact—from friends, family, religious or social groups and even by preventing the means of communication necessary to seek help. As the noble Baroness, Lady Brinton, said, perpetrators are often the most confident, plausible and convincing of people. Their victims, by comparison, are often confused, anxious and timid. Both may have deeper attachment issues.

Here we are concerned with a different direction of travel, namely conscripting the innocent as proxies to alienation as part of a contest with a partner. There are doubtless many versions of this, commonly using a weak or compliant adult proxy, but there is one type that warrants special attention and that is the deliberate enmeshing of the children of a relationship by one party as a tool or lever against the other. No other identifiable category so conveniently presents itself as a vehicle for this leverage; no other proxy is so trustingly vulnerable to exploitation or so readily damaged, both in the short and long terms, by such actions.

It may be a self-justification of the perpetrator that it is for the better protection of the children from the other partner, and it merely invites retaliation by precisely the same means. I have mentioned before the perils of a wholly adversarial and corrosive no-holds-barred approach to sorting out these domestic contests. The resident parent is clearly in a strong position to influence, and issues such as access to children and much else may hang on this. The very presence of children may, paradoxically, prevent the sort of clean break that some might wish for. Typically, the children are and remain the biological offspring of both partners. What they receive from ancestors may influence what they pass down to their own offspring in turn. The toxic adversarial circumstances of a relationship breakdown of adults seems capable of rendering them particular harm. Children, as minors, are entitled to the protection of their parents and, where that fails, to the protection of society. In my opinion, society is bound to take note of those impacts on them that might lead to perpetuation of abuse in future generations.

I have been surprised by the degree of antipathy that I have experienced following the parental alienation amendment in Committee. I did not think that this was in the least bit controversial, nor worthy of such sustained criticism. But I have been heartened by the comments of many others—from male and female viewpoints—and I thank them all for the trouble they have taken to write to me.

The first criticism is that parental alienation is not defined, but it is accepted that alienating activity does exist and has long been recognised, so I take it that the use of children as proxies in the process suffers, in this instance, from a liability to multiple interpretations.

Domestic Abuse Bill

Earl of Lytton Excerpts

Committee stage & Committee: 6th sitting (Hansard) & Committee: 6th sitting (Hansard): House of Lords
Wednesday 10th February 2021 Lords Chamber

[Baroness Wyld (Con) [V]]

My Lords, I wish to speak briefly in support of Amendment 167, in the names of my noble friend Lady Bertin and others. Given that we are discussing multiagency strategies, I declare my interests as a non-executive member of the board of Ofsted and a non-executive director of DCMS.

My noble friend gave a powerful and comprehensive speech. It is quite right to push us to change the narrative from “Why doesn’t she leave?” to “Why doesn’t he stop?” What has really come across today is the need for urgency here. My noble friend is right to urge the Government to take a definitive step to help this happen and for it to be reflected in lived experience.

As we have heard, it is completely unacceptable for perpetrators to move from one victim to another when evidence exists that they can be stopped with early intervention. We have a huge bank of evidence showing what works, and I am grateful to all those who briefed me—in particular, the Drive initiative—and to those in your Lordships’ House who have brought their own examples to the Floor. Seeing who follows me in the list, I am sure that we will hear more of those today.

We have heard consistent calls for a national approach to quality assurance, from better-tailored information on data sharing to workforce training, long-term funding and campaigning. The Government have, rightly, emphasised the need for an evidence-based and precise approach to a perpetrator strategy, but let us not drag our heels. The concern that has come across today is that we do not want to end up with the situation where everyone agrees with each other but nobody takes the lead and gets this done. On that note, I very much look forward to the Minister’s response.

[The Earl of Lytton (CB) [V]]

My Lords, I am delighted to be able to support all these amendments but particularly Amendments 167 and 177B. I too pay tribute to all those who have written to me and have frankly explained not only their policy approach but, in the case of individuals, the personal tragedies that they have experienced. I may not have replied to them all, but I have been deeply moved by many of them. My sense is that we all want the same things with this Bill, but some take a more binary approach than others. I try to avoid that in order to look at what I hope is the larger picture and wider criteria, but I apologise in advance if I fail.

My starting point is that with domestic abuse there is already a relationship in which the parties to it mostly come together voluntarily and often remain so in a sufficiently close and prolonged arrangement for children to arrive on the scene. Whatever happens thereafter, there are thus emotional and psychological bonds, some of which remain very important and for children are often formational, even when the original adult relationship has started to go wrong or failed altogether.

The noble Lord, Lord Paddick, set out very many points—too many for me to say, on each individual one, how much I agreed with him. But, however justified in any given case, simply providing for some variant of justice in which perpetrators are branded as intrinsically evil or criminal and resource is focused primarily on due process and the support and protection of victims and survivors does not, in my view, amount to a comprehensive policy response. So I was very glad to learn both from my local police and crime commissioner and again from the Minister herself in a briefing last month about the £7 million provided last year to police and crime commissioners for perpetrator programmes.

The PCC, in particular, was enthusiastic in her explanation of the hugely beneficial effect that even a relatively modest allocation of £150,000 or so could have in pressing forward with a perpetrator programme and the disproportionate advantage that would flow from this intervention as compared with what I might term the “picking up the pieces after the relationship” debacle. Of course, with the largest force areas, the available sum might be a drop in the ocean but, for all that, it is welcome. However, as the noble Baroness, Lady Bertin, said in speaking to her amendment, it is not ongoing but a one-off. That needs to be addressed.

