Victims and Prisoners Bill (Twelfth sitting)
Thursday 6th July 2023
(10 months ago)
Public Bill CommitteesVictims and Prisoners Bill 2022-23 View all Victims and Prisoners Bill 2022-23 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 6 July 2023 - (6 Jul 2023)
Maria Eagle (Garston and Halewood) (Lab)
I beg to move amendment 69, in clause 25, page 19, line 31 at end insert
“,but only after consultation with bereaved families and victims”.
This amendment requires the Secretary of State to consult with victims before terminating the appointment on such grounds as the Secretary of State considers appropriate.
This should not take long because it deals with an issue that we spent quite a lot of time talking about this morning: ensuring that families have some kind of say. The amendment would require the Secretary of State to consult with victims before terminating any appointment of an independent public advocate on such grounds as he might consider appropriate. As we discussed this morning, it is really about him not acting with unfettered discretion, but trying to gain the trust and confidence of families, and taking them with him in the decisions that he makes. It is a probing amendment, but I hope to hear from the Minister that he is not unsympathetic to it.
Anna McMorrin (Cardiff North) (Lab)
I endorse what my right hon. Friend has said.
The Minister of State, Ministry of Justice (Edward Argar)
It is a pleasure to be back before you this afternoon, Mr Hosie. I thank the right hon. Member for Garston and Halewood for her amendment, which would require the Secretary of State to consult victims before terminating an advocate’s appointment on such grounds as the Secretary of State considers appropriate. That stands apart from a termination of appointment in accordance with the terms of appointment, which will cover issues such as incapacity, misconduct and a failure to exercise functions.
I am grateful to the right hon. Lady for highlighting that this is a probing amendment, and I hope that I can give her some reassurances. It would be helpful if I explained the rationale behind including the provision in the Bill, and I hope to reassure her that the power will be used carefully, and that we will consider the needs of victims when doing so. The Secretary of State will not take such a decision lightly, and any decision will be open to challenge through a judicial review in the courts. There are a few scenarios in which we imagine that the Secretary of State may use his or her discretion to terminate the appointment of an advocate using the power.
First, as the Committee may be aware, clause 26 allows the Secretary of State to appoint multiple advocates to support victims after a particular major incident. We will consider the clause in detail later, but briefly we believe that it is necessary to provide the IPA with resilience should major incidents happen concurrently, or should there be a very large number of victims to support. It is in that context that it may be necessary for the IPA to change its composition during its lifetime. We imagine being able to flex the resource required to support victims to allow the IPA to be as agile as possible, and following peaks of activity it may be prudent to reduce the number of advocates actively supporting victims. The power allows the Secretary of State the flexibility to do that.
Secondly, we have always stressed the importance of being able to deploy the IPA as quickly as possible following a major incident. It may be appropriate, following a greater understanding of the developing needs of the victims, to supplement one advocate for another who, on reflection, may turn out to be better suited by virtue of their skills or expertise. I believe that having that flexibility is important, and the amendment would remove that flexibility in the circumstances that I have outlined.
Thirdly, throughout the various debates on this part of the Bill it has been highlighted that victims must have confidence in the advocates in order for them to be effective. I entirely agree. I therefore imagine another use for the power to be removing advocates who may not command the confidence of victims, or standing down the IPA because victims decide that they no longer want the support offered. In all the circumstances that I have described above, let me be clear that the victims will be considered by the Secretary of State, and their needs will be paramount. I believe that victim agency is crucial, as the right hon. Lady set out. That has come through strongly during the debates on this part of the Bill.
Although the amendment serves as an important reminder of that principle, it is not necessary given the sets of circumstances that I outlined previously that require a degree of flexibility. If, in each of the examples that I have described, the Secretary of State were required to hold a formal and legal consultation with the victims, that could severely cut across the ability of the IPA to be flexible and to adapt quickly to changing demands. In the absence of any detail on how such a consultation would be held, it is difficult to see how that could be achieved in reality—especially in the initial aftermath, when the number and identity of the victims will be unknown. I note the intent behind the right hon. Lady’s probing amendment, but urge her not to press it.
Maria Eagle
In view of the Minister’s assurances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Anna McMorrin
I beg to move amendment 24, in clause 25, page 20, line 4, at end insert—
“(4A) During their appointment the independent public advocate shall sit within the Ministry of Justice for administrative purposes, but shall be independent with respect to its functioning and decision-making processes, and discharge of its statutory duties.”
This amendment would clarify the functional and operational independence of the advocate.
I thank Inquest, Hillsborough Law Now and Justice for working with me on the amendment. I also pay tribute to Ken Sutton, secretary to the Hillsborough Independent Panel. He has worked with me through the whole of part 2 of the Bill, on this amendment and others. I pay tribute to his work and support.
As I said earlier, clauses 24 to 26 provide unfettered discretion to the Secretary of State—not only on whether to appoint an advocate following a major disaster, but on who the advocate is and how they will be resourced. That removes any semblance of independence from the advocate, who is instructed by and answers to the Secretary of State and not those most affected.
The issue of independence is a central concern for the many bereaved families and survivors. It is critical that support provided to families is operationally and functionally independent of Government, to allay families’ concerns about cover-ups, collusions and evasive practices, much of which we have heard detailed this morning. If that is not assured, the position is valueless, as it will be perceived as the Government merely extending their control over the investigatory landscape.
In the evidence sessions, we heard the Right Rev. James Jones state how crucial the independence of the advocate is. When asked if he believed whether the Bill provided enough independence, he answered:
“I am afraid I do not.”––[Official Report, Victims and Prisoners Public Bill Committee, 22 June 2023; c. 87, Q168.]
I welcome the Government’s initiative and determination to continue to listen to various parties as they shape this appointment. However, I do not think that the independence is sufficiently guaranteed by the Bill as it stands. I echo the concerns expressed by the Right Rev. James Jones, and I hope that the Minister will heed them accordingly in his response.
Edward Argar
I am grateful to the shadow Minister for the amendment and her remarks. As she set out, her amendment seeks to clarify the functional and operational independence of the IPA. I support the intention behind it, and she highlighted the oral evidence we heard in Committee. We do, however, have some drafting concerns that need to be reflected on further, which means that at this point I cannot support the amendment. I will set out my reservations, which equally the hon. Lady might herself wish to reflect on.
It may be helpful not to refer specifically to the “Ministry of Justice”, to guard against any potential machinery of government changes. It is also important to ensure that the amendment would not prevent the Secretary of State from agreeing terms of reference with advocates, to provide them with guidance and clear parameters. I do, however, agree that the IPA must be independent and be seen to be so—and it will be. The Government are absolutely committed to an operationally independent IPA and I am happy to work with the hon. Lady to ensure that that is as clear as we can make it, or to find where we can reach consensus on some elements.
Our provisions ensure that the advocates will have autonomy to take decisions and utilise their experience in a manner that they deem appropriate. That is why the functions of the IPA as set out in the Bill are broad and non-exhaustive, and further allow the IPA to support victims as it sees fit. We are, therefore, already delivering on the functional independence in the Bill. The advocates will be supported by a permanent secretariat provided by the Ministry of Justice. Work is already under way to ensure appropriate separation between the Department and those working in the secretariat.
Finally, the advocates have the autonomy under the reporting function to include any relevant matters in their reports to the Secretary of State. Later, we will come to amendments to clause 29 on how that may interact with the independence of the IPA. As I will set out in more detail then, I am willing to work with the shadow Minister on that, to see if there is a landing zone that satisfies the Government’s position and the intentions behind the amendment.
I do not believe amendment 24 is necessary as it is already covered by the Government’s intent, and in our view it is already being delivered in the Bill. I am none the less grateful to the hon. Lady for tabling the amendment and allowing us the opportunity to have this brief debate.
Anna McMorrin
I am grateful to the Minister for his words of initial support for the wording in the amendment, and for his willingness to work with us as we move forward on ensuring the independence of the advocate. As the Bill is currently drafted, that independence is by no means assured. I am grateful to hear that the Minister is willing to work with me, and look forward to that. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Maria Eagle
I beg to move amendment 70, in clause 25, page 20, line 7 at end insert—
“(6) An advocate appointed in respect of a major incident is to be regarded as a data controller under General Data Protection Regulations for the purposes of their role”.
This amendment ensures that the Independent Public Advocate is a data controller for the purposes of General Data Protection Regulations.
The Chair
With this it will be convenient to discuss the following:
Amendment 72, in clause 27, page 20, line 36, leave out “assisting victims to access” and insert “accessing documents”.
This amendment is consequential on Amendment 70.
Amendment 73, in clause 27, page 20, line 37, leave out from “(1)” to end of line 39.
This amendment is consequential on Amendment 70.
Maria Eagle
Amendment 70 would insert a subsection into clause 25, making it clear that an advocate appointed in respect of a major incident is to be regarded as a data controller for the purposes of the general data protection regulation in carrying out their role.
Amendments 72 and 73 to clause 27 are consequential upon the public advocate being a data controller, and would make it clear that they themselves can handle documents and do so lawfully, while removing some of the usual reasons why documents are withheld. The point of the amendments is to try to implement the lessons of the Hillsborough Independent Panel, which is why Lord Michael Wills and I have been bringing forward our own public advocate Bills over the years.
The Hillsborough Independent Panel was a stunning success. In just over two years, it did the job of establishing unequivocally and incontrovertibly the truth of what happened to each of the then 96 people who died at Hillsborough. It made it completely clear that many could have been saved and that the appalling behaviour of senior police commanders had been the cause of the disaster. It torpedoed the cover-up by South Yorkshire police of their culpability. It made abundantly clear that there had been no contribution from those killed or from other Liverpool fans to the disaster. That is what the legal system had failed to establish clearly over more than two decades, through myriad and repeated proceedings in every conceivable kind of court.
If a process like that could work for a disaster that was so contested at the time and that was more than two decades old, about which there were literally hundreds and thousands of documents, could not a similar process be used to prevent things going so wrong in the aftermath of other disasters? Things going wrong in the aftermath of disasters is surely what this legislation is seeking to try to prevent.
As Lord Wills said in his evidence to us:
“We have to accept that a cover-up is part of the pathology of a big public disaster. It is human nature. When something happens like Hillsborough, the Manchester Arena bombing or Grenfell Tower, it is a huge story for the nation, and obviously those in power at the time, who feel they might be blamed for it, will feel that they have to cover up in some way. We saw what the police did with Hillsborough: they created a false narrative as part of that cloud of unknowing that they wanted to create, to cover up. What they feared, rightly in the end, was that they would be blamed for it.
That is true of pretty much every public disaster: obviously the details are different, but there is that essential pathology. There is always a risk of cover-up. I hope this Bill, suitably amended, will raise the barriers against that, but it does not mean that we can drop our vigilance against the potential.”.––[Official Report, Victims and Prisoners Public Bill Committee, 22 June 2023; c. 94, Q181.]
I think Lord Wills sets out there pretty clearly what he and I were seeking to do with our own proposals in our public advocate Bills. That is what I press the Government to aspire to. If we could manage to do this, it would make an enormous difference in the aftermath of future disasters and would hopefully prevent things from ever again going as wrong as they did with Hillsborough.
Part of what the Hillsborough Independent Panel was able to do was to lawfully collect and process documents. That turned out to be crucial. It worked on the basis of obtaining and publishing all documentation to ensure total transparency in what had been an atmosphere of deep suspicion. It was that approach that broke the logjam of suspicion among bereaved families and survivors, while getting at the truth in a way that was revelatory about the causes and aftermath of the incident. That was no small feat, but it was key to the success of the process. After more than two decades of failure to get to the truth and have it accepted, justice for those who were unlawfully killed was advanced. If we can learn the lessons of the Hillsborough Independent Panel and apply them by having a public advocate who has functions and powers to do what the Hillsborough Independent Panel did, we may be able to stop future disasters from going so appalling wrong over such an extended period as Hillsborough. That is what we should seek to do.
If the legislation aims a little lower than that—I fear it may do—and aims just to signpost victims to support services and help in the immediate aftermath, it will be valuable but we will have missed a major opportunity to prevent things from going as wrong as they did for those caught up, through no fault of their own, in the Hillsborough disaster. I believe that functions enabling the public advocate to handle documents and the power to set up an independent panel like the Hillsborough Independent Panel, which we will come to later, are vital to the success of the legislation and of the post that we all seek to create.
Anna McMorrin
I endorse the words of my right hon. Friend, who has spelled out in great detail the importance of having access to the correct data, and not just in the immediate aftermath. We must learn the lessons from what happened at Hillsborough, and ensure that in future there is access to important data and information.
