Police, Crime, Sentencing and Courts Bill

Baroness Williams of Trafford Excerpts

Lords Hansard - Part 2 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I will endeavour to be brief. This group of amendments includes government concessions to include extra protections on doctor-patient confidentiality and healthcare data. They provide that the powers under the serious violence reduction duty do not authorise the disclosure of patient or personal information by a health or social care authority. We support the amendments in the name of the noble Baroness, Lady Meacher, which, among other things, leave out the uncertain language in brackets in the Bill.

To be a bit clearer about it—although the noble Baroness, Lady Meacher, explained it extremely well, as one would expect—the serious violence reduction duty requires data sharing between bodies, and the Bill currently provides that data cannot be shared if it would breach data protection laws. It qualifies that with:

“(but in determining whether a disclosure would do so, any power conferred by the regulations is to be taken into account)”.

An amendment from the noble Baroness, Lady Meacher, and others would delete the provision in brackets, so data protection law would apply as normal, as it does to medical professionals. A number of noble Lords have referred to other people or organisations who have contact and involvement with that same degree of confidentiality, and professional judgments on disclosure should apply.

The noble Baroness, Lady Meacher, referred to a meeting she had with the Minister and a letter she only very recently received. I assume that is the one dated 7 December. I appreciate the letter and thank the Minister for it but, reading the paragraph that relates to the bit in brackets that the amendment from the noble Baroness, Lady Meacher, seeks to delete, I struggle to understand the argument for having the part in brackets. Why is it necessary?

Why can we not simply leave it, with statements in other parts of the letter that make it clear that data can be shared, where it is lawful to do so, only under the data protection legislation? One would have thought that is surely all we needed to say—not to have something in brackets which I do not fully understand the need for, despite the letter from the Minister. I sense from what the noble Baroness, Lady Meacher, is saying that she too struggles to understand why we need the bit in brackets at all. I have no doubt that the Minister will comment on that in her response.

Having said that, we welcome the concessions made by the Government on medical data and doctor-patient confidentiality. They show that the Government have accepted, up to a point, that the data-sharing powers in this chapter needed qualification. Data sharing, properly and intelligently done, with safeguards, can be absolutely key to tackling serious violence, to prevent silo working and some of the failures we have witnessed too many times. We have some concerns over the proposal to require all data shared under the duty to be anonymised, as there may be rare but crucial cases where information needs to be more specific to protect the vulnerable and pursue the criminal.

I come back to this point: in welcoming the concessions that have been made, we support what the noble Baroness, Lady Meacher, is seeking to achieve, but we find the language in brackets—to which reference has been made—which appears to qualify the application of data protection law, to be unclear, and we really do not see why those words need to be there at all.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, I thank all noble Lords who have spoken to this group of amendments, which concern the data-sharing provisions in Chapter 1 of Part 2 of the Bill. I thank the noble Baroness, Lady Meacher, for the time she has given me today and the discussion we have managed to have. I actually think we sneakily agree with each other—but not for the same reasons. Before responding to her amendments and those of the noble Lord, Lord Paddick, I will deal with the government amendments in this group, which, if I may take the mood of the House this evening, appear to have attracted broad support.

Information sharing between relevant agencies is essential to the effectiveness of the serious violence duty. It is very important to note that it can be shared only in compliance with data protection legislation. Nothing in this Bill either waters down that legislation or breaches it. The duty will permit authorities to share data, intelligence and knowledge to generate an evidence-based analysis of the problems in their local areas. In combining relevant datasets, specified authorities, local policing bodies and educational, prison and youth custody authorities within an area will be able to create a shared evidence base on which they can develop an effective and targeted strategic response with bespoke local solutions. We can see this in other areas where local bodies work together.

Each of the authorities specified in the legislation has a crucial role to play, and it is vital that authorities are able to share their data to determine what is causing serious violence in the local areas. For example, information sharing can contribute to local efforts by allowing authorities to identify patterns and trends, geographical hotspots and the most vulnerable victims, much in the way that the noble Baroness, Lady Fox, outlined.