In all this, I have in mind that every perpetrator may cast a shadow over the lives of maybe six victims—at least, that is the factor that I most frequently hear. But, beyond that, it is the pain, the dislocation of lives and the damaging effects on adults and particularly children that concern me, plus the potential for abused partners to fall into some other similarly abusive relationship, just as unaddressed abusive behaviour might simply be allowed to repeat itself in an endless cycle of wretchedness. We know that these things have social and emotional costs—they lurk behind crime statistics, in judicial activities, in the all-too-limited resources of the voluntary and charitable sector, in the workplace, in health outcomes and in children’s long-term attainment.

To intervene and break this cycle, the Bill must now provide for a national framework for perpetrator programmes; it seems to me that the Long Title readily admits it. The Government clearly readily admit it to the tune of £7 million as an admission of need. We have heard much about the architecture of the Bill and I agree that it needs to keep focused, but all the focus in the world will be of little help if it is so narrow that the principal facet of what is, after all, a process involving human relationships of the most complex kind is overlooked. In the Bill we have motive, opportunity and the means to effect change. We should do it.

The noble Baroness, Lady Bertin, referred to current programmes, such as MAPPA, and their success. I suggest that a carrot and stick approach may be better than simply stigmatising perpetrators. I agree with other noble Lords that this is very much a two-way street that we need to look at. She also referred to the need for coherence—for sustainable and reliable funding and the wins all round in the effects on society for perpetrators, victims, victims’ families and survivors that would flow from that. I fundamentally agree.

At the end of the day, we have a relationship, usually between two people, each of whom makes a personal investment in that. Were we to be successful in making perpetrator programmes not only universal according to some sort of coherent framework and leadership referred to by the noble Baroness, but also part of the normal, non-criminalised mainstream service provision, then more relationships might remain functional and a significant proportion of perpetrators might cease to abuse. That would have implications for the frequency and severity of victimhood and victim and survivor experiences.

Amendments 167 and 177B propose in their various ways what is fundamentally the right way forward. This needs to be co-ordinated and driven as a national strategy by Government. I trust that the Minister will see the merits of this and accept that there is now an unanswerable case for adopting the principles behind these amendments.

Domestic Abuse Bill

Earl of Lytton Excerpts

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

[Baroness Grey-Thompson (CB) [V]]

My Lords, I shall speak to Amendments 23, 28 and 62 in this group, to which my name is attached. I thank the noble Lord, Lord Hunt, for moving the first of these amendments and for comprehensively covering their purpose. I draw your Lordships’ attention to my entry in the register of interests in that I am a vice-chair of the Local Government Association.

Amendments 23 and 28, supported by London School of Economics research, make explicit the importance of utilising data and technology in the prevention, reporting and detection of domestic abuse and the commissioner’s important role in supporting this. Examples include encouraging the use of new “silent” methods of reporting abuse—especially important during lockdown—and using artificial intelligence methods, alongside better data usage, to determine the likelihood of repeated abuse.

Amendment 62, again based on LSE research, would ensure that, when the need for a handing out a domestic abuse protection notice was being considered, senior police officers could take into account any previous related criminality and convictions held by the alleged perpetrator. LSE research has shown that previous convictions can be a key indicator of the potential for future incidents of domestic abuse and yet are not currently taken into account when they should be regarded as a priority by any police officer considering handing out a DAPN.

Having access to the criminal history of the alleged perpetrator should be a crucial aspect of decision-making. The amendment would improve data sharing to strengthen the ability of the police to make informed, and potentially life-saving, decisions. It would enable immediate protection for survivors following a domestic abuse incident; for example, by requiring a perpetrator to leave the victim’s home for up to 48 hours.

Currently, there are many significant issues with data sharing that can have serious effects on police forces’ ability to identify, prevent and tackle domestic abuse. Not having a systematic way of recording the same person, victim or perpetrator often means that repeat victims or perpetrators are not spotted or that no action is taken to protect and prevent.

Moreover, police forces do not share data systematically, apart from the police national computer, and that only records charges. Even more concerning, there is no data or systematic information exchange between non-profit and police, so abusers are able to be invisible to the police. That is a particular worry right now, when many people are hidden from sight.

There are many examples of where better use of technology and data can help tackle abuse, including helping to determine what level of danger someone may be in so that they can receive help as quickly as possible, and prioritising police resources and responding to domestic abuse calls accordingly. Using machine-learning prediction will go a long way to supporting those who desperately need it.

[The Earl of Lytton (CB) [V]]

My Lords, I added my name to speak to this group, primarily in support of Amendment 23. I, too, declare my vice-presidency of the Local Government Association. This matter has been magisterially covered by the noble Lord, Lord Hunt of Kings Heath, so anything I say will be a mere shadow of what he and the other speakers have put down.

I, too, received the briefings, both before Second Reading and more recently, from the London School of Economics. I pay great tribute to it for having brought that matter to the attention of Members of this House. At Second Reading, I and other noble Lords—in particular the noble Lord, Lord Dholakia, who has just spoken—commented on the failure of crime recording to pick up many cases, particularly cases of domestic abuse. In defence of those who are charged with the recording of suspected crimes, especially domestic abuse, they are often difficult to identify in the snowstorm of all the other issues that may be involved. Indeed, domestic abuse may not be the primary purpose of the initiating call to the police or some other agency.

Professor Gadd of the University of Manchester, to whom I had the privilege of speaking last week, suggested to me that we need to be much more curious in our responses to crime, and in particular possible abuse. Complex patterns of behaviour and the way in which they manifest themselves are meat and drink to data analysts. It seems to me that if big tech companies can build up accurate pictures of all our various spending preferences and other things, so too can algorithms help us spot and codify trends of abuse.