Edward Argar
I am again grateful to the right hon. Member for Garston and Halewood for her amendments. Amendments 70 and 72 would make the IPA a data controller, enabling them to obtain and review all documentation relating to a major incident. Amendment 73 sets out that advocates may support victims by establishing an independent panel to establish the truth of what happened. It is important that, in all our deliberations on this part of the Bill, we strive to continually remember just what a devastating tragedy Hillsborough was, and that its impact was compounded by the indefensible wait for the truth—indeed, the concealment of the truth. So I am entirely sympathetic to the intention behind her amendments.
When we have spoken about this matter in the past, the key themes of empowerment and agency have come through. Another key theme that the right hon. Lady has highlighted is the power of transparency as a way to address, as I think Lord Wills highlighted—she mentioned him in her remarks—the instinctive approach of public bodies and organisations to conceal, or seek to evade responsibility, when something has gone horrifically and tragically wrong. Given the terrible experience of those affected by the Hillsborough disaster, I appreciate the concern surrounding the danger of documents and information being destroyed, changed or suppressed by public bodies or others.
However, since the Hillsborough tragedy and the injustices that followed, there have been significant developments in the justice system that give us greater opportunities to get to the truth of what has happened. Statutory protection against cover-ups now exists. Under the last Labour Government—a Government in which the right hon. Lady served, I believe—section 35(3) of the Inquiries Act 2005 came into force, making it a criminal offence to intentionally suppress, conceal, alter or destroy information during an inquiry, punishable by up to six months in prison or a fine. Secondly, the Public Records Act 1958, as amended, sets out the legal requirements for the care and preservation of public records.
The College of Policing will also introduce a new code of practice, titled “Police Information and Records Management”, which will be laid before Parliament, and which details key principles for the management of all police information and records. It will ensure that a broader range of police records are retained by forces in the future, meaning that there is less risk of losing or altering important records for future scrutiny, as occurred with Hillsborough. Furthermore, a statutory duty of co-operation was introduced in February 2020, placing a responsibility on police officers to give appropriate co-operation during investigations, inquiries and formal proceedings, and to participate openly and professionally in line with what is expected of a police officer when identified as a witness. A failure to co-operate is a breach of the statutory standards of professional behaviour and could result in disciplinary sanctions.
I also understand the right hon. Lady’s intention behind amendment 73: to allow advocates to set up an independent panel akin to the Hillsborough Independent Panel. I pay tribute to those who worked with and on that panel, which had a pivotal role in uncovering the truth. I point out that it did not have any data-compelling powers, but it none the less did phenomenal work in questing after the truth, and revealing information that had for so long eluded others.
Returning to amendments 70 and 72, the Government believe that the IPA’s key focus should be on supporting victims and the families of those affected by a major incident, rather than an investigatory approach. I appreciate that this is another area where the right hon. Lady and I may take a slightly different perspective, but I hope that we can continue to work through that in the coming months.
We consulted on the IPA in 2018, and the feedback from that consultation reinforced the need to provide clarity and support to victims following a major incident. The amendments would significantly change the purpose and role of the IPA and would introduce new responsibilities to collate, check and store information, diverting the focus away from the primary purpose that we envisaged. I appreciate that the right hon. Lady has been entirely consistent and transparent in putting her arguments with clarity. Our view is that introducing such data-controlling powers could conflict with the work of pre-existing investigative authorities, such as the work of inquiries, which already have the power under the 2005 Act to compel information and witnesses.
I appreciate that there are concerns about transparency, and as I have with previous groups of amendments, I can commit to considering with the right hon. Lady what more can be done in that respect. The IPA needs to be as effective as possible in supporting victims, and it is important that we get this right to the best of our ability in this House. Our concern is that giving the IPA the power to obtain and review all documentation could in practice introduce a further layer of complexity to the system, and I do not want to do that. I appreciate that there may be differences between the Government’s conception and that of the right hon. Lady of how the IPA will work in terms of its primary focus and function, but as before I am happy to work through that with her. I do not know whether we will be able to close the gap between us, but as with everything, I am happy to try.
Maria Eagle
I appreciate the Minister’s willingness to discuss the matter further. Obviously there is a difference between the Government’s view and my view and that of Lord Michael Wills, who introduced a Bill in the Lords, about what the focus ought to be, but I appreciate that the Minister is willing to discuss the matter further. Perhaps we might be able to come a bit closer in so doing. If we cannot, at least we will still have Report and the remaining stages to make further points. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clause 25 requires the Secretary of State to agree terms with an individual who is to be appointed as an advocate. The clause makes it clear that an individual officially becomes an advocate once they agree to their terms of appointment. The clause further provides for a framework by which advocates may be remunerated, removed and equipped with the necessary secretarial support to support victims. It is vital that at the outset terms are set out and agreed between the Secretary of State, who is accountable for his or her decision, and the individual who will act as an advocate. That will provide clarity and set out the expectations around the functions and scope of the advocate, and is in keeping with other independent appointments such as inquiry panel members.
As public money will be used to pay for the advocates, it is right to provide for that ability to agree terms mutually. The terms will include, as normal, conditions that could lead to the termination of an appointment, such as misconduct or incapacity. The advocate may resign after giving notice.
As previously discussed, the Secretary of State has a power under the clause to terminate the appointment of an advocate. I hope that the right hon. Lady and the Committee more broadly are reassured about the circumstances in which that power is likely to be used in practice. As I have set out, it may be necessary to replace an advocate if they do not command the confidence of victims; to reduce the number of advocates actively supporting victims where that is appropriate and the needs of victims decrease; or to substitute advocates in response to the changing needs of victims and a greater understanding of the expertise required. To highlight that, I point to the parallel power for Ministers in the Inquiries Act 2005. As I have said, and I think we all agree, the IPA must be operationally independent. That does not mean they can be unaccountable, and I believe our provision strikes an appropriate balance.
The clause enables the Secretary of State to pay advocates for their vital work and cover reasonable expenses such as travel and accommodation. We imagine that the IPA will spend time, especially in the immediate aftermath, in the affected community, and it is right that we provide them with the means and resources to be able to do that effectively. We will do right by victims by ensuring that the IPA is adequately resourced. We have already made progress on that front by providing funding for a full-time secretariat from the Ministry of Justice to support the advocates. The day rate or salary of the advocates is still under consideration, but it will be made public when certain. It will be proportionate and reflect the crucial role that they will play.
Finally, the clause makes it clear that advocates will not be servants or agents of the Crown. They will be independent, working on behalf of the victims of major incidents, and focused on ensuring that victims get the independent support they need.
Anna McMorrin
It is so important that the function and operational scope of the independent advocate is strong and clear, so that they can carry out their role to get to the bottom and the truth of an incident. We must ensure that we learn lessons from Hillsborough and the review panel that followed. At present, there is simply nothing independent about the advocate, but I appreciate the fact that the Minister is willing to work with us to ensure that we tighten up the wording, so that they are more independent and the Bill is as robust as possible.
Edward Argar
I am grateful to the hon. Lady for her comments.
Question put and agreed to.
Clause 25 accordingly ordered to stand part of the Bill.
Clause 26
Appointment of multiple independent public advocates
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clause gives the Secretary of State the power to appoint a lead advocate where multiple advocates have been appointed for the same major incident. The Government believe that the ability to appoint multiple advocates for the same major incident will ensure that the IPA has the necessary capacity and resilience to support victims.
Let us cast our minds back to 2017, when the awful and tragic events in Manchester and at Grenfell Tower happened only a few weeks apart. The number of victims in need of support was in the hundreds, if not higher, and it would not have been possible for a single advocate to provide the right amount of support to all the victims in two very different geographical locations. The clause is intended to deal with such situations by granting the Secretary of State the ability to appoint multiple advocates for the same and different major incidents. We hope that it gives the IPA the greatest ability to serve victims. It was endorsed by the respondents to the 2018 consultation.
Maria Eagle
Subsection (3) says:
“An advocate must have regard to any directions given by the lead advocate as to how they are to exercise their functions in respect of the incident.”
Having “regard to” is not necessarily “following the instructions of”. Is it not a recipe for chaos if there is a disagreement between advocates about the best way to act?
Edward Argar
The right hon. Lady will know the legal connotations of the phrase “have regard to”. What we are seeking to do is recognise that while there may be a lead advocate, there will potentially be other advocates in the team who have particular strengths and expertise. In appointing more than one advocate, I am sure that the Secretary of State will have due regard to ensuring that the team is coherent and able to work together.
It is important that if we are bringing different advocates with different areas of expertise into a team, their voices are able to be heard. There is an expectation that they will behave reasonably and have regard to that principle. Equally, I would not want the lead advocate to be able to silence the expertise of others in the team. It is a difficult balance to strike; like so many things do in public life and in our work, it requires people to behave in a reasonable and responsible manner. I am confident that that that will be the case, but the right hon. Lady is right to highlight the challenges were it not.
We will set up a register of individuals from a range of different professions, backgrounds and geographical areas to enable the IPA to respond to the broadest range of circumstances and the unpredictable nature of major incidents. It will also enable the Secretary of State to appoint an advocate as soon as possible and then appoint further advocates over a slightly longer period, including community advocates, to ensure that voices are reflected and the confidence of victims is maintained. That approach will allow for engagement with the families about the type of support they need from an IPA.
Anna McMorrin
We have no objection in principle to the appointment of multiple independent advocates for the same major incident, therefore creating a panel. However, will the Minister clarify the context in which that panel would operate? Importantly, would it be the same as the Hillsborough Independent Panel—granted the same powers—or would it still be open to Government interference? Will he set that out in his response?
Edward Argar
The IPAs are not envisaged as akin to the Hillsborough Independent Panel; they are to be set up as independent public advocates, but the office can have multiple holders simultaneously, if that makes sense, to draw on different expertise. The key element lies in the word “independent”. We are confident that the measures that we are putting in place will create and sustain that independence. I appreciate that the hon. Lady might press back on that on Report or in subsequent debate, but on that basis we consider the clause to strike the right balance.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clause 27
Functions of an independent public advocate
Maria Eagle
I beg to move amendment 74, in clause 27, page 20, line 27, at end insert—
“(e) an independent panel to establish the truth of what happened”
This amendment enables the Independent Public Advocate to establish a Hillsborough Independent Panel type process to get at the truth of what happened at an early stage following an incident.
The Chair
With this it will be convenient to discuss amendment 75, in clause 27, page 20, line 39, at end insert—
“(e) establishing an independent panel in consultation with victims to establish the truth of what happened”.
This amendment enables the Independent Public Advocate to establish a Hillsborough Independent Panel type process to get at the truth of what happened at an early stage following an incident.
Maria Eagle
Amendment 75 would insert into the clause, which sets out the functions of the advocate, a power to establish an independent panel such as the Hillsborough Independent Panel in consultation with the families affected. Amendment 74 would enable the public advocate to provide support to victims in respect of an independent panel-type process, if such a process is ongoing in respect of a major incident.
It follows from what I said about amendments 70, 72 and 73 that I think the public advocate should that I think the public advocate should have a broader range of functions and powers than the Bill currently sets out. Indeed, it allows only for liaison between families and organs of the state and signposting to support services. That is all helpful, but it is not sufficient to fully learn the lessons from the success of the Hillsborough Independent Panel and apply them when disasters strike. The only other real function for the public advocate in clause 27 is a report-writing one. We will come to that when we debate clause 29, so I will not dwell on it now.
A key lesson from the 23 years it took the Hillsborough families to get to the truth of what happened to their loved ones is that most of the usual processes following disasters failed them. The original inquests did not establish the cause of death for each of the deceased, although their basic function was to uncover the who, what, where and why. The families were prevented from finding the truth by the police cover-up and a coroner who, overwhelmed by the extent of the task—I am being kind—imposed a 3.15 pm cut-off, which led to material facts being ignored. The inquests left more questions than answers, and most of them were taken up by perpetuating the Hillsborough slurs that the police were on a campaign to spread, dealing with things such as blood alcohol levels, even though a third of the victims were children, and the slurs about fans being ticketless.
The families did not find out when and how their loved ones died until the Hillsborough Independent Panel answered those questions for them 23 years after the event. Some mums, such as Anne Williams, simply went and found out herself. She knew precisely what had happened to her son, Kevin—when, where and how he died—long before that truth was acknowledged by the findings of the second inquests. She spent the rest of her life campaigning to get a new inquest for her son. It was repeatedly denied her, despite the fact that it was clear he was alive after 3.15 pm and may well have benefited from medical intervention.