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[Baroness Meacher (CB)]

My understanding is that the police are able to require information to be given and Clause 17 gives the Secretary of State the power to reinforce that. As the Minister suggested this morning, the matter would then have to be determined in the courts. This is really the nub of it. We want professionals to feel able to undertake their work to prevent serious violence, with children and young people who really are pretty problematic, without feeling that, in the end, it will go to court to decide whether they are allowed to exercise their professional judgment.

[Baroness Williams of Trafford (Con)]

If the noble Baroness will be patient, I will get on to Clauses 16 and 17 in just a second.

Going back to Clause 15, this will permit, but not mandate, authorities to disclose information to each other. It simply ensures that there is a legislative basis in place to enable information to be shared between all authorities exercising functions under Chapter 1 of Part 2 of the Bill. The clause also ensures that any disclosures must only be made in compliance with data protection legislation and cannot be made if certain prohibitions on disclosure set out in the Investigatory Powers Act 2016 apply.

Clause 16 provides a power for a local policing body—a PCC or equivalent—to request information from a specified authority, educational authority, prison or youth custody authority for the purposes of enabling or assisting the local policing body to exercise its role to assist duty holders and monitor its functions to prevent and reduce serious violence. While Clause 16 places a statutory requirement on the specified authority, education authority, prison or youth custody authority to comply with such a request, a disclosure is not required if it would contravene data protection legislation or prohibitions in specified parts of the IPA 2016. The provision does not place any mandatory requirements directly on individual professionals to disclose information they hold under the duty, be that confidential information or otherwise.

There are also a number of safeguards in relation to the information that can be required. As proposed by government Amendment 20, local policing bodies must request only information already held by that authority. Requests must be related to the organisation or function to whom the request is made, except when functions are contracted out. Additionally, the information supplied under Clause 16 must be used by only the local policing body that receives it to enable or assist that body to assist the relevant authorities or monitor the activity it undertakes under the duty. The information received is not therefore to be used or disclosed onwards to any other bodies for other purposes, such as law enforcement.

It is against that backdrop that we need to consider the provisions in each of Clauses 9, 15 and 16 which Amendments 11, 22 and 30 seek to strike out. These provisions state that, in determining whether a disclosure would contravene the data protection legislation,

“the power conferred by this section is to be taken into account”.

This allows the power or duty to disclose to be taken into account when determining the impact of the data protection legislation. This is to preserve the effect of the data protection legislation, dealing with the logical difficulties that can arise where an information-sharing gateway, such as that proposed by these provisions, prevents disclosure in breach of the data protection legislation, but the data protection legislation allows a disclosure which is required or permitted by the enactment. This is to ensure that these provisions can be taken into account when authorities are determining the legal basis for processing data under Article 6 of the UK GDPR.

This Bill is by no means unique in including this drafting. The provisions have been used for a number of other information-sharing clauses, including most recently the Environment Act 2021 and the Forensic Science Regulator Act 2021. I know that I am not allowed props in your Lordships’ House, but if I hold up the list to myself, there are a huge number of Bills to which this pertains. This is a standard provision. I also reiterate that both Clause 15 and regulations made under Clause 9 provide for permissive gateways, meaning that they do not impose any obligation to share information. That is a crucial point.

On Amendment 25, I totally agree that any decision to disclose an individual’s personal data should not be taken lightly. The rationale for not excluding all personal data sharing under the duty is clear. Private and confidential health data has a unique status and needs special protection or trust between patients and doctors. That could be undermined, with individuals actually going as far as to avoid treatment for fear of their data being shared. However, in order for the duty to be effective, we really must still support sharing of case-specific information on individuals at risk to both safeguard them and support vital interventions; I know that the noble Baroness, Lady Meacher, agrees with that point. Decisions about whether disclosures of personal data can lawfully be made under these provisions would always need to be made on a case-by-case basis, and always in line with data protection legislation.