I do not claim expertise in artificial intelligence, but I know about the need for accurate input data and, of course, we have had problems with police recorded crime. This obviously has not been helped by failings to record offences in, I would say, several police forces over quite a number of years and, of course, the recent loss of data from the police national computer. Even so, the negative prediction rate of 11.5%, which the noble Lord, Lord Hunt, referred to and which the LSE comments on, must be a matter for some significant concern, given the proportion that domestic violence, and repeat behaviour of that, represents as a component of all crime. Any machine-learned means of reducing this, and with it the tragic outcomes that cost this country so much in torment and treasure, must have a place. That is why I support this group of amendments, and Amendment 23 in particular.

However, collecting all the data in the world, as has been pointed out, is not going to be a great deal of use if it is not consistently collated, made available at the right time and shared with people who have a need to see it at the appropriate moment. The sort of checklists that have been referred to under the DASH system—a number of standard questions, consistently recorded, collated and available at the earliest possible stages of a proposed intervention—would, I am certain, be invaluable. There, I am satisfied that technology can help. I do not think that this requires reinvention but better management, oversight and adoption of appropriate IT systems. This would help reduce human errors and omissions. Above all, it is about avoiding unnecessary risk and optimising resources, as has been pointed out. This necessitates good training of call handlers and, as I say, being altogether more inquisitive and interrogative of data and callers to see what is actually lying behind the call. Otherwise, I do not think that we will make the best use of what IT offers. That apart, I believe that these amendments are extremely important in pointing a way forward.

--- Later in debate ---

This amendment is about changing the cultural and social landscape around domestic abuse for the next generation. If we focus only on refuge and not intervention and rehabilitation, especially in the form of psychological therapy for couples, we miss out on a crucial piece of the weaponry for breaking the cycle of domestic abuse.

[The Earl of Lytton (CB) [V]]

My Lords, the noble Baronesses who have spoken to this group of amendments are hugely qualified to speak on the issues of psychotherapy, and none more so than the noble Baroness, Lady Meacher. I have no such credentials, beyond being an observer of the human condition coming from an entirely different field altogether.

My interest in supporting this group of amendments comes from a profound belief that—as the noble Baroness, Lady Meacher, said—rather than picking up the pieces after the event, early intervention before the damage in abusive relationships has reached its most pernicious stages must be an object of policy. Before we get to the stage of cranking into place all legal, prosecutorial, judicial and costly protective paraphernalia, the need to pay attention to psychological problems at a much earlier stage, or indeed as a preliminary step in later stages, seems an unavoidable conclusion. In support of that assertion, I need not go further than the domestic homicide reviews, cataloguing as they do the tragic endpoint of failure to intervene in time, but which consistently refer to much earlier and identifiable opportunities in the downward slope, at which points the problems could and should have been consciously noted and acted upon. Even if they do not end in homicide, I believe that similar trajectories occur in domestic abuse generally from childhood onwards.

To tackle this, we need an understanding of the psychology of victims, perpetrators and children in what is a hugely complex area of motivations, drivers, preconceptions and circumstances, right across gender and age divides, social and economic environments, matters of nature and nurture, and much else. This suggests to me that the discipline of psychology is a golden thread in terms of identifying traits informing decisions, facilitating early-stage support and intervention, and, as the noble Baronesses have said, breaking this terrible cycle of behaviour that the Bill seeks to address.

I recognise that psychological skills are, in any event, far from plentiful, and involve not only time but expense. But I do not believe that it is an argument to discard the appropriate tool on grounds of timing, complexity or cost; nor should we be deflected because, as has been explained to me by others, dealing with substance abuse in parallel with psychological issues—as is so often a combination—requires considerable skills and powers of leadership.

I am glad that the noble Baroness, Lady Meacher, mentioned cost-benefit. It may sound like monetising private misery, but I am absolutely convinced that she is right about the social cost and why these amendments are necessary.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, the noble Lord, Lord McConnell of Glenscorrodale, has withdrawn, so I call the noble Baroness, Lady Burt of Solihull.

Domestic Abuse Bill

Earl of Lytton Excerpts

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

[Baroness Brinton (LD) [V]]

My Lords, I must apologise to your Lordships’ House for not being able to speak at Second Reading. In the 10 years that I have had the privilege of being a Member of your Lordships’ House, I have from the start focused on the despicable behaviour of those who harass, stalk, and coercively control their current or former partners. This Bill recognises so many of the agonies that victims of domestic abuse have faced, whether male or female, including by at last recognising that children themselves can also be victims of domestic abuse and coercive control.

Over those years, we have succeeded in getting much of this behaviour recognised in the criminal system through reforms of the stalking laws and clear definitions of coercive control, but there remain problems in both the family and private courts. I was pleased to hear the noble and learned Baroness, Lady Butler-Sloss, mention again the need for judicial training on this, as what I am going to say reflects the fact that far too few judges have had the training they need to understand these difficult and complex issues. That is why, I am afraid, I am going to disagree with Amendments 2 and 4, despite the moving speech of the noble Baroness, Lady Meyer, and the fact that child abduction can never, ever be right.

Your Lordships’ House has a special role in scrutinising legislation, a duty that it carries out with due care. I am sure that the movers of this amendment are sincere in their belief that such a definition would be helpful, but I and others think that it would not be, principally because parental alienation remains a controversial subject, as previous speakers have mentioned. There is no commonly accepted definition, no reliable data on its prevalence, and a lack of peer-reviewed and robust academic studies to give confidence in any such definition.