Anne Williams was unwilling to acknowledge that her son’s death had been an accident, and she never collected the death certificate that said so. She was right: he was unlawfully killed, but it took her the rest of her life to be vindicated and have the accidental death verdict overturned. She lived to see the original verdict quashed, but she did not live to see the unlawful killing verdict at the second inquests. That relates to a point that my hon. Friend the Member for Birmingham, Yardley made this morning about the health consequences of these kinds of disasters on those affected by them. Anne Williams always knew that her son had been unlawfully killed.
When I first met my constituent Jenni Hicks as her MP in 1997, I was struck that she and her ex-husband, Trevor, were discussing a new bit of information that one of them had been passed about the movements of one of their daughters during her last moments. That was what the original inquests should have told them, but they did not even try to do so. As Jenni Hicks told us:
“We basically knew the truth but we could not get hold of the evidence; nobody could. It was not until the Hillsborough Independent Panel that we had that evidence, finally, and we finally—as I say, four years after HIP—had the correct inquest verdicts.”—[Official Report, Victims and Prisoners Public Bill Committee, 22 June 2023; c. 144, Q219.]
What a failure of our legal system.
For that reason, it would be an omission to legislate for a public advocate without enabling them to establish an independent panel in consultation with the families, to assist them in respect of an independent panel process, and to help if there are inquests or inquiries. As the Minister rightly said, the Bill puts transparency at the heart of proceedings occurring after disasters. Transparency for the families, freedom of information and the capacity for the public advocate to establish an independent panel are essential parts of what should be a successful reform if we get everything right.
Anna McMorrin
I rise to support absolutely what my right hon. Friend the Member for Garston and Halewood says about the amendments. They are about getting to the truth of what happened, and ensuring there is true transparency and freedom of information. Bereaved families should see justice straightaway; they should not have to go through what many other families have tragically gone through.
Edward Argar
Again, I am grateful to the right hon. Member for Garston and Halewood for tabling amendments 74 and 75, which I will address together. As she set out, the amendments would enable the IPA to establish an independent panel, akin to the Hillsborough Independent Panel, in consultation with victims. As we have said, those affected by the Hillsborough disaster had to wait far, far too long for truth. I again pay tribute to the Hillsborough Independent Panel, which played a crucial role in uncovering the truth and correcting the public narrative after so many years.
I turn to the substance of the amendments. As I mentioned previously, it is worth remembering that the Hillsborough Independent Panel was a non-statutory inquiry set up by the Home Secretary. Non-statutory inquiries are funded by public funds, so it is right that the decision to set one up remains with the Government. As I emphasised earlier, the Hillsborough Independent Panel did not have any data compelling powers. As Ken Sutton, who has been referenced previously and who led the secretariat for the Hillsborough Independent Panel, noted in our oral evidence sessions, the panel was able to access information and documentation without the need for data compelling powers. What is more, it is important to avoid any conflict between different investigatory functions. In my reading of them, the right hon. Lady’s amendments do not clarify what the role of an advocate would be in relation to the panel, how it would work in practice and, crucially, what impact it would have on the support available to victims.
I appreciate that the matter of debate between the right hon. Lady and I is whether the focus should be on support or the investigatory role, and how to draw that line, but if the IPA is primarily focused on supporting victims, signposting and building a relationship of trust with them, could they be considered to be truly impartial in an investigatory role? If they stepped away from their role as an advocate to focus on the work of the panel, would that affect the ability to support victims? I do not posit any direct answers to that, but I pose those questions, to which I suspect we will return subsequently, possibly on the Floor of the House or in discussions outwith this Committee.
I remind Members that the Hillsborough Independent Panel was established many years after the Hillsborough tragedy, which meant that it did not run the risk of undermining or prejudicing any ongoing formal legal proceedings. I note that in the helpful explanatory statement from the right hon. Lady, she states that she believes the panel should be established at an early stage following an incident. I am slightly wary of that and the possible interrelationship with other legal processes. Establishing an independent panel at an early stage—a panel that has the power to require disclosure of all relevant documents and information—could pose a threat to other investigatory processes, particularly criminal trials or other legal proceedings.
No one should suffer the same injustices as those affected by Hillsborough. Their tireless fight for the truth—and the right hon. Lady’s tireless fight for the truth on their behalf—is to be commended, but it should never need to be repeated. Victims and the wider public deserve to know the truth and to get answers to their questions. However, our concern is that the way to achieve this cannot be one that potentially puts a victim’s right to formal legal justice in jeopardy by duplicating or cutting across the work of other investigatory bodies. I recognise that there are questions about independence and the IPA’s power to get to the truth. I am happy to reflect on that further, and to reflect with the right hon. Lady on whether there are other ways that we can seek to achieve what she seeks without the potential legal jeopardy that might exist if it were done in this way.
Maria Eagle
I thank the Minister for his constructive approach to the amendments. I acknowledge that one of the big issues is that if an independent panel were established at an earlier stage, there might be questions about how it would interact with any inquiry, inquest or other ongoing legal proceedings. He is completely correct that by the time the Hillsborough Independent Panel was set up, it had 21 years of every possible legal proceeding imaginable—usually more than once—having taken place. I remember that in the newspaper article Andy Burnham and I put in the Liverpool Daily Post on the morning of the 20th anniversary, one of the reasons I said we should publish all the documentation was that no more legal proceedings were possible. That seemed to be correct at the time that I said it, although it did not turn out to be correct in the event. I acknowledge, though, that there is then an issue that has to be resolved—that is, how it would work if an independent panel were to be set up at an earlier stage and legal proceedings were still possible or ongoing. I acknowledge that my amendments do not deal with that; they were not intended to, but I acknowledge that it is a real public policy issue. I welcome the Minister’s offer to look at that more closely.
The advantage of having transparency at an early point is that one can torpedo cover-ups. There is significant public interest—and, over time, significant amounts of public money are saved—in managing to do so. That is desirable, and I hope we can work together in such a way that finds the best of both worlds. That is what we all want: the best of all possible worlds. If we can do that, we will be doing well. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
With this it will be convenient to discuss the following:
Clause 28 stand part.
New clause 1—Victims of major incidents: registration of death—
“(1) Notwithstanding anything in the Births and Deaths Registration Act 1953 or the Coroners and Justice Act 2009, a qualified informant (within the meaning in those Acts) may register the death of a person who was a victim of a major incident.
(2) Subsection (1) applies even if an investigation is conducted under Part 1 of the Coroners and Justice Act 2009.”
This new clause would enable a qualified informant such as a relative of the deceased to provide information to register the death after a major incident.
New clause 16—Functions and powers of the independent public advocate—
“(1) The advocate may provide such support to victims of a major incident as the advocate considers appropriate in relation to—
(a) the aftermath of the incident;
(b) an investigation by a public authority into the incident;
(c) an inquest under the Coroners and Justice Act 2009 into a death the incident may have caused or contributed to;
(d) an inquiry into the incident under the Inquiries Act 2005;
(e) an independent panel to establish the truth of what happened.
(2) The support provided under subsection (1) may include, for example—
(a) helping victims understand the actions of public authorities in relation to the incident, and how the views of victims may be taken into account;
(b) informing victims about other sources of support and advice, and services, ‘ that may be available in connection with the incident;
(c) communicating with public authorities on behalf of victims in relation to the incident;
(d) assisting victims to access documents or other information in relation to an investigation, inquest or inquiry referred to in subsection (1);
(e) establishing an independent panel in consultation with victims to establish the truth of what happened.
(3) The independent public advocate must report to victims or to such persons as the advocate considers represent one or more victims during any police or other authority’s investigation into the incident regarding—
(a) the progress of the investigation, and
(b) if there are no lawyers representing the families, the implications of engaging lawyers at that stage.
(4) The independent public advocate must report to Parliament—
(a) on an annual basis, summarising their work;
(b) at the conclusion of support relating to a particular event; and
(c) at any other time they identify a need so to do;
and the first such report must be laid before Parliament before the end of 2024.
(5) Following a further request to the independent public advocate by fifty percent plus one or more of the representatives of those deceased due to the event, the independent public advocate must set up a panel which must register as a data controller under the Data Protection Act 2018 and review all documentation relating to the event, the deceased and the representatives and report thereon.
(6) In establishing the panel under subsection (5), the independent public advocate must consult the representatives of those deceased due to the event about the composition of the panel.
(7) Subject to section [disclosure of information to the independent advocate’s panel], all relevant public authorities and other relevant organisations must provide documentation under subsection (5) to an independent advocate’s panel on request from the panel.
(8) An independent advocate’s panel must publish a report into its review of the documentation.”
New clause 17—Disclosure of information to the independent public advocate’s panel—
“(1) Nothing in this section detracts from the duty upon relevant public authorities to provide relevant information to an independent public advocate’s panel on request from the panel.
(2) For the purposes of this section—
“relevant information” includes all information which may reasonably be considered to be related to the cause of the event, the event, and actions taken after the event due to it;
“public authority” has the same meaning as in the Freedom of Information Act 2000.
(3) A public authority may only decline to provide information to the panel if disclosure of that information to the panel—
(a) is not possible for reasons of safeguarding national security;
(b) would, or would be likely to, prejudice the defence of the United Kingdom or of any Crown dependency or overseas territory, or the capability, effectiveness or security of the armed forces of the Crown;
(c) is prohibited by or under any enactment, or would constitute or be punishable as a contempt of court;
(4) A public authority may request that the panel provides an assurance that information provided to the panel will be secured to the same data security standard as used by that authority, and the panel may provide such assurance and use its best endeavours to maintain that standard.
(5) If information is withheld from the panel under subsection (3), the panel must be informed of the subject of the matter being withheld and the reason for that exemption.
(6) Upon receiving a notification that information is being withheld, the panel may apply to the Information Commissioner for a decision whether the public authority has assessed correctly that disclosure is not possible under subsection (3).
(7) Upon receiving an application from a panel under subsection (6), the Information Commissioner must consider the application and issue a decision notice to the panel and to the relevant public authority stating either—
(a) that the public authority has correctly assessed that the information should be withheld; or
(b) that all or some of the information should not be withheld, the steps that the public authority must take to provide the information and the period within which they must be taken.
(8) A decision notice issued by the Information Commissioner under subsection (7) may be appealed by the panel or the relevant public authority to the Tribunal.
(9) If on an appeal under subsection (8) the Tribunal considers—
(a) that the notice against which the appeal is brought is not in accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he or she ought to have exercised his or her discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.
(10) On such an appeal, the Tribunal—
(a) may review any finding of fact on which the notice in question was based; and
(b) shall notify the Lord Chancellor of its decision.
(11) An independent public advocate and any office or officials supporting the work of the independent public advocate are not a public authority for the purpose of the Freedom of Information Act 2000.
(12) In this section, “Tribunal” has the meaning given by section 84 of the Freedom of Information Act 2000.”
Edward Argar
I will speak to clauses 27 and 28, and will return to the new clauses in this grouping once they have been spoken to by the Members who tabled them. Clause 27 sets out that the support an advocate may provide spans from the immediate aftermath of the major incident through to any subsequent investigations, inquests and inquiries, including non-statutory inquiries.
Clause 27 provides an indicative and non-exhaustive list of functions that an advocate may undertake in supporting victims. Those functions include helping victims to understand the processes that follow a major incident and how they can engage with them. They also include: signposting victims to available sources of support and advice; communicating with public authorities on behalf of victims; and ensuring that victims can access the documents and information to which they are entitled. Advocates will act as a conduit between victims and public authorities so that we may know what victims actually need, rather than what we may assume they need.
In setting out the functions of the IPA, it is right not to be overly prescriptive. All incidents will be different, and the needs of victims will be diverse. That is why we have ensured that the clause provides the flexibility necessary to allow an advocate to provide any other support that they consider appropriate. There are only a few exceptions, which are set out in the clause.
Clause 27 prohibits advocates from giving any legal advice or assistance, providing financial support or providing healthcare. The purpose of the IPA is to be a supportive function; it is not intended to duplicate the work of existing bodies, nor to replace support or professional expertise that is already available elsewhere. Advocates will not be expected to be qualified lawyers or healthcare professionals, but they will be able to inform victims about accessing such support.
The IPA will work with investigative bodies to ensure that the views and needs of the victims are known and taken into account, but it will not be an investigative body. I have touched on that before, and I suspect we will return to where that balance should lie. To make it so would risk undermining or duplicating the work of existing bodies. The functions of the IPA as set out in clause 27 are consistent with the approach the Government consulted on in 2018. They provide for the IPA to effectively deliver its aims of advocating for victims with public authorities and allow it to fulfil its intent of supporting victims through the processes that follow a major incident.
