Police, Crime, Sentencing and Courts Bill — House of Lords, 2021-10-27
Topic: Law and Crime
Susan Williams (Conservative, Centre-right): If the noble Baroness would bear with me, I am going to get on to that point about the read-across to other things. I hope that I have made it clear that I totally empathise with and get the point that my noble friend is making and that the remedy should be established through the court process Amendments 99 to 101 address a further point raised by the Victims’ Commissioner; namely, that she and other like commissioners have a statutory right to be consulted on the code of practice. This will give victims and witnesses further confidence that their concerns and priorities are represented in this code of practice. Amendment 105 will ensure that the Scottish Ministers and the Northern Ireland Department of Justice are consulted before regulations are made to add, remove or amend an authority with devolved competence under Schedule 3 Government Amendments 108 and 109 add to the list of authorised persons in Schedule 3. Amendment 108 will ensure that authorised persons in the Insolvency Service can exercise the Clause 36 power for the purposes of the prevention, detection or investigation of crime in pursuit of their functions, which include tackling financial wrongdoing. This was initially a mystery to me, but the Insolvency Service is an executive agency of the Department for Business, Energy and Industrial Strategy, hence the language used in the amendment, but it is important to note that the reference to an officer of BEIS is qualified because any individual falling within that description may exercise the powers only for the prevention, detection or investigation of crime. Schedule 3 already enables the Independent Office for Police Conduct to exercise the Clause 36 powers. Amendment 109 adds the equivalent bodies in Scotland and Northern Ireland As I have said, we believe that the government amendments address many of the points raised in amendments tabled by the noble Lords, Lord Rosser and Lord Paddick, but I will now turn to some of the other amendments in this group. Amendment 79 seeks to provide free independent legal advice to device users before they agree to the extraction of information from their device. Government Amendment 93 will ensure that device users are fully informed of the reasons that the information has been sought and how the information will be used. We do not think that provisions in this chapter are the right place to address what is a broader issue about the provision of legal advice to victims and witnesses given the wider impacts across the criminal justice system as a whole As regards Amendment 89, the noble Lord, Lord Rosser, highlighted the alternative drafting in respect of the test for the exercise of the Clause 36 powers. As the Bill is drafted, the authorised person must be satisfied that the exercise of the power is necessary and proportionate to achieve the relevant purpose. Under Amendment 89, this necessity test would become one of "strictly necessary". The matter was also raised by the Victims’ Commissioner in briefings to noble Lords We understand that the reason for the concern is the strict necessity requirement in the Data Protection Act 2018. The powers in Clauses 36 and 39 must be read alongside existing obligations under the 2018 Act or the UK GDPR. In every case where authorised persons are extracting sensitive personal information from a device under these powers for a law enforcement purpose, such as preventing, detecting, investigating or prosecuting crime, they must continue to meet the strict necessity threshold in the Data Protection Act. It is therefore not necessary to duplicate that existing legal requirement in the Bill; it is there.