It is worth noting that these moves are unanimously opposed by all of the victims’ and domestic abuse commissioners, as well as domestic abuse charities, and I thank them all for their briefings. They tell us that there is worrying evidence that the concept of parental alienation has gained a significant foothold in the UK family courts and is already being used in judgments relating to child safety. Worse, there is also alarming evidence that the fears of false allegations of parental alienation are becoming a barrier to victims of abuse telling the courts about their experience. The Ministry of Justice report, Assessing Risk of Harm to Children and Parents in Private Law Children Cases, published in June 2020, makes that plain.

The report received deeply concerning evidence that fears of parental alienation are directly supressing allegations of domestic abuse. The review received several submissions which highlighted how

“victims were advised by professionals, including their own lawyers, not to raise domestic abuse because the courts would take a negative view of this and it may be used against them as evidence of parental alienation or hostility to co-parenting.”

The strength and dominance of allegations of parental alienation are, I am afraid, now beginning to shape the legal advice being given to survivors of domestic abuse and coercive control.

Among its recommendations, the Ministry of Justice report says that

“the Child Arrangements Programme should incorporate a procedure for identifying abusive applications and managing them swiftly to a summary conclusion.”

and that:

“Fears of false allegations of parental alienation are clearly a barrier to victims of abuse telling the courts about their experiences.”


Inexplicably, the phrase “parental alienation” has been included in draft statutory guidance for the Bill as a form of coercive control, despite not appearing anywhere in coercive control legislation. Will the Minister ensure that this reference to parental alienation is also removed from the draft statutory guidance?

Why are there such concerns about parental alienation on the part of those who are experts in domestic abuse? They are seeing a direct relationship between allegations of parental alienation and potentially unsafe child contact or residence arrangements. Some parental alienation experts recommend dramatic measures to treat this alienation, including a 90-day deprogramming window in which the child is placed with the allegedly alienated parent and is allowed no contact the with alleged alienator. In reality, this means that many children are placed with parents they are afraid of—whether that is rational or not—who are alleged abusers and whom the children often directly state opposition to living with. This is a deeply distressing intervention for the child and the parent who may have lost custody, who is given no knowledge of their child’s welfare during this time.

There are experts whose views I trust, and whom I hope the House will hear. Nicole Jacobs, the designate domestic abuse commissioner, has said:

“I am increasingly concerned about the potential for the idea of ‘parental alienation’ to be weaponised by perpetrators of domestic abuse to silence their victims within the Family Court. So much more must be done to improve the understanding of domestic abuse within the Family Court, which is the single most common issue that victims and survivors contact me about. I have heard of some terrible examples where the Family Court fails victims and survivors of domestic abuse, and addressing these will be a top priority for me and my Office.”


Dame Vera Baird, the Victims’ Commissioner, says:

“The government has now recognised that children are victims of domestic abuse not bystanders and that they too suffer harm from the abusing parent. That cannot now be ignored and their future entrusted to a parent who has already harmed them. Any courts who entertain this notion”


of parental alienation

“will do huge damage to justice and damage to large numbers of children who are already suffering from their abuser’s behaviour. This Bill must not recognise any validity in this groundless notion. In every case about the welfare of children the evidence is what matters. The courts must guard against the well-known phenomenon that they are used as a further tool of abuse by manipulative domestic abuse perpetrators”.

The Women’s Aid Federation of England says:

“Parental alienation is increasingly used in the family courts, but there is a dearth of robust evidence to back up the concept or reliable data on its prevalence. The ‘pro-contact’ culture in the family courts means that parents are expected to facilitate contact, even if they have concerns about safety. It also means that allegations of parental alienation—where one parent is accused of encouraging their child to resist contact with the other parent—can be taken more seriously than allegations of domestic abuse and other forms of harm. Theories of parental alienation should never be accepted without analysis of the impact they have on survivors of domestic abuse and their children.”


It is also worthy of note that, having adopted a definition of parental alienation, the World Health Organization has now agreed to remove any reference to it.

I agree with the concerns expressed in the Ministry of Justice report, by the various commissioners working with victims of domestic abuse and coercive control, and by the organisations supporting victims. I hope that the Minister will also agree that there is no place in this Bill or its statutory guidance for a concept without a robust evidential basis, or one that can be used by perpetrators to continue their abuse of their former partner and children.

[The Earl of Lytton (CB) [V]]

My Lords, I added my name to these amendments because I feel strongly that we are not picking up domestic abuse early enough in the process. Part of that is a failure to identify and become aware of the forms of abusive behaviour for what they are. One of the most important aspects of the break-up of a relationship is the effect on children, as they can be terribly damaged through that process. The noble Baroness, Lady Meyer, has given us a moving description of her experiences, and I pay tribute to all those who have written to me for and against these amendments. I respect what they say.

My strong feeling is that by the time domestic abuse cases get to the courts, views are already polarised, resentments are deep-seated and entrenched, and an intensely adversarial legal system is in play. Anything not proscribed by law seems to be fair game, and the outcomes are all too often a matter of sweeping up the broken fragments of family relationships as tidily as possible.

We know that one of the problems is parental alienation. I accept what the noble Baroness, Lady Brinton, has said; her experience is far and away ahead of mine. One of the reasons it is not picked up at an early enough stage is the absence of an identity that would trigger intervention and appropriate support long before matters came to the formal attention of the police or the jurisdiction of the courts. We know that this is one of the reasons why certain domestic abuse instances are not recorded at all. I acknowledge that the spectrum of such abusive behaviour is enormous, labyrinthine and often a matter of controversy among experts, but signposting this for earlier intervention seems an unassailable point.