Turning to who the IPA will support, clause 27 makes provision for advocates to support victims through a representative—for example, where a victim or a group of victims cannot speak English, or an injured victim is not able to engage directly. The clause prohibits the IPA from directly supporting people under the age of 18. We believe it is appropriate for advocates to work with a child’s parent or guardian, who ordinarily will be best placed to provide information and support in a manner that best suits the child. Clause 27 enables the IPA to support people under the age of 18 through a representative. That ensures that those under the age of 18 are not excluded. Once the individual in question reaches the age of 18, they can then receive the support directly.
Clause 28 amends section 47(2) of the Coroners and Justice Act 2009 to allow an advocate to be an interested person in relation to an inquest into a death caused by a major incident. That will help the advocate to effectively carry out their support functions for the bereaved and to access information relating to the inquest to which they are entitled. Many people will have never had any interaction with the inquest process, and it will be unfamiliar and possibly daunting at a particularly vulnerable time. In order to help the IPA to signpost victims, to amplify their voices, and to ensure that they have access to information to which they are entitled, we believe it is important to amend the 2009 Act to allow an advocate to be an interested person. In practical terms, that will aid the IPA in helping the bereaved to get answers to their questions and to fully participate at inquests on their behalf. I commend clauses 27 and 28 to the Committee.
Anna McMorrin
I will speak to clauses 27 and 28 before moving on to new clause 1. Although the list of functions in clause 27 is welcome, I would like the Minister to assure me that the functions listed are non-exhaustive, and to ensure that the list is not designed to be applied in a rigid way.
I appreciate that clause 28 is designed to make the independent public advocate party to relevant information in relation to inquests. However, I would like the Minister to clarify that the independent public advocate will be allowed to participate properly in an inquest where the family involved want that to happen.
It is a privilege to speak to new clause 1, which was tabled by my hon. Friend the Member for South Shields (Mrs Lewell-Buck). She and her staff have campaigned tirelessly on this issue, and her strong advocacy in this place for bereaved families has brought them a lot of comfort. Some of the constituents of my right hon. Friend the Member for Garston and Halewood also tragically died in the same attack, and she has been heavily involved in the campaign, so I look forward to hearing her comments shortly.
On 22 May 2017, 22 people were murdered in the Manchester Arena terror attack. Two constituents of my hon. Friend the Member for South Shields were among them: Chloe Ann Rutherford, aged 17, and Liam Thomas Allen Curry, aged 19. Both were just teenagers. It is every parent’s worst nightmare, but after sitting through agonising hours of the public inquiry, the families were told that the registration of their precious children’s deaths would not be done by them, but by a stranger. That is what began the campaign. Chloe’s and Liam’s parents understandably feel that they have been denied this final act for their children, stripping them of a vital step in the grieving process.
Under the Births and Deaths Registration Acts 1926 and 1953, which lie with the Home Office, and the Coroners and Justice Act 2009, which lies with the Ministry of Justice, it is standard practice for a coroner to register deaths involving an inquest or inquiry. For the past year, the families have been campaigning to amend the legislation to allow grieving relatives the choice to register the death of a loved one. This issue was first raised in the main Chamber on 1 March 2022—a year and four months ago. The Government had ample time to make the relevant changes to the legislation before the death registrations for those killed in the Manchester Arena attack needed to take place, but as usual they have been too slow to react, despite the previous Justice Minister, the hon. Member for Corby (Tom Pursglove), making promises to look
“at this issue with the utmost priority”.—[Official Report, 25 May 2022; Vol. 715, c. 396.]
Since March last year, my hon. Friend the Member for South Shields has had several meetings with many different Ministers due to the constant chaos and churn of the Government. First, it was the hon. Member for Corby, and then the hon. Member for Clwyd South (Simon Baynes). Then it was back to the hon. Member for Corby, and now the Justice Minister, the hon. Member for Finchley and Golders Green (Mike Freer), is dealing with this issue. There was also a month in which my hon. Friend the Member for South Shields was faced with complete radio silence from all Ministers involved because of the constant conveyor belt of new Ministers coming in and out, with no listed responsibilities. To top it off, the main responsibility for this matter was moved from the Home Office to the Ministry of Justice and no one informed any of those involved. I am sure that the Minister agrees that this oversight is not acceptable, especially when dealing with such a tragic and sensitive case. I hope he will take a co-operative approach to new clause 1 and finally resolve the issue for the sake of the families involved.
On Wednesday 22 February 2023, both my hon. Friend the Member for South Shields and my right hon. Friend the Member for Garston and Halewood met the Home Office Minister, Lord Murray of Blidworth, and the Justice Minister, the hon. Member for Finchley and Golders Green, alongside the bereaved families. During that meeting, however, both the Members and the victims’ families were told that no legislative change would be explored, despite the Government expressing their commitment to
“look at options to change the law in the longer term”
in a letter just one month earlier. The families had waited almost a year for answers. They had travelled to Westminster at their own expense to meet Ministers, only to find the Government had changed their mind. They felt misled, patronised and let down, and they still do to this day. Ministers stated that the changes would be against public policy and would make the framework less effective. However, the changes could be narrow and targeted towards only a small set of circumstances, such as after a mass casualty event, as outlined in new clause 1.
As the inquiry has now drawn to a close with the final report complete, it is with great sadness that I can confirm those two children’s deaths were registered just last week. Their parents travelled to Manchester to be present at the death registration, but current legislation prevented them from doing it themselves. The heartbreaking reality for those families is that time simply ran out for them as they fought the Government on this minor legislative change.
A cruel and unfair two-tier system for death registration is in place. If a child dies in a common circumstance, such as due to a health condition, their parent can personally register their death. However, if they die in a major incident, their parents are denied that last official act. We understand that not all relatives would want to register the death of a loved one, as in most cases an interim death certificate is given soon after the incident for funeral arrangements, but we advocate giving families the choice.
The Government stated in letters to my hon. Friend the Member for South Shields that it may be too distressing for relatives to register the deaths, but in normal circumstances a relative has no choice but to personally register the death. Now that the deaths of Chloe and Liam are officially registered, the families must request a copy of the death certificates from the registry office in Manchester. If the Government were genuinely concerned about causing distress to families, that step would not be in place either.
In the latest correspondence from the Government to the hon. Member on this matter in March, which I have a copy of here, Lord Murray set out what happens when the coroner records the death after an inquest has taken place. He said,
“This ensures that the inquest and registration details fully align, while also removing exposure to any risk of outside interference or alteration.”
That is heartless and an insult to those families who have lost loved ones. Bereaved families have no intention or wish to alter the findings of the inquest and the coroner. They simply wish to state their personal details on their child’s death certificate as a final step in their grief and to officially register them as dead. I am sure the Minister will understand that and what it means for parents to record the deaths of their loved ones, and I hope he will agree to the new clause. The Government prolonged Chloe’s and Liam’s parents’ grief; all those parents want is for their children’s legacy to be that no other family goes through what they did ever again.
Maria Eagle
I wish to say something about new clauses 16 and 17, but also new clause 1 because I have had an involvement in this matter. I have constituents who lost their 15-year-old daughter, Megan Hurley, in the Manchester Arena bombing. They were similarly upset to discover they would not be allowed to register the death of their daughter. As Megan’s mum said to me, “We were able to register her birth. This is the last thing we can do for her, but we’re not allowed.”
These parents caught up in the disaster have had to go through six years of this process. It has been an improved process because the inquest and the public inquiry went hand in hand and were led by the same judge—instead of being consecutive and thus doubling the length of time these things take and forcing families to listen to it all twice, they have happened in tandem—but although the overall timescale has been shortened, it has still been years. It simply adds to the feeling of powerlessness, and of something being done to them, that the Hurley family have been unable even to register the death of their daughter because they are barred from doing so by statute.
Edward Argar
I thank the hon. Member for Cardiff North and the right hon. Member for Garston and Halewood for tabling their new clauses.
New clause 1 seeks to provide families bereaved by a major incident with a role in registering the death of their loved one. I pay tribute to the work of the hon. Member for South Shields, with whom I have spoken on a number of occasions. She is passionate in her advocacy on behalf of her constituents and for change in this area.
This is an important and sensitive but none the less complex issue. I pay tribute to the commitment of the families bereaved by the Manchester Arena attack in their campaign to secure a role for bereaved families in the registration of their loved one’s death following an inquest. I am very much aware that any action would come too late for them, as their children’s deaths have now been registered, following the conclusion of the inquiry and inquests.
The Government are committed to ensuring that bereaved people remain at the heart of the inquest process and are able to fully participate in it. It is also important that we uphold the integrity of that process. A death that is reported to the coroner cannot be registered until any inquest has been completed. That is where all the facts, including the personal details of the deceased, are established. The legislation requires the coroner to provide that information directly to the registrar. All death registrations, whoever reports them, are formally completed by the registrar.
May I gently correct one point made by the hon. Member for Cardiff North, who asked why it was only the victims of major incidents who are in this position? It is not: it is anyone whose death is considered by a coroner or an inquest. Coroners and inquests do not just look at these issues; they look at unexplained deaths in a number of other circumstances. We have to be a little bit careful about that.
The reason I mention that point is that the hon. Member made a point about a two-tier approach. We have to be conscious that there would potentially still be a different approach, depending on whether someone was the victim of a major incident, if this approach were adopted, or whether it was another unexplained death, where the coroner would still be the person reporting that to the registrar. I make that point for context, not necessarily with prejudice to what I am about to say.
The Government understand the seriousness of this matter. The Home Office has set out that it is committed to seeing what can be done via non-legislative means. The General Register Office has also offered the families bereaved by the Manchester Arena attack the option of being present at the registration of their loved one’s death. I appreciate that that does not go as far as they would wish and does not resolve the fundamental concerns, or go as far as the new clause would.
My concern, however, is that the new clause would not achieve its objective, because although it disapplies part of the complex framework provided for by the Coroners and Justice Act 2009 and the Births and Deaths Registration Act 1953, it does not provide for an alternative new legal mechanism to achieve that objective—it removes the challenge but does not provide a new mechanism. It would also assign to a qualified informant the actual duty of registration itself. That goes well beyond the role of a coroner in an inquest death or of a qualified informant in a non-inquest death. Regardless of the context, the statutory responsibility for registration is, and must remain, the registrar’s alone. We are debating who it is that should give the registrar the information to complete the legal process.
The new clause is explicitly limited to those bereaved by a major incident. The trauma of losing a loved one in that way is unimaginable, but thankfully only a tiny proportion of inquest deaths occur in such circumstances. We would need to reflect carefully on the fact that the change that the new clause seeks to introduce would be unavailable to the vast majority of families whose loved one’s death is subject to an inquest. That is not to gainsay what the hon. Member for Cardiff North is trying to do, but it is important to highlight that there would still be a difference in approach.
Anna McMorrin
I understand the points that the Minister is making about the legal wording, but this is such a deeply rooted issue. He refers to a small number of families, but the impact goes far wider. I wonder whether he could seek to find a form of legal language that would allow the change to take place, or whether we could work together on the new clause to ensure that it takes place, so that the families can register the deaths.
Edward Argar
I am grateful to the hon. Lady; I was about to come to this point. A number of issues would need to be considered here, including whether a dual approach would be created for those bereaved whose circumstances are considered by an inquest such that a major incident qualifies for one route and others do not. We would need to reflect on that.
For the reasons that I have set out—drafting and the other factors that I have highlighted—the Government cannot support the new clause, but I am sympathetic to its underlying intent and the issues behind it. I recognise that the issue crosses over Ministry of Justice and Home Office ministerial responsibilities, so I commit to reconsidering, with ministerial colleagues across Government, whether there is more that can be done—and if so, how—with a view to seeing whether progress can be made prior to Report.
I do not want to raise expectations beyond saying that I will reconsider the position on this matter. As the right hon. Member for Garston and Halewood said, we have time over the summer to do so and to reflect on the issues with the new clause that I have highlighted. I commit to working with her and the hon. Member for South Shields and having another look at this.
I am grateful to the right hon. Member for Garston and Halewood for tabling new clause 16, which relates to the functions and powers of the independent public advocate. In our view, clause 27 already covers the majority of new clause 16(1) and (2). Subsection (1)(e) refers to the power to establish
“an independent panel to establish the truth of what happened.”
Subsection (5) would require the panel to then register as a data controller.
The new clause, along with many of the amendments that we have debated today, whose intent I entirely understand, would move the focus of the IPA away from a support function and towards more of an investigatory function. In seeking to do that, the right hon. Lady has been dextrous in the drafting of her amendments. As I have set out, it is not something that the Government will support, because our focus is more on the support function, but I suspect that we will return to the matter. I also restate that the Hillsborough Independent Panel, which is what the new clause’s independent panel is modelled on, did not have data-compelling powers.