As I said in previous debates, we are not seeking to replace existing data-sharing agreements or protocols, including those under the Crime and Disorder Act 1998. All authorities subject to the duty should have clear processes and principles in place for sharing information and data. Any and all exchanges of data and information under Clauses 15 and 16 or regulations made under Clause 9 must not contravene existing data protection legislation or provisions of the IPA 2016.

I turn to the amendments tabled by the noble Lord, Lord Paddick. Amendment 18 seeks to ensure that relevant authorities are obliged to comply with the serious violence duty only to the extent that it does not conflict with its other statutory duties. We do not support this amendment, as it is essential that all relevant authorities are legally required to collaborate with the specified authorities or with other education, prison or youth custody authorities in their work to prevent and reduce serious violence when requested to do so, and to carry out any actions placed on them in the strategy. There are already sufficient safeguards in place, including considering whether the request is deemed to be disproportionate to the local serious violence threat level, whether it would be incompatible with an existing statutory duty or, indeed, whether it would have an adverse effect on the exercise of the authority’s functions, or would mean that the authority incurred unreasonable cost. In determining whether any of those conditions apply, the cumulative effect of complying with duties under Clause 14 must be taken into account.

We think that this approach strikes the right balance in ensuring that institutions which are affected by serious violence, or may have a valuable contribution to make to local partnership efforts, will be drawn into the work of the local partnership without placing unnecessary burdens on those which may not. This approach is also consistent with the structures and processes in place for existing safeguarding legislation and would allow for an effective and targeted approach within both the education and prison sectors.

Amendments 24, 32 and 33 require that any information disclosed under Clauses 15 or 16 or under regulations made under Clause 9 must comply with any duty of confidence owed by the person making the disclosure, where disclosure would amount to a breach of that duty, the Human Rights Act 1998, the Equality Act 2010, the data protection legislation, the Investigatory Powers Act 2016, and any other restriction on the disclosure of information, however imposed. In addition, Amendment 33 also specifies that no regulations may be published under Clause 9(2) prior to the Secretary of State publishing an equality impact assessment, a data protection impact assessment and a description of any guidance or codes of practice.

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[Lord Falconer of Thoroton (Lab)]

Is the Minister saying—I take Clause 9(5)(a) as an example—that, when considering necessity and proportionality under the data protection legislation, the existence of this power is not relevant because the data protection legislation will determine whether it is necessary and proportionate, and the only significance of the words in brackets is to make it clear that this opens a new gateway?

[Baroness Williams of Trafford (Con)]

Can the noble and learned Lord elucidate?

[Lord Falconer of Thoroton (Lab)]

Under the data protection legislation, whether or not to disclose the information depends in part on its necessity and proportionality, which is a balancing act. I think the noble Baroness is saying that the words in brackets are there—I am taking Clause 9(5)(a) as an example—only to make it clear that we are opening a new gateway here. They are not there to say, “In considering necessity and proportionality, have regard to the fact that this new power is given”. Is that what the noble Baroness is saying about how the words in brackets operate? If it is too late at night and I am not clear enough, she can by all means write to me, but it is quite important.

[Baroness Williams of Trafford (Con)]

The words provide that the processing is lawful under data protection legislation.

[Lord Falconer of Thoroton (Lab)]

Is that separate from the words in brackets?

[Baroness Williams of Trafford (Con)]

My Lords, as I understand it, they must be read with Article 6 of the GDPR, so it is a read-across. Yes, I am tired—my brain is not working very fast today.

Clauses 9, 15 and 16 also already ensure that data can be disclosed only in compliance with the data protection legislation; I mentioned that that requires a case-by-case consideration of the necessity and proportionality of a disclosure.

Obligations of confidence and other restrictions on disclosure are not breached by a disclosure under Clauses 15 or 16, or regulations made under Clause 9, but patient information and personal information held by a health or social care authority should not be shared in line with our proposed amendments, as it is vital that authorities are able to share their data when necessary to determine what is causing serious violence in local areas. Our draft statutory guidance provides some additional steers on this, and the guidance will be subject to formal consultation following Royal Assent and can be revised if it needs further clarification.