I have seen, read and listened to objections to the term “parental alienation”, but lack of definition or labelling—or, for that matter, the awareness that goes with that—does not make the problem cease to exist. It is quite clear that it does. As I just said, I see as one of the problems the nature of the judicial and adversarial process that must be dealt with. I make no criticism of the judiciary, which has to pick its way through enormously complex issues and try to find the best way forward for the parents and particularly the children. It concerns me that, if we do not have a definition, the abuses that have been described and the excuses, particularly of male partners against female partners that the female is indulging in parental alienation of children, will not go away or in some way become less likely.

The noble Baroness, Lady Meyer, suggests that parental alienation is readily identifiable. I cannot speak to that but, from my own observations, I agree. From what I have seen from many who have written to me, it is an identifiable condition. I appreciate that it is complex and multifaceted, but I think we all know, on a results basis, what it means in practice.

This is not just a definition for lawyers and the courts of when things have got to that terrible stage of events when everybody has dug themselves into their positions and every sort of lever and form of manipulation is being used in the cause by one side or the other, but a definition for everybody—particularly upstream of those situations where, as the Domestic Homicide Review has identified, available signs indicated that there were problems which could and should have been picked up. That keeps cropping up. I believe the same is true for parental alienation, as a component in what is quite clearly a larger pattern of abuse.

That is why I support these amendments—primarily because children are caught in the middle here. They are being used as part of the process of leveraging some sort of advantage by one partner against the other. That must stop. It must be identified as offensive, save in circumstances where it is demonstrated that it is being done with the best interests of the child unequivocally in mind—for instance, where there is clear evidence of physical or other sorts of abuse of that nature and something must be done. That is why I support these amendments and have put my name to them.

Domestic Abuse Bill

Earl of Lytton Excerpts

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

[The Earl of Lytton (CB) [V]]

My Lords, I declare my vice-presidency of the LGA. I very much welcome this Bill. It brings forward much needed improvements to legislation and highlights the coercive and controlling behaviour, oppression and violence that form the all-too-familiar pathway of domestic abuse, sometimes leading to homicide. I particularly welcome that it will better identify perpetrators.

Victim non-reporting apart, I share the concern of the noble Lord, Lord Dholakia, that too many instances of crimes, particularly domestic abuse, are either misrecorded or, as in the recent instance of the Greater Manchester Police, not recorded at all. Failure to keep accurate crime records has been a constant criticism over many years, and expert Dr Rodger Patrick, in past evidence to parliamentary committees, considers this to be endemic. Successive reports of Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services have in successive reports highlight this problem. In violent domestic abuse cases, tragic deaths, such as that of Jacqueline Oakes, are the result. UNISON cites other cases in its briefing.

My point is that proper ownership and responsibility for such cases is now needed. We should expect better, and it requires the collaboration of everyone involved, because accurate, shared and appropriately protected information is essential, and fundamental to early detection, intervention and protection of the vulnerable. Will the new commissioner have adequate powers to realign end-to-end processing of domestic abuse cases?

I appreciate that domestic abuse cases are extremely demanding of manpower, resources and specialist expertise, such as in psychology. I have no doubt that they involve some of the most secretive and convoluted aspects of human relationships. I am particularly indebted to Mrs Katy Bourne, the Sussex police and crime commissioner, for briefing me, and I pay tribute to her pioneering work and positive approach in dealing with stalking and creating perpetrator programmes. I understand the point that one perpetrator may give rise to numerous victims, so I agree with the noble Baroness, Lady Burt, that perpetrator programmes are a vital area of investment and should be expanded. Domestic homicide reviews also suggest that better inter-agency collaboration is needed, which evidently is not the case in all areas. We should certainly encourage more local initiatives.

Relationship education in schools on what constitutes normal, healthy behaviour seems to me hugely beneficial in reducing adverse child experiences. Domestic abuse needs to be more visible, with better early-warning triggers. Calls for more resources are numerous and expected, but if we do not manage these resources effectively and imaginatively, then, despite the Bill, we may simply respond to the symptoms when violence is already evident, acting in haste, with snap decisions made about perpetrator and victim on a victim-first basis, but which in other circumstances might warrant a more nuanced approach. The basic malaise will therefore likely persist, if we are not careful. The Magistrates’ Association is concerned at the imposition of prevention orders with criminal consequences, possibly without either evidence or finding of guilt. I ask the Minister to comment on that.

Academic reviews show that coercive and controlling behaviour, while currently understood to be prevalent among men, especially in domestic abuse in its violent forms, is not the sole preserve of any particular gender, race, creed or economic classification. Understanding a perpetrator’s psychological make-up and the domestic abuse triggers clearly requires great skill, and I worry about hasty fixes and gender assumptions in such circumstances. I note comments that the Bill should be amended to include an offence of non-fatal strangulation, and I look forward to hearing further about that with interest.

To conclude, alongside the Bill, we must make best and most intelligent use of what we currently have and know. I, too, welcome the LSE’s data technology suggestion. As to accurate identification and recording of domestic abuse, perhaps we should measure future performance by reference to criteria that are not reduced to the art and presentation of annual crime statistics. The Bill can be improved, but I very much welcome it.

Data Protection Bill [HL]

Earl of Lytton Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 10th October 2017 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, I start by thanking the Minister for the opportunity to meet him and officials earlier today.

I welcome the stated purpose of the Bill. In my mind, it must be sensible to unify and consolidate the law in this area, and to update its application to more recent technologies. Bringing the GDPR into UK law is unquestionably desirable. I have been impressed by the GDPR’s elegance and sense of purpose, following, as it does—or claims to do—the European Charter of Fundamental Rights in 88 pages of self-reinforcing statements of principles.