Subsection (6) stipulates that the families must be involved in deciding the composition of the independent panel. Subsection (7) would require all relevant public authorities and other relevant organisations to provide documentation to the independent panel. Subsection (8) would require advocates to publish a report on their review of the documentation.
Those measures do not clarify the role of the advocate in relation to the panel. If they build a close relationship with the families, would they be considered impartial enough to sit on or even lead an independent panel? I am not prejudging the answer to that question, but I pose it because it highlights some of the challenges around clarifying how this would work. For example, are there any parameters on when an advocate can publish a report? What if the material or timing would potentially prejudice an ongoing investigation or trial? Those are all matters that would require careful consideration to avoid unintended consequences.
On subsection (3), the policy intention is already for advocates to keep victims informed about any investigations, but it is only right that this is done in a manner and at a point that will not prejudice any such investigation.
On subsection (4), the Bill already includes provision on the IPA’s reporting function and duties in clause 29. I note that subsection (4) is duplicated in the right hon. Lady’s amendment 78 to clause 29, so it is perhaps more appropriate if I address it, along with the IPA’s reporting functions as a whole, when we discuss that clause.
In summary, many of the measures in new clause 16 are, in our view, already covered by the Bill. The subsections that refer to an independent panel and data controller powers change the purpose of the IPA. That is a matter for debate between both sides of this Committee, although I suspect it will be between the right hon. Lady and me in the first instance.
Maria Eagle
I beg to move amendment 76, in clause 29, page 21, line 38, leave out from beginning to the first “the” on line 39.
This amendment removes the requirement for the Secretary of State to instruct the Independent Public Advocate to issue a report.
The Chair
With this it will be convenient to discuss the following:
Amendment 77, in clause 29, page 21, line 39, leave out “the Secretary of State” and insert “Parliament”.
This amendment ensures that the Independent Public Advocate reports to Parliament.
Amendment 78, in clause 29, page 22, line 1, leave out from beginning to end of line 10 and insert—
“(2) The Independent Public Advocate must report to Parliament —
(a) on an annual basis, summarising their work;
(b) at the conclusion of support relating to a particular event; and
(c) at any other time they identify a need so to do;
and the first such report must be laid before Parliament before the end of 2024.”
This amendment ensures that the Independent Public Advocate reports to Parliament rather than the Secretary of State at least annually in respect of each major incident.
Amendment 79, in clause 29, page 22, line 13, leave out from beginning to end of line 23.
This amendment ensures that the Independent Public Advocate reports to Parliament rather than the Secretary of State at least annually in respect of each major incident.
Maria Eagle
I am sure hon. Members will be glad to note that this is my last group of amendments on today’s selection list. I do not intend to detain the Committee for too much longer.
Amendments 76 to 79 would ensure that the public advocate reports to Parliament, rather than to the Secretary of State, and that he does so on a regular rather than on an ad hoc basis. There is always a great deal of public interest in the aftermath of disasters, and there are usually MPs who have constituents with a particular interest in getting as much information as possible about what is happening in the months and years following any such disaster. They, and those affected, have an overwhelming interest in getting to the truth and having, as soon as possible, a clear exposition of what has gone wrong.
Clause 29, as currently drafted, requires the advocate to report to the Secretary of State only if he is sent a notice to do so by the Secretary of State. What is in the report is specified by the Secretary of State, although there is an arrangement under clause 29(4) for the advocate to include in his report other matters that he considers relevant. However, although the Secretary of State must publish the report, he must do so only
“as the Secretary of State thinks fit”—
and presumably when he thinks fit. There are also to be redactions for data protection and the catch-all public interest exemption, which means that any report that is published may well have worrying and suspicious omissions or black lines through its text.
I can be very clear with the Committee that publications dealt with in that way—with redactions by the Secretary of State, and published only via the Secretary of State when he gets around to it—will do nothing other than fuel controversy about cover-ups. They are the very antithesis of the kind of reporting and transparency envisaged under the Bill that Lord Wills and I have brought forward. It would inspire more confidence if the public advocate reported on a regular basis to Parliament, so that it was clear that there had been no interference. It would be much better, if at all possible, to ensure there were no redactions.
The Government’s current proposals really will not do the job. I can see any such arrangements being viewed by bereaved families and victims not as something they can rely on and have confidence in, but as yet another part of the state machinery conspiring to keep them from the truth of what has happened to their loved ones, and to protect the state agencies in the line of fire. Whether or not that is true, that is what it will look like to those affected by the disaster.
I urge the Minister to let go of the control freak tendencies that appear to have been prevalent when civil servants were given policy decisions and thereafter gave some instructions to parliamentary counsel. I recognise that he may have inherited them from predecessors or even had them passed down from the predecessor of the current Lord Chancellor, who I hope has more sense than to think of the current drafting as a good idea. I hope he will change the way in which this report-writing clause is legislated for. The Minister cannot go wrong if he arranges for the report—unredacted, please—to be made to Parliament, when there will be significant public interest following any disaster. What could be more transparent than that?
Edward Argar
I am grateful to the right hon. Member for Garston and Halewood for her amendments 76 to 79. As they would all amend clause 29, which focuses on the reporting function of the independent public advocate, I will address them together.
Collectively, the amendments would remove the requirement for the Secretary of State to instruct the IPA to issue a report; would require the IPA to report to Parliament rather than the Secretary of State, and to do so either periodically or at specified time periods; would remove the Secretary of State’s discretion over how to publish the advocates’ report; and would remove the ability for the Secretary of State to omit material if they consider it to be contrary to the public interest or to contravene data protection legislation.
Before I take each of those points in turn, providing clarity on our intention behind the drafting, I want to reiterate that I fully endorse the underlying principle of transparency and the ability of the IPA to highlight the experience of victims, call out issues and make recommendations that hold public authorities to the proper standard. I wholeheartedly believe in the importance and value of reports produced by those in a position to speak with authority on the experiences of victims, because they are a tool not only for getting to the truth, but for learning and for seeking to avoid the repetition of particular events or experiences. That is clearly illustrated in Bishop James Jones’s report.
I turn to amendment 76. The intention behind clause 29(1) is to provide an oversight role for the Secretary of State whereby reports are issued once requested, so the Secretary of State can ensure that the advocates produce reports only during periods when there are no active criminal investigations into the incident or ongoing inquiry proceedings. If the advocates issued a report during those periods, there is a risk that the content of the report would prejudice or undermine the conclusions of any legal investigatory processes.
Jess Phillips (Birmingham, Yardley) (Lab)
I think Parliament has pretty well-defined ways to ensure that things are not discussed in Parliament or called for in Parliament when they could create a problem of sub judice. That exists already, so I suggest that that concern is not a founded one.
Edward Argar
I gently say to the shadow Minister that while those processes exist, they are—as we have seen from admonitions from Mr Speaker—not always adhered to by right hon. and hon. Members, who on occasion are called to order for straying into sub judice matters on the Floor of the House. Although a process exists by which the Speaker can rule and can admonish, it is not universally the case that all right hon. and hon. Members will fully adhere to that without having to be called up by the Speaker. We need a degree of caution with respect to legal proceedings, particularly as we are seeking not only transparency but justice for victims and survivors. I would be very wary of anything that could even potentially prejudice that.
The Secretary of State can ensure that IPA reporting occurs only during appropriate periods in the aftermath of an incident. I reassure the right hon. Member for Garston and Halewood that if the advocates wish to produce a report when it has not been requested, they can still contact the secretariat and consult with the Secretary of State. Of course, any such requests will be properly and fully considered. Although I understand and appreciate the desire for advocate agency in the reporting function of the IPA, I believe that the current drafting of subsection (1) will ensure that that is balanced against the need to consider the wider context of any report’s content.
Turning to amendment 77, I reassure hon. Members that under the clause, the Secretary of State must publish any report that they receive from the advocates. It is our intention that those reports be published as swiftly as possible, notwithstanding previous comments. When it is most appropriate for the reports to be laid before Parliament or referred to the relevant Committee, I reassure hon. Members that they will be.
However, as was alluded to just now, there may be instances when it is more appropriate for the report to be published through other means, especially if it is an interim progress report. Having the advocates report to the Secretary of State ensures that discretion can applied in deciding on the most appropriate method, whether that is laying a report before Parliament or publishing it on the IPA or gov.uk website. Again, that depends on the report’s content and nature, and other proceedings. If the report is published on a website, it will be publicly available, and can still be discussed in Parliament in a debate secured by the usual means.
I want to clarify that our clauses do not prohibit reporting at any of the points set out in amendment 78, or indeed sooner, if the Secretary of State makes a request. It is likely that while an incident is active, the Secretary of State will request an annual report from the IPA, and a report after the conclusion of an incident.
Maria Eagle
It sounds to me as though the Minister is accepting the amendment.
Edward Argar
I gently ask the right hon. Lady to let me make a bit more progress. She may not be so confident when I have finished; we will see. As I previously stated, if the advocates wish to report when they have not been requested to, they can raise that with the secretariat, which will then consult the Secretary of State, who will consider any requests carefully. The inclusion of provision giving the Secretary of State discretion allows for the required flexibility when it comes to the frequency of reports.
Jess Phillips
As I rise to my feet, news is emerging that the courts have forced the Government to give in to Lady Hallett on the covid report, and to reveal something that they went to court to try to hide. One can understand concerns about what may get hidden. Also, during this Committee, we have debated an amendment on sex offenders changing their names. There is a Government report on that issue that has never been allowed in public or in front of Parliament. Even Committee members who are seeking to debate it have not seen it. I am sure the Minister understands that the discretion of Government Departments is not something that we—certainly not I or the public—feel we can always rely on.
Edward Argar
I will make a couple of points. First, in my view there needs to be a degree of discretion, as there always has been under Governments of both the hon. Lady’s party and ours. That has generally always been the approach. Secondly, I want to gently clarify a point about what the Paymaster General said. That court case was not about hiding anything; it was about clarifying the lines and the boundaries of the inquiry, what is and is not admissible material, and getting a definitive court judgment, which we now have. I gently correct her point.
Edward Argar
She may take a different view, as of course she is entitled to, as a matter of debate.
Edward Argar
Amendment 79 would remove the Secretary of State’s discretion over how to publish the advocates’ reports.
Janet Daby (Lewisham East) (Lab)
The Minister may recall that during an evidence session, I asked Lord Wills whether he thought it was acceptable that the Bill requires the Secretary of State to publish a copy of the report made by the independent public advocate in whatever manner they considered appropriate. He replied that it was an example of the Bill giving the Secretary of State “too much unfettered discretion”, as one of my hon. Friends has said. Could the Minister respond to that?
Edward Argar
Although I have a huge amount of respect for the noble Lord Wills, I disagree with him on that point, hence the approach that the Government are taking in this legislation. If the hon. Lady allows me to make a little more progress, I might give her a little encouragement—maybe more than a little—in that respect.
I have already set out that where it is most appropriate for the reports to be laid before Parliament or referred to the relevant Committee, they will be. Amendment 79 would also remove the Secretary of State’s ability to omit material from the report that would be contrary to the public interest or contravene data protection legislation. Although I am sympathetic to the intention behind these amendments, I believe that the public interest and data protection legislation are important. The purpose of the public interest test is to ensure that appropriate consideration is given to sensitive information, such as matters that relate to national security. That is consistent with the approach taken in the Inquiries Act 2005, and ensures that there are no unintended negative consequences as a result of disclosing information that could impact national security.
Maria Eagle
I am slightly disappointed by the Minister’s response on what seemed to me a straightforward set of amendments that would simply increase transparency. I heard what he said about further work. I am slightly worried that he is saying that there will not be any reports from the IPA until after every possible kind of legal action has ended. That worries me, because we are then talking years. That will not inspire confidence in families affected by disasters. However, given that the Minister has tried to be constructive, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Anna McMorrin
I beg to move amendment 25, in clause 29, page 22, line 15, at end insert—
“(5A) An advocate must provide periodic reports, at least annually, to the Secretary of State, regarding relevant events and occurrences.
(5B) In any case where an advocate is of the opinion that the duty under section [major incidents: duty of candour] has not been discharged, and the matter has not been effectively resolved, a report shall be sent to the Secretary of State as soon as possible.
(5C) The Secretary of State shall lay before Parliament any reports received under (1) and (2) within 14 days of receipt, and where appropriate, refer the content to relevant Parliamentary committees.”