I turn to Clause 17, and first I shall answer a point made by the noble Baroness, Lady Brinton. A direction under Clause 17 cannot be made to require information requested under Clause 16 to be provided if the information is patient information or if the health or social care authority is requested to provide personal information. I hope that she finds that clarification helpful.

Amendment 35 strikes out Clause 17, which confers a power on the Secretary of State to direct a specified authority, educational, prison or youth custody authority, where it has failed to discharge its duty imposed under the Bill. I assure the House that we expect these powers to be seldom used and utilised only when all other means of securing compliance have been exhausted. However, in order for this duty to be effective, there needs to be a system in place to ensure that specified authorities comply with the legal requirements that we are proposing to help prevent and reduce serious violence.

I hope, in the light of my explanation, that the noble Baroness, Lady Meacher, and the noble Lord, Lord Paddick, will be content not to press their amendments and support the government amendments.

[Baroness Meacher (CB)]

My Lords, first, I thank the right reverend Prelate the Bishop of Manchester and the noble Lord, Lord Paddick, very much for their support for these amendments and their excellent contributions, and I thank all other noble Lords who have contributed today—in particular the noble Lord, Lord Rosser, who has been very helpful behind the scenes, despite a slight issue this evening, as we know.

I thank the Minister for her reply. Her remarks must have left noble Lords completely confused because, of course, if these clauses really were benign, we would not have Amnesty International, Liberty and about a dozen other organisations desperate for these amendments to pass this evening. The fact is that they are not benign, and I congratulate the Minister on the brilliant wording that has somehow left me bemused, along I am sure with everybody else in this Chamber.

I regard the issue of the ability of professionals to exercise their professional judgment in deciding whether to pass information to the police, which could jeopardise the very vulnerable young people they are working with, as a very important issue of principle. It is for that reason that I wish to test the opinion of the House—albeit I know our numbers are severely limited at this very late hour—and call a vote.

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Moved by

[Baroness Williams of Trafford]

12: Clause 9, page 12, line 2, at end insert—
“(5A) Regulations under subsection (2) must not authorise—(a) the disclosure of patient information, or(b) the disclosure of personal information by a specified authority which is a health or social care authority.”Member’s explanatory statement
This amendment and the amendment in the name of Baroness Williams of Trafford at page 12, line 11 require regulations under Clause 9(2) to provide that they do not authorise the disclosure of patient information or the disclosure of personal information by a health or social care authority.

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[Lord Paddick (LD)]

My Lords, we support this amendment. As I said in Committee, it is not just victims of domestic violence that need help and support from housing authorities to escape serious violence; young people groomed and exploited by criminal gangs, for example, also need and deserve to be urgently rehoused in certain circumstances. The police need to provide information to housing authorities where they believe that someone is being coerced into criminal activity, where they are being threatened with serious violence if they do not comply, and where the police believe that taking the person out of that scenario by rehousing them can reduce the risk of serious violence. Many of the young people involved in county lines drug dealing have been groomed into criminality and been the victims of child criminal exploitation. They and their families are often terrorised by those higher up the drug-dealing network. In this sort of scenario, the police need to work with social housing agencies to provide a route out of serious violence. We support the amendment.

[Baroness Williams of Trafford (Con)]

My Lords, I thank my noble friend Lord Young of Cookham for setting out the case for his amendment. I also thank the noble Baroness, Lady Blake, and the noble Lord, Lord Paddick. I fully agree that local authorities can and do make a significant contribution to local efforts to prevent and reduce serious violence, and it is vitally important that all victims of serious violence who need to leave their home to escape violence are supported to access alternative safe and secure accommodation. As my noble friend has already outlined, the statutory homelessness code of guidance provides guidance on local authorities’ duties under Part 7 of the Housing Act. The amendment seeks to place a requirement on the Secretary of State to issue a code of practice under Section 214A of the Housing Act 1996.

The implementation of the serious violence duty will bring additional guidance to which local authorities will have a statutory duty to have regard. The guidance accompanying the duty, to be issued under Clause 18 of the Bill, will reinforce and complement the existing guidance issued under housing and homelessness legislation. Taken together, I hope there will be sufficient guidance in place to ensure local authorities are clear on how the legislation applies in addressing the housing needs of victims of serious violence.