I cannot go on without welcoming the EU Select Committee’s report, so ably spoken to by the noble Lord, Lord Jay, who I see is not in his place. I think it is a pity that the report did not have its own slot. Despite acknowledging that the Bill fleshes out the regulation to make it member-state applicable, like the noble Lord, Lord Stevenson, I worry about a Bill of 218 pages and an explanatory note of 112 pages, plus a departmental pack of 247 pages to deal with it all. That all adds to the complexity. I admit that the GDPR conceals its highly challenging requirements in wording of beguiling simplicity under the flag of private rights, but it is no wonder that the European Parliament did not want its handiwork contextualised by inclusion in what we have before us. It is not a particularly encouraging start to bringing 40 years of EU legislation into domestic law.

In what I felt was an inspirational contribution, the noble Baroness, Lady Lane-Fox—I am sorry she is not in her place—referred to the tortuous use of language in parts of the Bill. I agree with her—parts of it are gobbledygook that deny transparency to ordinary mortals. She referred also to my direct ancestor, Ada Lovelace, some of whose expressions of mathematical principles, even for a non-mathematician such as me, make a good deal more sense than parts of the Bill.

The Bill sets out to replace the 1998 Act with new GDPR provisions, meaning new and enhanced rights of data subjects for access, portability and transparency, and duties on controllers on specific consent—not by default, it should be noted—procedural audit trails, a more clearly defined regulatory and supervisory framework, and potential for substantially increased fines for infractions. There is enough that is new, apart from public expectations and the revised geometry as between data subject and data controller, which will naturally give rise to a fresh view of precedent and practice.

Consistency of the Bill with the GDPR core principles, as well as the fundamental rights upon which it is based, will be our focus at the Bill proceeds. A lot of organisations will need to review the way in which they are authorised, in their logging of the origins and possible destinations of personal data they hold, as well as the protocols for responding to requests for information from data subjects. I do not doubt that there will be some pitfalls for the unwary. It may no longer be possible to rely on the continuing acceptability and lawfulness of the previous arrangements under which they have operated, nor to second guess with accuracy how regulation and enforcement will unfold henceforward.

So there may be something going well beyond the more benign narrative of updating, modernising and extending the application on its own. There seem to be some particularly uncharted waters here, with the burden of proof as to compliance and adequacy of arrangements being firmly in the lap of the controller on what looks very like a strict liability basis. That alters the geometry of what will be dealt with.

As regards international cross-jurisdictional data— I am thinking of beyond the EU—I wonder how successfully the proposed arrangements will carry forward in the longer term, bearing in mind that the world market contains numerous players who for their own purposes and advantage might not be that keen to match the standards we claim to set for ourselves. Indeed, the construct of ethical data comes to mind, with all the usual caveats previously associated with ethical foreign policy—the noble Lord, Lord Knight, referred to the ethics; I agree with him that there is a strong threat. That would follow a global principle that sits behind GDPR.

The GDPR is hypothecated on the principle of individual compliance of each processor enterprise, so in a data-processing daisy chain across continents the continued tying in to the tenets of the GDPR is an obvious practical problem with some limitations and it should give us cause for reflection, although I have some admiration for the algorithm that the GDPR sets out to create.

I question how the Government view the ongoing processing of more historical personal data, referred to by other noble Lords, when the purpose for collecting it or the basis for any implied or deemed consent either had not been met or should long since have been refreshed or treated as expired. We all know that old data is still sloshing around in the ether, some of it potentially of dubious accuracy, but I merely point to the fact that this is often an ongoing processing operation without beginning or end point or any apparent possibility of amending or deleting records, as mentioned by other noble Lords. The amount of screening needed to ensure accuracy would be vast. I am entirely unclear that this Bill or the GDPR will improve things for those data subjects for whom this sort of thing can be harmful. I am not thinking just of social media. How will legacy data be dealt with, especially as it does not seem to have been entirely successfully corralled by the 1998 Act or by all other member states under the 1995 data protection directive? I see the correction of that as one of the fundamental principles behind the GDPR—it is the trip wire which has been put there deliberately.

I have concerns about some of the “get out” provisions included in the Bill. The first is the “too difficult” excuse; businesses already use this as a blocking measure. How does one get round the argument that it is too difficult to extract the individual personal data despite knowing that it is the targeted agglomeration of such data, relating to a natural individual, that is the outcome of the processing? The second is that the request is regarded as vexatious. This of course can be concocted by the simple expedient of being evasive towards the first two requests and from the third onwards treating it as repetitive or vexatious—it already happens. I would like reassurance from the Minister that the basic individual rights promised under the GDPR cannot be so circumvented.

The third excuse is “too much data”, referred to by other noble Lords; in other words, there is a lot of personal data held on an individual data subject. Here, there is a provision that the data controller may decline to give information if the precise nature of the data sought is not specified. My impression is that failure of a data subject to specify allows the controller to become unresponsive. If that is the intention, it seems to me to fail the broader test of article 14 of the GDPR, the basic premise of which is that the data subject is entitled to accurate and intelligible information.

It cannot be assumed that the data subject already knows what the scale and nature of the data held actually are or precisely who holds it, although it is clear that the GDPR gives an entitlement to this information. It must follow that, at very least, the controller, in making his “too much data” response, has to identify the general nature, categories and type of data held about that person. I invite the Minister to comment on what is intended. I concur very much with the point so eloquently made by the noble Baroness, Lady Lane-Fox, on the asymmetry of technical knowledge, resource and political clout as between the data subject and the controller, particularly when set against the practical challenge of extracting individual personal data in response to a formal request.