This amendment would require a public advocate to provide reports to the Secretary of State about relevant events and to report if, in their opinion, public authorities or public servants have not complied with the duty of candour in NC3.
The Chair
With this it will be convenient to discuss new clause 3—Major incidents: duty of candour—
“(1) In discharging their duties in relation to a major incident, public authorities and public servants and officials must at all times act within their powers—
(a) in the public interest, and
(b) with transparency, candour and frankness.
(2) If a major incident results in a court proceeding, official inquiry or investigation, public authorities and public servants and officials have a duty to assist—
(a) relating to their own activities, or
(b) where their acts or omissions may be relevant.
(3) In discharging the duty under subsection (2), public authorities and public servants and officials shall—
(a) act with proper expedition;
(b) act with transparency, candour and frankness,
(c) act without favour to their own position,
(d) make full disclosure of relevant documents, material and facts,
(e) set out their position on the relevant matters at the outset of the proceedings, inquiry or investigation, and
(f) provide further information and clarification as ordered by a court or inquiry.
(4) In discharging their duty under subsection (2), public authorities and public servants and officials shall have regard to the pleadings, allegations, terms of reference and parameters of the relevant proceedings, inquiry or investigation but shall not be limited by them, in particular where they hold information which might change the ambit of the said proceedings, inquiry or investigation.
(5) The duties in subsections (1) and (2) shall—
(a) be read subject to existing laws relating to privacy, data protection and national security,
(b) apply in a qualified way with respect to private law and non-public functions as set out in subsection (6), and
(c) not be limited by any issue of insurance indemnity.
(6) The duties in subsections (1) and (2) shall be enforceable by application to the relevant court or inquiry chairperson by any person affected by the alleged breach, or the court or inquiry may act of its own motion. Where there are no extant court or inquiry proceedings, the duties may be enforced by judicial review proceedings in the High Court.”
This new clause would require public authorities and public servants and officials to act in the public interest and with transparency, candour and frankness when carrying out their duties in relation to major incidents.
Anna McMorrin
Again, I want to mention INQUEST, Hillsborough Law Now and Justice, the organisations working with me on these provisions. There is an urgent need to introduce a duty of candour for those from across the public services, such as policing, health, social care, and housing, when a major incident occurs. A duty of candour would place a legal requirement on organisations to approach public scrutiny, including inquiries and inquests into state-related deaths, in a candid and transparent manner. The duty would enable public servants and others delivering state services to carry out their role diligently, while also empowering them to flag dangerous practices that risk lives.
Institutional defensiveness has been found to be a pervasive issue in inquests and public inquiries; we heard about that today. It causes additional suffering to bereaved persons, creates undue delay to inquests and inquiries, undermines public trust and confidence in the police, and undermines a fundamental purpose of inquests and inquiries, which is to understand what happened and to prevent recurrence. Establishing a statutory duty of candour when major incidents occur would go some way to addressing those issues.
Justice’s report, “When Things Go Wrong: the response of the justice system”, found that in both inquests and inquiries,
“lack of candour and institutional defensiveness on the part of State and corporate interested persons and core participants are invariably cited as a cause of further suffering and a barrier to accountability”.
In his Government-commissioned report on the experiences of the Hillsborough families, the Right Rev. James Jones concluded that South Yorkshire police’s
“repeated failure to fully and unequivocally accept the findings of independent inquiries and reviews has undoubtedly caused pain to the bereaved families”.
During the evidence sessions, when asked if a duty of candour should be extended to include public servants, the Right Rev. James Jones answered:
“Yes, I think that there should be a duty of candour on all public officials. Anybody who accepts public office should bind themselves according to their own conscience to speak with candour and not to dissemble when called upon to give the truth and an account of what has happened.” ––[Official Report, Victims and Prisoners Public Bill Committee, 22 June 2023; c. 90, Q173.]
Janet Daby
Does my hon. Friend agree that duty of candour is a serious issue? It is so serious that I cannot think of anybody who, during the evidence sessions, did not agree that duty of candour should be extended to include public servants.
Anna McMorrin
My hon. Friend is absolutely right. A lack of candour frustrates the fundamental purpose of inquests and inquiries, as we heard in the evidence sessions. Candour is essential if we are to reach the truth and learn from mistakes, so that similar tragedies do not occur in the future.
Public bodies such as the police have consistently approached inquests and inquiries as though they were litigation. They have failed to make admissions, and often failed to fully disclose the extent of their knowledge surrounding fatal events. For example, South Yorkshire police have been repeatedly criticised for their institutional defensiveness in respect of the awful Hillsborough tragedy in 1989. A 1989 briefing to the Prime Minister’s office on the interim Taylor report on the Hillsborough disaster noted that
“senior officers involved sought to duck all responsibility when giving evidence to the Inquiry”.
It went on to say:
“The defensive—and at times close to deceitful—behaviour by the senior officers in South Yorkshire sounds depressingly familiar. Too many senior policemen seem to lack the capacity or character to perceive and admit faults in their organisation.”
A statutory duty of candour would compel co-operation, and so enable major incident inquests and inquiries to fulfil their function of reaching the truth, so that they can make pertinent recommendations that address what went wrong and identify learning for the future.
Failure to make full disclosure and act transparently can lead to lengthy delays as the investigation or inquiry grapples with identifying and resolving the issues in dispute, at a cost to public funds and public safety. A recent example is the Daniel Morgan independent panel, which was refused proper access to HOLMES, the Home Office large major enquiry system, by the Metropolitan Police Service over seven years. The panel needed access to HOLMES to review the investigations of Daniel Morgan’s murder, but the lengthy negotiations on the panel’s access led to major delays to its work. The delays added to the panel’s costs and caused unnecessary distress to Daniel Morgan’s family, and the panel concluded that the MPS was
“determined not to permit access to the HOLMES system”.
A statutory duty of candour would significantly enhance participation in inquiries by bereaved people and survivors, as it would ensure that a public body’s position was clear from the outset, and so limit the possibility of evasiveness. The duty would also direct the investigation to the most important matters at an early stage, which would strengthen the ability of the inquiry or investigation to reach the truth without undue delay. By requiring openness and transparency, a statutory duty of candour would assist in bringing about a culture change in how state bodies approach inquests and inquiries. It would give confidence to members of an organisation who wanted to fully assist proceedings, inquiries and investigations, but who experienced pressure from their colleagues not to do so. It would compel co-operation with proceedings, inquiries and investigations, dismantling the culture of colleague protection—for example, in the police service.
I am sure the Minister is aware that my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) has committed a Labour Government to introducing a Hillsborough law. That would place a duty of candour on all public bodies, and those delivering state services, going through inquests or investigations. I am sure the Minister will understand the compelling reason for strengthening the Bill, and will voice his support for the amendment and new clause.
Maria Eagle
I rise very briefly to support my hon. Friend’s amendment. A statutory duty of candour is an essential part of giving confidence to families caught up in public disasters. The Hillsborough law, proposed by the Right Rev. James Jones in his 2017 report to the Government, “The Patronising Disposition of Unaccountable Power”, said as much. It is extraordinary that all these years later, we still do not have a Government response to that report, even though the report was delayed while criminal prosecutions were ongoing. They ended two years ago, and we still have not had the final response from the Government. We were promised it in spring this year. It is now summer. I was promised it by December 2021 in a debate on the Floor of the House, and it has not happened.
I really do not see what is holding up the response. I hope it is not that the Government do not want to implement its findings and points of learning, one of which was that the statutory duty of candour ought to be legislated for. I hope that the Minister can tell us when the response to that report will be published, because spring is long gone. The response is long overdue. The Hillsborough Law Now campaign would be pleased to hear from the Minister on whether the statutory duty of candour, the equality of arms at inquest and the other recommendations of Bishop James Jones will be accepted.
Edward Argar
I am grateful to the hon. Member for Cardiff North for amendment 25 and new clause 3. I reassure her that Parliament will be kept up to date and made aware of any findings of the IPA. It would perhaps be helpful if I explained a little further the intention behind the measures. I addressed the effect of proposed new subsections (5A) and (5C) of amendment 25 when responding to amendments 77 and 78 tabled by the right hon. Member for Garston and Halewood. As I said then, the Bill does not prohibit annual reporting, and it is likely that while the IPA is active, an annual report will be requested. Additionally, it is our intention that any reports will be published as soon as possible, and when it is most appropriate to do so, they will be laid before Parliament or referred to the relevant Committee.
Proposed new subsection (5B) in amendment 25 and new clause 3 both relate to the duty of candour. I reiterate to the Committee that I fully understand that at no point is candour and transparency more important than in the aftermath of a major incident. The bereaved families and friends of the victims have an absolute right to understand what happened to their loved ones, and to understand what went wrong so that lessons can be learned. The Hillsborough families were denied that right in the months and years following the awful events of April 1989. Specifically, Lord Justice Taylor commented on the defensiveness and evasiveness of South Yorkshire police, but in truth, the families experienced obfuscation from a wide range of public bodies and agencies. It took decades of campaigning before it was established by fresh inquests that the 97 victims were unlawfully killed. I pay tribute to the Hillsborough families’ strength and tenacity in their prolonged campaign to ensure that other bereaved families do not suffer as they have.
The landscape in relation to duties and obligations on public servants has changed significantly since 1989. Most notably, the Inquiries Act 2005 places legal duties on participants, and there are sanctions for failure to comply. More recently, following the publication of Bishop James Jones’s report on the Hillsborough families’ experiences, the Home Office legislated for a duty of co-operation, which means that all police officers now have an individual responsibility to give appropriate co-operation during investigations, inquiries and formal proceedings, and to participate openly and professionally, in line with the expectations that we have for police officers, when identified as a witness. As I have said, a failure to co-operate is a breach of the statutory standards of professional behaviour by which all officers must abide, and could result in disciplinary sanctions, including dismissal.
We recognise that there is more to be done to ensure that public authorities are clear on the requirements on them in the aftermath of a major disaster. My right hon. and learned Friends the Lord Chancellor and Home Secretary recently met with some of the Hillsborough families to talk to them about the work done to address the failures identified by Bishop Jones, and to talk through the forthcoming Government response to the bishop’s report. That response will set out the Government’s position on the bishop’s points of learning on candour, and on the Hillsborough law and next steps. Ahead of that, it would not be right to impose a duty on advocates to report on the discharge of the duty. I will disappoint the right hon. Member for Garston and Halewood, but I cannot give her a date. However, I am reassured by ministerial colleagues that the report and response will be published shortly.
I am happy to return to this topic on Report, once that report and response can be read in the round. The right hon. Lady is always constructive, but I appreciate her disappointment. She would, at the least, like a date. I apologise, but I cannot give her that; I can say that it is due to be published shortly. In the light of that, I encourage the hon. Member for Cardiff North not to press the amendment. I have no doubt that we will return to the issue on Report.
Anna McMorrin
I am disappointed by the response on the amendment, new clause 3 and the request of my right hon. Friend the Member for Garston and Halewood for a response to the report that was published in 2017—more than six years have gone by since then. I hope that the Minister can guarantee that response before the end of the Committee; that gives him an extra week.
Anna McMorrin
Although I am disappointed, I will not press the amendment to a vote. I hope that we will continue discussion of the importance of the duty of candour, and ensure that it is a core element of the Bill. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Anna McMorrin
I beg to move amendment 23, in clause 29, page 22, line 18, leave out paragraph (a).
This amendment would remove the Secretary of State’s ability to omit material in the advocate’s report if they believe it is contrary to the public interest.
I think this is my last amendment; I am grateful to the Committee. The amendment, similarly to my previous amendments, seeks to ensure the independence of the independent public advocate. Again, I give my deep thanks to Ken Sutton, secretary to the Hillsborough Independent Panel, for his continued support and work on these issues. The fact that the independence of the independent public advocate is being debated should be a worry for us all. The clause relates to the reporting process for the advocate. This clause states that the Secretary of State can require the advocate to produce a report on the investigation processes, but that the report can be redacted by the Secretary of State on public interest grounds. The amendment seeks to rectify that.
Yet again, a provision of the Bill is undermining the independence and transparency of the IPA’s role. This is another example of the Government suggesting that they believe in an independent body, but then restricting it in a way that completely contradicts that notion. Redacting the work of the supposedly independent IPA is hopeless. We cannot subject someone’s work to redaction while claiming that they have independence.
