My Lords, Amendment 76 has been tabled to clarify that victims of crime can get the support they need without fear of legal action under confidentiality clauses, also known as non-disclosure agreements or NDAs. NDAs can and do serve a valid purpose to protect commercially sensitive information and deliver a clean break where parties seek closure on an issue, but they have been misused to make victims fear repercussions if they seek access to justice or support services. Reporting a crime to the police is already protected under common law, but the legal position is not as clear as it could be. The Government wish to avoid a situation where NDAs might be used to prevent victims telling support services and close family about criminal conduct that has happened to them.
I am therefore pleased to bring forward this amendment, which makes it clear in primary legislation that confidentiality clauses cannot be legally enforced to the extent that they prevent victims reporting a crime or accessing confidential advice and much-needed support. It sets out who a victim can make disclosures to and for what purposes, which includes the police, regulatory bodies, lawyers, support services, and a victim’s partner, parent, or child. However, to protect legitimate uses of NDAs, subsection (3) of the proposed new clause makes it clear that disclosure to those permitted third parties must not be for the primary purpose of releasing information into the public domain, because we want to avoid a situation where somebody, for example, uses a lawyer to front up the disclosure of confidential information when that is not justified.
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I should make clear—I think it was the noble Lord, Lord Wills, who raised the question—that this provision does not conflict with the very important whistleblowing legislation in the Employment Rights Act. That Act allows workers to make a protected disclosure in certain circumstances. This new provision under Amendment 76 has no impact on those existing rights. Alongside wider regulatory efforts to clamp down on NDA misuse, we intend to further empower victims of crime to seek the support and advice they need without fear of legal action, and I commend this amendment to the House.
Government Amendment 85 is to facilitate victim impact statements to the mental health tribunal. We have carefully listened to concerns that victims have differing entitlements depending on the setting of the offender’s release. The mental health tribunal has so far not had exactly the same treatment as the Parole Board. This amendment makes provision for a victim impact statement to be made to the mental health
tribunal, which may be factored into its decisions. We know that some victims want to read their statement, and this amendment will also give victims entitled to make a statement a statutory entitlement to apply to read their statement at a hearing, where one takes place. This application should normally be approved, unless there are some good reasons not to, as is the case with the Parole Board. I thank the noble Baroness, Lady Newlove, the Victims’ Commissioner, for her engagement on this issue. I think the noble Baroness, Lady Watkins, also spoke to this point in Committee.
It may be convenient, although I am not completely sure it is procedurally correct, for me to signal in advance the Government’s position on Amendments 87, 88, 89 and 94 proposed by the noble Baroness, Lady Bertin, which include new measures to introduce further protections for victims, governing police requests for victims’ counselling records. I extend my thanks to the noble Baroness for her dedication to this issue and her amendments, which I hope address the issue. Excessive and disproportionate requests for counselling records represent an unacceptable level of intrusion into a victim’s private life. Fearing their notes will be shared in court, some victims may decide not to seek justice, while others may decide not to receive therapeutic support. We agree that this is unacceptable, so I can confirm that the Government have heard the case made by the noble Baroness and recognise her tireless campaigning. We will therefore support those amendments when they are moved.
This leads on effectively to the next group, which we will be debating shortly, on the question of free legal advice for victims of rape. The Government’s view is that the amendments proposed by the noble Baroness, Lady Bertin, will greatly reduce the need for independent advice to victims of rape or other serious sexual crimes, because they will be presented with far fewer requests—perhaps if any—for counselling notes or similar documents.
That takes me to Amendments 87A and 88A proposed by the noble Baroness, Lady Morgan, which would require agreement from the victim before the police could approach a third party to request victim information. As I understand it, these are effectively modelled on new Section 44B of the Police, Crime, Sentencing and Courts Act, which effectively deals with mobile phones and gives the victim particular rights in relation to extracting information from a victim’s device. I am very grateful indeed to the noble Baroness for tabling these amendments.
The Government’s position is that we cannot make a direct comparison between mobile phones on the one hand and counselling notes on the other, not least because counselling notes are prepared by somebody else—a third party, whose notes they are. That is basically third-party data, which in some—I hope exceptional—circumstances, the police may be entitled to request. Essentially, the Government accept and believe that the problem rightly identified by the noble Baroness, Lady Morgan, is now in effect covered by the amendments tabled by the noble Baroness, Lady Bertin. I respectfully invite the noble Baroness, Lady Morgan, not to press her amendments when we come to them. These are delicate issues; we have to make various balancing choices, and the Government
believe that Amendments 87, 88, 89 and 94 effectively cover the ground and de facto ensure the protection suggested by Amendments 87A and 88A.
Before I sit down, I will also briefly deal with Amendment 158, which would extend the relevant clauses to the whole of the United Kingdom, as distinct from England and Wales. The Scottish Government are in a separate position, because Scotland is a separate legal jurisdiction. We have engaged with Northern Ireland and will work to assist it in implementing similar measures should it choose, but again that is a separate jurisdiction. Amendment 158 is not one that the Government could support.
In this group, that leaves Amendment 96 tabled by the noble Baroness, Lady Meacher—forgive me for not coming to it earlier. This is about the migrant victims firewall. We remain determined that all victims and witnesses must be free to report offences without fear, but this must be balanced with the need to maintain an effective immigration system, protect our public services and safeguard the most vulnerable from exploitation. In the Government’s view, information to discharge those functions on a case-by-case basis should be allowed, having regard to all the circumstances. This information, in some instances, may help to protect and support victims and witnesses, identify whether they are vulnerable and aid their understanding of access to services and benefits.
However, we agree that more can be done to make it clearer to migrant victims what data can be shared and for what purpose. That is why we will set out a code of practice around data sharing of domestic abuse victims’ personal data for immigration purposes. This will provide guidance on circumstances in which data sharing would or would not be appropriate, and provide transparency around how any data shared will be used. We will consult on this prior to laying the code for parliamentary scrutiny and approval, hopefully this spring. The Government are also committed to introducing an immigration enforcement migrant victims protocol for migrant victims of crime, which we aim to launch later this year. The protocol will give greater transparency around how any data will be shared. I hope that the net result will be that, although we will not prevent the sharing of data in all circumstances, the rules relating to that will be much clearer and better presented in the guidance to which I have just referred.
I commend the Government’s amendments to the House, and I hope that the other amendments in this group will not, in the end, need to be moved. I beg to move.