I was reminded of something only yesterday, as a result of a question as to whether a person was or was not at a certain place at a certain time, which was averred by a complainant in a harassment case who used CCTV footage they had created themselves. It was pointed out that the person against whom the complaint was made said they were somewhere else, in a retail premises covered by other CCTV footage. However, it appeared that the retail premises operator would not release the data because it also contained images of other people and there were, accordingly, privacy issues. What is the balance of rights and protections to be in such a case, where somebody faces prosecution?

That leads me to the issue of data collected by public bodies and agencies. I do not think it is generally understood what personal data is shared by police, social services, health bodies and others, some of them mentioned by the noble Lord, Lord Marlesford. Indeed, I am clear that I do not know either, but I believe that many of these agencies hold data in a number of different forms and on a variety of platforms, many of which are bespoke and do not readily talk to other systems. The data are collected for one purpose and used for other purposes, as the noble Lord, Lord Knight, rightly observed. It is on record in debates in this House that some of these bodies do not actually know how many data systems they have, even less what data—whether usable, personal, relevant or accurate, as the case may be—they actually contain. How does one enforce that situation? Some of these databases may not even be operating with the knowledge of the Information Commissioner. There will be an expectation that that is going to be tightened up.

A considerable measure of latitude is afforded to the processing of personal data in the public interest. I will be very brief on this point. I would not rest easy that we have an adequate separation of genuine public interest from administrative convenience and I looked in vain for clarification as to what public interest would amount to in this context. I have to say that I am even more confused than I was when I started. In the longer term it remains to be seen how the GDPR will work, incorporated into UK law, interpreted and enforced firstly through our domestic courts under the aegis of the EU but subsequently on a twin-track basis, when we will be dealing with it ourselves through the precedents of our own judicial system and the same GDPR will be being looked at in a European context elsewhere.

I want the Bill to work; I want to enable proper business use of data and to empower data subjects, as the GDPR promises, with a minimum of obfuscation, prevarication and deceit. Transparency has not been the hallmark of UK data businesses or government administration in this respect, but without it there is no justice, due process or citizen confidence in the rule of law and it will be corrosive if we do not get this right. However, I do not see any fundamental mismatch between this and best business practice, so I look forward to further debates on the Bill as we proceed.

Policing and Crime Bill

Earl of Lytton Excerpts

Monday 18th July 2016 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, I declare such interests as I have outside the work of this House only in respect of the fact that I hold a firearms licence, although your Lordships will be glad to know that it is not on firearms that I intend to speak today. I welcome the chance to debate the Bill, despite the number of trees that appear to have been felled in order to print it and its associated documentation. It is the next, if not the final, stage in a process set in place by our new Prime Minister when she was Home Secretary, which she undertook with great courage, if I may say so, but it remains unfinished business.

I echo what others have said: our police forces are a vital resource. I pay tribute to the courage of those who serve in them and their willingness to put themselves in danger for the protection of the public, as the noble Lord, Lord Wasserman, said. Their record of interrupting criminal activities is a fine one and I do not believe that the majority of officers are anything other than thoroughly decent, diligent and honest.

The Minister outlined the Government’s intentions, to which I add my broad support. The noble Lord, Lord Rosser, identified a number of undeniably good bits in the Bill. But the fact remains—and this is why I may appear relentlessly critical of a service that I consider so very important—that there are still far too many shortcomings and I do not believe that their causes or frequency have reduced materially. Indeed, I believe it is a cultural matter.

On crime figures, the Office for National Statistics has downgraded police crime records to what I can describe only as near-junk status. On what government Ministers will now base claims in relation to crime trends I know not, when it is clear that whole areas of activity are imperfectly recorded, if at all. I do not regard the misrecording of crime as a trivial matter; rather, as the police themselves might say, I tend to the view that apparently small infractions could be indicators of more serious activity. It certainly has terrible consequences, as illustrated in the Rotherham and Jacqueline Oakes cases. Criminologist Dr Rodger Patrick, to whom I spoke recently, has labelled the latter as a “Nelson’s eye” approach to known issues.

I have been tracking since 2012 the case of a one-time senior parliamentary researcher to a now-deceased member of your Lordships’ House. It involves the South Wales Police area. I have identified a number of elements that I regard as questionable. First, there appears to have been the inclusion without proof of names on a database of persons whom the police—on their own whim—thought might be troublesome, and unregulated sharing of those data with other agencies. The standard force wording, which appears without evidence or caution, reads:

“You should be aware that these details will be placed on an anti-social behaviour database which holds information relating to those involved in such behaviour. This information will be held in accordance with the Data Protection Act 1998 and may be shared with partner agencies if this is necessary to prevent crime and disorder, as permitted by the Crime and Disorder Act 1998”.

This seems to bypass the oversight of the data commissioner and is outside the subject data access system.

Secondly, there appear to have been attempts to coerce a neighbour into a deal that was intended to be prejudicial to another claimant party. I quote from an August 2007 neighbour witness statement in connection with a child constantly kicking balls into the adjoining garden. It says:

“At the time of my meeting with the Police in November 2006 we were advised by the Police that the Claimant was well known to them and that they had had many dealings with him. The Police also advised us that should the Claimant’s accusations continue, his next step would be to contact the local Police’s regional superiors and inform them that he had made several complaints regarding balls going into his garden, and that nothing had been done about it. As a consequence, The Police attempted to pre-empt the Claimant’s next step by offering us a kind of ‘deal’ whereby our eldest son”—

I will not give the name—

“(fourteen years old at the time) would accept a Level 1 ASBO for playing football in our back garden in order that the Police could issue the Claimant with a Level 2 or 3 ASBO. I and my wife were very apprehensive about this ‘deal’ at the time and the whole affair”.