Why does the Minister think that the public will trust the Government to redact the IPA’s work in a way that does not serve their own interests? We are going back to the whole question of trust. The responsibility to report to Parliament should, at the very least, encourage a feedback loop that ensures that Government conduct can, through the fact-finding process and in its aftermath, be properly scrutinised by the legislature and, more generally, the public. That will not happen if the clause is left unamended. During our evidence sessions, Lord Wills echoed my concerns and stated:
“As I understand the Government’s proposals, the independent public advocate will not have the right enjoyed by the independent reviewer of terrorism legislation, for example, to be an independent office that has the right to produce reports on its own initiative.”––[Official Report, Victims and Prisoners Public Bill Committee, 22 June 2023; c. 91, Q176.]
The failure to address concerns expressed about the independence of the supposedly independent public advocate demonstrates that lessons are not being learned from Hillsborough. When the next major incident occurs—which, unfortunately, it will—we will be discussing not legal terminology, but human tragedy. I hope the Minister heeds our calls and ensures genuine independence for the independent public advocate.
Edward Argar
I am grateful to the shadow Minister for the amendment, which would remove the Secretary of State’s ability to omit material in the advocate’s report if they believe it is contrary to the public interest. I am conscious that amendment 23 is similar in nature to amendment 79, to which I spoke earlier. It may be helpful, however, if I briefly revisit why the Government thought it necessary to include in the Bill the ability for the Secretary of State to omit material that, if published, would be contrary to the public interest.
Although I sympathise with the intention behind the amendment, this ability for the Secretary of State is vital for national security and is not novel—parallel provisions were included by the previous Labour Government in the Inquiries Act 2005 for, I would assume, that reason. Removing a Secretary of State’s ability to omit material from the reports that the IPA produces would risk being contrary to the public interest and could contravene data protection legislation. This is a necessary measure to ensure that sensitive materials, such as those relating to national security or an ongoing investigation, are protected.
There is no question but that advocates will have valuable insights and I am committed to ensuring that the IPA can speak freely and that the substance of what they have to say is made public. I want to stress once again that the discretionary powers of the Secretary of State will be used only when and where absolutely necessary. We have an obligation to be transparent, but it is also important for us to keep all our citizens safe and ensure that information is shared responsibly. Clause 29 strikes the right balance in that regard. However, I am, as with previous clauses, always happy to reiterate my commitment to speaking further with hon. Members to get it right on the IPA’s reporting functions, as I know that has been the focus of many amendments reflecting broader concerns.
Anna McMorrin
I am disappointed because I think the amendment would really strengthen the Bill, as would amendment 79 tabled by my right hon. Friend the Member for Garston and Halewood. The Government may not support this amendment, but why could they not instead subject the IPA to a protocol of disclosure similar to that of the Hillsborough Independent Panel? Can the Minister respond to that now?
Edward Argar
It would be premature for me to say anything like that at this point. I draw the hon. Lady’s attention, as I said, to this being replicative of the provisions put in place by the last Labour Government in the Inquiries Act 2005. I will reflect on what she says, but I cannot commit to going further than that.
Anna McMorrin
I thank the Minister for agreeing to reflect on the issue. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clause 29 allows the Secretary of State to request a report from an advocate while they are supporting victims of a major incident and at the conclusion of that support. The Secretary of State will have the discretion to specify the matters that the report must address and the timeframe within which the report is to be completed. The clause also provides advocates with the ability to include any points or topics that they think are relevant to the incident in respect of which they are appointed.
One of the main objectives of the IPA is to ensure that the voices of victims of a major incident are amplified and heard. An advocate will work with victims from the immediate aftermath of a major incident and help them to navigate the different state processes. A report may be on a specific issue to which attention should be drawn during the investigations, or the Secretary of State may request a report at the conclusion of all proceedings to share the victim experience and identify areas for improvement in future. We have seen the impact that such reports can have—perhaps none more powerful than the bishop’s report on the experience of the Hillsborough families. It is the Government’s intention that such reports may include recommendations, which would be valuable to inform wider public policy on support for victims of major incidents.
Clause 29 further places an obligation on the Secretary of State to publish any reports produced. That ensures transparency and accountability. As is standard, the clause makes clear that certain material related to the public interest and personal data may be omitted. I want to make clear, as I have during debates on previous amendments, that that exception is not designed to suppress uncomfortable truths but to protect important matters of national security or an individual’s personal data, for example. It mirrors provisions in the Inquiries Act 2005. We are committed to the IPA’s operational independence and will carefully consider the content of any reports produced, with the aim of being as transparent as possible.
Anna McMorrin
I simply say that I think the arguments that I set out in my amendments and new clauses still stand. The clause states that the Secretary of State can require the advocate to produce a report on the investigation processes, but that the report can be redacted by the Secretary of State on public interest grounds. Amendment 23 seeks to rectify that, while amendment 25 and new clause 3 seek to ensure the transparency and openness that the Minister speaks about. They would add not only that additional strength to the Bill but, most importantly, that trust.
Edward Argar
I am grateful to the shadow Minister for her comments, and, with that, I commend the clause to the Committee.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
Clause 30
Information sharing and data protection
Edward Argar
I beg to move amendment 35, in clause 30, page 23, line 1, leave out “a disclosure or” and insert “the”.
This amendment and Amendments 36 and 37 omit references to the disclosure of information. Processing, which here has the same meaning as in the Data Protection Act 2018, includes disclosure and other uses of information, so there is no need to refer separately to disclosure.
Edward Argar
This may be my briefest exposition yet. This is the final group of minor and technical amendments here, which we are putting forward to ensure that consistent terminology is used in relation to data protection. The changes are primarily for the purposes of clarifying the provisions and ensuring that they work as intended.
Anna McMorrin
Well, I won’t comment on that, Mr Hosie. I would just like to say, very briefly, that I would like the Minister to provide the assurance that the IPA will be granted the authority to be given all the information that they require relevant to their role, and, further to that, that they will be granted the necessary powers to ensure that none of the relevant information is destroyed. That is essential.
Edward Argar
As we have set out in previous debates on this matter, there are already provisions—around legal proceedings, for example—for the retention and preservation of information. However, we have already debated the powers, or otherwise, of the IPA as a data controller and I have set out, on behalf of the Government, our position on that matter. I appreciate that the Opposition Front Benchers take a different perspective, which of course they are entitled to do, but I believe that we have expounded on that already in the debates on this part of the Bill. With that, I commend the clause to the Committee.
Amendment agreed to.
Amendments made: 36, in clause 30, page 23, line 2, leave out ‘disclosure or’
See the explanatory statement to Amendment 35.
Amendment 37, in clause 30, page 23, line 3, leave out ‘a disclosure or processing’ and insert ‘it’”—(Edward Argar.)
See the explanatory statement to Amendment 35.
Question proposed, That the clause, as amended, stand part of the Bill.
Edward Argar
In order to amplify the voices of victims and to signpost them to the right support service, advocates must have the ability to share information with public authorities and victims. Clause 30 creates an information-sharing gateway that gives an advocate the ability to share information. The clause permits them to share information with other advocates, the victims themselves, the Secretary of State, the IPA secretariat and other public authorities.
I want to make it absolutely clear that an advocate will not share personal data received in the exercise of their functions without the consent of the victim. I know that people will be wary about that issue, and I want to make our position crystal clear. Nothing in the clause permits the IPA to contravene existing data protection legislation.
I believe that the clause will allow the IPA to more effectively assist victims to solve problems in real time. The IPA may communicate with public authorities on behalf of victims, and the clause will allow them to share data, where appropriate, and do so effectively. The clause also helps to ensure that victims can access the information to which they are entitled from any investigation, inquest or inquiry.
Finally, the clause allows the Secretary of State to share information, where appropriate, with an advocate. It is envisioned that that will be information shared with the secretariat provided by the Ministry of Justice. With that, I commend the clause to the Committee.
Anna McMorrin
I have already made my points about this issue. I wish to ensure that the IPA is granted the authority to receive all the information they need. I hope the Minister will continue to work with us to get that right.
Question put and agreed to.
Clause 30, as amended, accordingly ordered to stand part of the Bill.
Clause 31
Guidance for independent public advocates
Question proposed, That the clause stand part of the Bill.
Edward Argar
Clause 31 gives the Secretary of State the power to produce guidance to which an advocate must have regard when exercising their functions. The Secretary of State cannot, however, direct that guidance at any specific advocate or major incident. That is an important safeguard to ensure that, once appointed, the IPA is operationally independent and that the Secretary of State cannot use guidance to limit the role of a particular advocate or in a particular incident. Instead, guidance will help ensure consistency of support across different incidents.
The clause also gives the Secretary of State the power to withdraw or revise the guidance from time to time. That will allow the guidance to be kept up to date, to evolve and to reflect lessons identified and learned from major incidents. We cannot predict what major incidents we may face in the future, nor in what form they might come. Any guidance issued needs to be able to be updated regularly to ensure that the IPA is flexible and can adapt.
Anna McMorrin
I thank the Minister for expanding on the guidance for an independent public advocate. My remaining concern with the clause is the potential for the Secretary of State to use the guidance to restrict the powers and remit of the IPA. Will the Minister assure me that that will not be the case?
Edward Argar
As I have set out, the clause is not designed in any way to restrict the powers of individual advocates, but to set guidance on the way a number of different advocates will conduct their roles in different circumstances to provide that consistency. Given that we are about to conclude part 2, I will take the opportunity to pay tribute to all those who have campaigned hard on these matters from both parties, but most importantly to those families of victims and the survivors of these horrific events.
I am pleased that we are making progress on this matter, and I will continue to work with the Opposition and particularly the right hon. Member for Garston and Halewood over the coming months to see whether we can close any gaps. We are all determined to do our best to get the issue right, so I put on the record my gratitude to all those people and my officials, who have been working on this for some time. It is not an easy area of law to work in, and it is also a traumatic area to work in given the circumstances, which they and others will have read about. I put on the record my gratitude to them, the right hon. Lady, the families, the survivors and all those who have campaigned.
Rob Butler (Aylesbury) (Con)
I echo the Minister’s comments, particularly those referring to his officials and the traumatic incidents that have been involved. As I stated when we were taking evidence, I was at the University of Sheffield at the time of the Hillsborough disaster. A friend of mine died in that disaster, and another was seriously injured. I have chosen today on repeated occasions not to intervene, but I thank the Minister, the right hon. Member for Garston and Halewood and the shadow Front Benchers for their tone and co-operation, which will be a comfort to anybody who has been involved in any way.
Edward Argar
I am grateful to my hon. Friend. Given his personal experience and connection, this will not have been easy for him, and I am grateful for not only his words, but his service on the Committee.
Question put and agreed to.
Clause 31 accordingly ordered to stand part of the Bill.
Clause 32
Public protection decisions: life prisoners
Ellie Reeves (Lewisham West and Penge) (Lab)
I beg to move amendment 96, in clause 32, page 24, line 25, at end insert—
“(fa) the nature and seriousness of any conduct by the prisoner which—
(i) is alleged,
(ii) is as yet unproven,
(iii) has not resulted in a conviction,
which may have implications for the risk posed by the prisoner.”
Ellie Reeves
This victims Bill is long-awaited. Although it is good to finally be on my feet, I should say that part 3 is a distraction to debating the real and serious issue of victims. Many of us share the view that it should never have made its way into the Bill.
Amendment 96 seeks to broaden the list of things that the Parole Board must take into account when making a release decision. I want to set the context by saying a few words about the new release test. No one wants to see dangerous criminals released from prison, and the release of John Worboys, Colin Pitchfork and Tracey Connelly rightly led to public outrage. Setting the test out in legislation and introducing a new threshold may help to give greater transparency and consistency. However, it is not clear whether it will make a difference to how the Parole Board already operates. In evidence to this Committee, the Parole Board chief executive stated that it currently assesses risk
“as to whether the prisoner’s continued detention remains necessary for the protection of the public. That means that public protection is always paramount in our decision making.”
He went on to say that
“what is on the face of the Bill, in reality, gives effect to what the Parole Board already says in its guidance that we should take into account. We think that the legislation should make no significant changes to our practice.”—[Official Report, Victims and Prisoners Public Bill Committee, 20 June 2023; c. 51, Q100.]
My concern is that setting out in legislation the list of factors that the Parole Board has to take into account could lead to the process becoming a tick-box exercise. Clauses 32 and 33 set out matters—such as the nature and seriousness of the offence and the risk of the prisoner failing to comply with their licence conditions on release or committing further offences—that the Parole Board rightly takes into account when making a public protection decision. Although the list is non-exhaustive, there is a risk that factors that are not on the list but that may be important in a particular case do not get the consideration that they deserve. That could lead to poorer decision making, leaving the public less safe, and that leads me to my amendment.