I hope my noble friend agrees—and I think he would—that to introduce another code of practice in addition to the existing homelessness code of guidance and the serious violence duty guidance would lead to unnecessary confusion and duplication. I hope to assure my noble friend this evening that the points his amendment is seeking to address are already covered, and are what we are planning to do in future.

Paragraph (a) of my noble friend’s new clause would require the code of practice to provide guidance on the operation of Section 177 of the Housing Act 1996 in relation to people who are at risk of serious violence.

The Housing Act 1996, as amended by the Homelessness Reduction Act 2017, puts prevention at the heart of the local authorities’ response to homelessness and places duties on local housing authorities to take reasonable steps to try to prevent and relieve a person’s homelessness. When assessing if an applicant is homeless, local authorities should consider any evidence of violence and harassment. Section 177 already provides that someone is considered homeless if it would not be reasonable for them to continue to occupy the accommodation and it is probable that this would lead to violence against them, their family or their household.

Paragraph (b) of the new clause seeks to update the homelessness code of guidance to include a chapter on the duties of local authorities. We are committed to supporting victims of serious violence and know the important role that local authorities play in making sure that such victims get support when they are in housing need.

As noble Lords will know, we published a draft of the statutory guidance for the serious violence duty in May. The debates in both Houses have helped to identify areas which need further development prior to publishing a revised draft, which will be subject to a formal consultation following Royal Assent of the Bill. Officials will work closely with the Department for Levelling Up, Housing and Communities and representatives from the housing sector to strengthen the statutory guidance for the serious violence duty. This will point to the legislation and guidance that is already set out in the homelessness code of guidance and the allocation of accommodation guidance, and showcase examples of good practice in this area which local partners can draw on to raise awareness across public authorities of the legislation which protects this cohort.

I can also give a commitment this evening that we will expand the homelessness code of guidance to include a new chapter on supporting victims of serious violence, which I hope gives my noble friend the assurance he seeks in this regard.

Paragraphs (c) and (d) of the new clause concern the role of the police in timely collaboration with housing providers on reducing the risk of serious violence to individuals, and guidance on the disclosure of information. Of course, we must do all that we can to identify and provide support to the individuals most at risk of involvement in serious violence, including those who might be at risk of homelessness.

As noble Lords have stated, many housing authorities already work with the police and other key partners to reduce the risk of serious violence, including through the provision of alternative accommodation. Where this works well, it is clear that it is vital that services such as youth offending teams, educational authorities and national probation services work together locally to provide support for the household and victim of violence. Housing alone without support, I think noble Lords will agree, is not a sustainable option.

As part of the work to prevent and reduce serious violence, specified authorities in a local area will be required to work together to identify the kinds and causes of serious violence and, in doing so, to establish the groups of individuals who are most at risk in local areas.

The new serious violence duty will facilitate this and is intended to generate better partnership working locally to further protect this cohort. The draft guidance is clear that local authorities are responsible for the delivery of a range of vital services for people and businesses in a local area, including—but not limited to—children’s and adult’s social care, schools, housing and planning, youth services and community safety, so they will have an essential role to play in partnership arrangements. The inclusion of this detail in the guidance for the new duty, alongside the existing homelessness legislation and guidance, is the most effective way of supporting these victims of serious and gang-related violence to relocate and start afresh.

To support the collaboration, Clause 9 provides that regulations can also be made to authorise the disclosure of information, which we talked about earlier, between authorities and prescribed persons, which might be external bodies for this purpose, so long as it would not contravene existing data protection legislation or be prohibited under provisions of the IPA 2016. This of course would be a permissive gateway, permitting but not requiring the sharing of information.

I hope that, in the light of the assurances and commitment I have given in relation to the statutory guidance and the relevant existing legislation on this matter, my noble friend will be content to withdraw his amendment—and I apologise for the lateness of the arrival of the letter.