Well they might be. I shared those comments with Dr Patrick and he said:

“This may appear to be a minor incident but I suspect it represents the tip of a very large iceberg; it involves the clearest abuse of non-judicial disposals which is blighting the prospects of citizens and risks the criminalisation of childhood”.

It is also an example of what might be termed in the trade “stitching”.

Next, there was conflation of what was and should have been treated as a civil property boundary matter into a criminal harassment case. There was the unjustified alteration of a charge sheet without the accused’s knowledge, apparently to beef up the case. Here the amendment was to introduce a false reference to violence—highly significant when one realises that the accused was a keen target shooter and that the amended wording would be fatal to his continued holding of a firearms licence. Then there was interference with witness statements and the use of redacted witness evidence. A piece of information that came to me—indeed, I identified it as false—was a bit of photographic evidence used in the criminal proceedings, which had been doctored. There was the manipulation of process, including defying the order of a judge in relation to disclosure, to the material detriment of a defendant’s case. In addition to all this, important documents mysteriously went missing from the court files so that they could not be brought before the judge.

By all these means there was the procurement of a conviction and the imposition of a restraint order of such severity that it prevented the accused defending himself against subsequent opportunistic incursions by the neighbour with whom the original dispute had started. There was a deliberate failure by the police to investigate or prevent such actions; a refusal to investigate instances of potential sabotage of a motor vehicle; and apparent collusion involving bodies such as the City of Cardiff Council and Welsh Water in a manner prejudicial to proper public administration and, in my view, obstructive of investigations by independent professionals and the reasonable interests of a private householder.

I can only speculate on why things were taken to such spectacularly questionable lengths but I suppose it might be connected with the accused’s knowledge of firearms and his detailed research into police corruption, coupled with his publicly challenging some influential local interests through the local police and communities together—PACT—committee. There was certainly motive and opportunity for certain vested interests to want him silenced, and from a police point of view, in the light of the Lynette White, “Newsagent Three” and Sean Wall cases, there was every reason for an interested parliamentarian and his researcher to seek to expose the truth about police actions.

Sadly, this case is not isolated; nor does it affect only small fry or little local neighbourhood spats. I will not reel off my list of previous failings up and down the country, but will point to the further information we now have in respect of Hillsborough and Rotherham; the deliberate attempt by the Metropolitan Police Service to prevent scrutiny which involved shedding documents, as noted in the Ellison inquiry; and the multiagency failings which had fatal outcomes in the Kayleigh-Anne Palmer case. Jacqueline Oakes might still be alive had proper attention been paid to known circumstances and instances of violent abuse. Therefore, ongoing gaming activities in the West Midlands force, which Dr Patrick refers to, cannot be regarded as entirely innocent. Then there was the aptly named “Nick”, the supposedly reliable informant whose allegations—inadequately checked, it appears, by the police—caused several notable people with outstanding records of public service to be implicated in some very serious offences. Indeed, one Member of your Lordships’ House went to his grave with the finger of suspicion still pointing at him, when the police already knew some time prior that there was no credible evidence against him. Therefore, a revised pre-charge bail provision would perhaps make some difference to such matters.

Your Lordships will recall the police raid on a celebrity’s home in which the media had been tipped off previously so that their helicopter was overhead as the police arrived, and that subsequently the chief constable in question appeared before the Home Affairs Select Committee but dodged the question of how the press had known about it before the police arrived, claiming that it was an “operational matter”. This was just one of several celebrities to be poorly treated. As serious as child sexual exploitation and similar crimes may be, they do not justify the methods of a witch-hunt.

This is all totally unacceptable. I note the Committee on Standards in Public Life report by my noble friend Lord Bew, who I think may be lurking behind me somewhere, entitled Tone from the Top, in which it was mentioned that around a third of police forces are under some sort of investigation. That is far too many. It boils down to this: the police have been given non-recourse powers to decide on their own initiative who is the party at fault. In the context of anti-social behaviour and harassment, their powers are near absolute. However, the police are currently ill-suited for such a task. When challenged, there is often cover-up, and obfuscation and blocking measures are put in place; when cornered, their get-out-of-jail card is to claim it is an “operational matter”; and if it involves one of their own or an associate, they quite literally close ranks. These things are not in any way unique to the police, but cultural matters in all sorts of organisations. However, in the police this happens to be of particular importance.

I would therefore welcome the strengthening of police regulation and oversight through the Bill, were I convinced that it was not just rearranging the deckchairs or rebranding. I have long considered that both HMIC and the IPCC are too close to policing themselves, too imbued with police culture and too narrow in their focus. I hope the Bill will put that right and I am glad to see that police-on-police investigation may be set to reduce, because procedurally this fails the standards of independence, objectivity and necessary vigour on behalf of the public. However, I am doubtful whether the proposed complaints handling by police and crime commissioners is the answer, and some PCCs seem to be far too close to their chief constables. Scrutiny across multiagency working seems to be addressed in the Bill, but only by creating multiple scrutineers who must work together. This should long since have been the case but it is precisely what has not been working, so I hope noble Lords will forgive my doubts about that. I therefore advocate tighter measures.

The question of what constitutes “operations” needs to be clarified and updated. While I accept that there should be no political interference in front-line and especially necessarily covert activities, there should none the less be accountability and proper independent scrutiny, even if some of it is behind closed doors. There is also a need to address political influence over police activity through the target culture, which was identified as long ago as 1999, in an HMIC report. Political convenience cannot come before performance of public duty.

This is no time for half measures or tinkering at the edges. So long as public policy does not force effective performance and integrity across the piece, each player will operate to the rules and agendas it makes up for itself. That has to stop. If there is political will, we can fix many of these things in the Bill, and I hope there will be some consensus in seeking to amend it.