I am deeply concerned that the draft list of criteria does not include alleged but unproven offences. Let us take Worboys, for example. His release on parole in 2018 rightly caused outrage. He was originally charged with attacking 14 women and faced 23 charges, including rape, sexual assault and administering a substance with intent. He was convicted of 19 offences in 2009. In December 2019, he was handed two additional life sentences for attacks on four more women, as it was revealed that he had confessed to targeting 90 victims. The failings of the police in this case are widely acknowledged, but on his release in 2018, the dossier from the Ministry of Justice did not emphasise the other allegations against him. Therefore the panel did not consider the alleged offences that he had not been charged with but, on the balance of probabilities, he had committed. In 2019, the Parole Board guidance was changed so that alleged but unproven allegations could be taken into account.
Litigation on this point followed, in the case of Pearce. Mr Pearce was sentenced after three offences of sexual assault. After serving his minimum sentence, the Parole Board refused to direct his release and instead directed his transfer to open conditions. In accordance with the new guidance on allegations, the board, when assessing his risk, took into account multiple unproven allegations about other alleged sexual assaults carried out by Mr Pearce against women and girls. Although the Court of Appeal found that the decision in respect of Mr Pearce was lawful, it held that parts of the board’s guidance were unlawful, as in its view only proven allegations could fairly be taken into account in the risk assessment.
The Parole Board appealed to the Supreme Court, which concluded in April this year that the Parole Board’s guidance on the unproven allegations against a prisoner is lawful. Therefore, alleged but unproven offences may be taken into account in release decisions where the Parole Board decides that they are relevant to the question of a prisoner’s risk to the public.
Although that is a step forward for victims and public safety, the Government’s failure to include alleged but unproven allegations on the statutory list is a huge step backwards. That was the key lesson from the Worboys case, so the omission is startling. It risks not only diluting the list’s importance, but the exclusion by panels of such allegations from their decision making. If that happens, decision making will be of a worse quality, and that will put the public at greater risk. That is why these amendments are so important, and I urge the Government to support them.
Edward Argar
I welcome the hon. Member for Lewisham West and Penge not only to her seat but to her feet, to take on part 3 of the Bill. In answer to her opening comments, the reason that part 3 is included is that when we talk to victims, there are two key points at which they raise concerns and anxieties. The first is the initial stage, from the arrest to the charge, the court process and—hopefully—the conviction and sentencing of the perpetrator. The second, which has been raised with me, the Lord Chancellor and others, is when a perpetrator is coming up for release or parole. That is the thread that links part 1 and part 3 of the Bill.
I am grateful to the hon. Lady for her amendment, which would explicitly add unproven allegations to the list of matters that the Parole Board must take into account when deciding whether it is safe for a prisoner to be released. I appreciate the point that she made about specific cases; I am a Leicestershire MP, and the impact and trauma of Colin Pitchfork’s deeds are still very much there among communities, not just in the immediate area where it took place but across my constituency, because people remember them with horror. In this context, “unproven allegations” refers to allegations that the prisoner has committed offences in addition to those of which they were convicted. Those could be, for example, complaints recorded by the police or misconduct in prison.
I agree with the hon. Lady that unproven allegations are an important factor in risk assessment. I reassure her that they are already given the consideration they require by parole panels and that the Parole Board has specific guidance for its members on the matter. Members of the Committee may be aware that the Supreme Court recently handed down its judgment in the case of Pearce, to which the hon. Lady referred. The case considered the board’s guidance on unproven allegations, and the Court held that the Parole Board can have regard, where appropriate, to any unproven allegations regarding a prisoner and is free to give them due consideration as part of that release decision even where that material has not been established as a fact. The Parole Board has since updated its guidance in the light of the judgment and continues to consider unproven allegations in its decisions.
Given the potential importance of unproven allegations, we considered adding them to the list of mandatory criteria. However, this is a technical area of law and we fear that the amendment would potentially go further than the Pearce judgment, which would risk including baseless allegations that lack credibility and going beyond the parameters set by the Supreme Court judgment. In our view, the position agreed by the Supreme Court is clear and has been carefully considered. We are content that the developed jurisprudence gives sufficient clarity for the board to fairly consider allegations of this kind as it makes decisions.
Clauses 32 and 33 both contain a list of factors that the Parole Board must take into account when making a public protection decision about a prisoner. The list is explicitly not exhaustive. The list includes the conduct of the prisoner while serving their sentence as well as the risk that the prisoner would commit a further offence if no longer confined. In our view, unproven allegations already fall within the scope of these mandatory considerations. Members of the Parole Board are experts in the field and will consider all relevant and available information in line with the guidance regardless. On the basis that unproven allegations already fall within the wording and scope of both these mandatory considerations, that unproven allegations are therefore already an important part of the decision-making process, and that clear guidelines have been handed down by the Supreme Court, we consider the amendment unnecessary.
Ellie Reeves
I thank the Minister for those comments. I note his point about the drafting of the amendment perhaps going further than the judgment in Pearce. Given the importance of getting this right, might we look at a way that alleged but unproven allegations could be incorporated into the list between now and Report?
Edward Argar
In the nicest way, I would not wish to leave the hon. Lady out of the multiple conversations that I am likely to have over the summer with her right hon. and hon. Friends about different aspects of the Bill. I hope that it has come across in Committee that I am always happy to work constructively with the Opposition on this. We may not always reach the same conclusion or end up in the same place, but I am always happy to have those conversations with the hon. Lady.
Ellie Reeves
I am grateful for those assurances about working together on this. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 33 stand part.
That the schedule be the schedule to the Bill.
Edward Argar
Clause 32 will amend chapter II of part II of the Crime (Sentences) Act 1997, which relates to the release of prisoners serving life sentences. Clause 33 will amend chapter 6 of the Criminal Justice Act 2003, which relates to the release of prisoners serving determinate sentences. When a life sentence prisoner reaches the end of their minimum term or tariff—that is, the minimum period set by the independent courts that an offender must spend in custody—they will be referred to the Parole Board. The Parole Board will apply the release test set out in legislation: whether it is
“no longer necessary for the protection of the public that the prisoner should be confined”.
The board’s sole consideration in that decision is public protection.
Jess Phillips
In the accounting of whether there is a risk, is there anything that would ensure that, for example, evidence is taken by the Parole Board from the family courts? There is a problem in that the family courts do not speak to the criminal courts—it happens all the time. A finding that somebody had committed rape could be found in the family court but not in the criminal court. I worry; for example, with children’s services—if there were children involved, would that be taken into account by the Parole Board? I do not think it is in any way a fair to say that an assessment of the risks posed—of any minimal threat to anyone, when we are considering domestic and sexual violence—could only come from the police, because so few women come forward.
Edward Argar
I am grateful to the hon. Lady for the point she makes, and I understand that she is getting at how widely one draws out what is relevant and useful information pertinent to decision making. I appreciate the point she makes about some factors not currently being explicitly taken into consideration under the provision. On that specific point of law, I hope she will allow me either to write to her or revert to her before the Committee concludes.
With subsection (5)(c), the requirement is then to consider the prisoner’s behaviour, even in prison or on licence, while serving the sentence. The decision maker must review the available evidence—for example, from probation officers—as to whether the prisoner has complied with all the demands made of them. There is a link to subsection (5)(f), which considers the impact of any rehabilitative interventions, such as therapeutic treatment or engagement in education, and their effectiveness in reducing the prisoner’s risk to the public.
I have already mentioned subsection (5)(d). Subsection (5)(e) covers the assessment the decision maker must make in respect of what licence conditions might be imposed if the prisoner is suitable for release, and what the likelihood of the prisoner complying with them is. Subsection (5)(g) requires the decision maker to take account of any submission made on behalf of the prisoner as to their suitability for release. An account must also be taken of any submission from the Secretary of State, which may include their view on the risks posed by the prisoner.
As we have discussed at length, it is vital that we put victims at the heart of the criminal justice system. For that crucial reason, subsection (6) says that when assessing the level of risk that the prisoner may pose to the public in general
“the decision-maker must in particular have regard to the protection of any victim of the prisoner.”
In that context, my interpretation of the requirement on the board to take all relevant evidence into account—as I said, I will write to the hon. Member for Birmingham, Yardley if I have misinterpreted this—is that if relevant material is held by another authority, it can still be obtained on behalf of the Secretary of State and considered. I hope that she will allow me to confirm that to her in writing.
The criteria set out in subsections (5) and (6) are comprehensive and undoubtedly assist the decision maker in assessing risk; however, it is not an exhaustive list of criteria. That is confirmed by subsection (9), which clarifies that the decision maker is not limited in the matters to be taken into account when assessing a prisoner’s risk. The Government consider it necessary to be transparent and clear when it comes to making very important public protection decisions that have significant consequences for the public, victims and prisoners. The high threshold for release and the criteria by which risk is assessed must therefore be there for everyone to see and understand. We are satisfied that the clause codifies the release test used by the Parole Board, and the board advises that it could be a welcome clarification for it of the factors that its members already take into consideration.
Ellie Reeves
I thank the Minister for setting out the clauses comprehensively. They are broadly welcome, in that they introduce a new public threshold in legislation. Although putting the release test in legislation and introducing the new threshold may help to give greater transparency and consistency, there remains a question mark about whether it is necessary. The Chair of the Justice Committee observed on Second Reading that
“there is an element in this part of the Bill of trying to solve a problem that does not exist and therefore a risk of over-engineering the system, which we might not need…There is nothing wrong with changing it, and perhaps nothing wrong with expanding it, but are we sure that we are getting this right?”—[Official Report, 15 May 2023; Vol. 732, c. 602-603.]
Although it was helpful to hear from the Minister today some of the thinking behind the clauses, I notes that the Justice Committee wrote to the Lord Chancellor stating that the changes could have a positive effect on consistency and transparency of Parole Board decision making, but also outlined that the changes are not strictly necessary. Again, there is a question mark about whether parliamentary time could be better spent focusing on victims rather than some of these changes.
Let me return to the concerns I raised previously about the non-exhaustive list of factors for the Parole Board to take into account. There is a risk that the Parole Board may end up giving more weight to those things that are on the list rather than to other factors that may be relevant. I have already spoken about alleged but unproven allegations. My hon. Friend the Member for Birmingham, Yardley gave the example of findings that might be made in the family court, particularly in relation to rape and domestic abuse. My worry is that an unintended consequence of specifying a list of things that have to be taken into account might be a failure to take into account issues that are also extremely relevant to risk. Although we broadly we support the clauses, we think those points need a little further reflection.
Edward Argar
I am always conscious that the hon. Lady is an extremely able lawyer, so I listen carefully to everything she says and will reflect carefully on her points. I am also conscious that both Lewisham East and Lewisham West are represented on this Committee; Lewisham is well represented. With that, I commend the clauses to the Committee.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
Clause 33 ordered to stand part of the Bill.
Schedule agreed to.
Clause 34
Amendment of power to change test for release on licence of certain prisoners
Question proposed, That the clause stand part of the Bill.
Edward Argar
The clause is an amendment to an existing power in section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The power allows the Secretary of State to be responsive to the risk posed by certain cohorts of offenders by allowing changes to the release test applied by the Parole Board by secondary legislation. For example, if the release test was found to no longer be suitable for assessing the risk posed by a particular cohort, the power would allow the Secretary of State to swiftly rectify that by amending the release test to safeguard protection.
The clause simply amends the pre-existing power to ensure it remains operable with the introduction of the Bill. First, it brings the new release test in clauses 32 and 33, which we have just discussed, into this power, so that the Secretary of State can amend it if necessary. Secondly, it ensures that the power also works with the new ministerial second check introduced in the Bill, which we will debate in due course. In the event that the Secretary of State decides to call in a case to remake a decision, he or she will apply the same release test as the Parole Board. Likewise, if a prisoner decides to appeal a decision made by the Secretary of State to the upper tribunal, they will also apply the same release test.
The power is used to change the release test applied by the Parole Board. The release tests applied subsequently by the Secretary of State and the upper tribunal must also be changed, which this clause facilitates. The clause is not new policy, but simply ensures that the pre-existing legislation continues to operate consistently and effectively. I commend it to the Committee.
Ellie Reeves
We welcome clause 34, which will allow future changes in the release test to be made by affirmative statutory instrument. The Worboys case demonstrated inadequacies with Parole Board processes, and changes were needed that until then had not been anticipated. It strikes me that in future we may find that changes are needed in ways that we cannot foresee today, but there must be scrutiny of any changes, so I am pleased that the Government have recognised this is a matter for which an affirmative as opposed to a negative statutory instrument is required. We welcome this measured approach.
Edward Argar
I am grateful to the shadow Minister for her support and for her words. I hope clause 34 can stand part of the Bill.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Fay Jones.)