Victims and Prisoners Bill
Tuesday 13th February 2024
(10 months, 1 week ago)
Lords ChamberVictims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 31-V Fifth marshalled list for Committee - (9 Feb 2024)
Baroness Thornton
“Code for victims of major incidents(1) The Secretary of State must issue a code of practice as to the services to be provided to victims of major incidents by persons having functions relating to—(a) victims of major incidents, or(b) official inquiries and investigations following a major incident.(2) In this Part, the “code for victims of major incidents” means the code of practice issued under this section.(3) The code for victims of major incidents must make provision for services which reflect the principles that victims should—(a) be provided with information to help them understand the investigatory process following the major incident of which they are a victim;(b) be able to access services which support them (including, where appropriate, specialist services);(c) have the opportunity to make their views heard in the investigatory process following the major incident of which they are a victim;(d) be able to challenge decisions which have a direct impact on them.(7) The code for victims of major incidents may make different provision for different purposes, including different provision for—(a) victims of different descriptions;(b) persons who have different functions of a kind mentioned in subsection (1).”
Baroness Thornton (Lab)
My Lords, in moving Amendment 122, I shall also speak to Amendment 123. I thank Justice and Inquest for the briefings they have given us about this issue. I hope the noble and learned Lord the Minister will be back with us at some point as the Bill proceeds, although the duo who have taken his place are doing a great job.
These amendments follow on from our debate at the end of the proceedings last week about victims of major incidents and how they should be treated. The amendments are about the fact that bereaved people and survivors in inquests and inquiries will have suffered serious harm but do not receive the same recognition from the Government as victims of crime, so are not entitled to the minimum level of support and services. Instead they are often expected to navigate complex legal processes, with little recognition of the harm they have suffered or the trauma they have faced.
Under Clause 2, the victims’ code in the criminal justice context would reflect the principles that victims
“(a) should be provided with information … (b) should be able to access services which support them … (c) should have the opportunity to make their views heard … (d) should be able to challenge decisions which have a direct impact on them”.
Applying these principles to the victims of major incidents and interested persons at inquests would have a significant, practical and symbolic benefit, consistent with the Government’s pledge to place victims at the heart of their response to public tragedies.
Extending the provisions of the victims’ code could be achieved by introducing a requirement in the Bill for the Secretary of State to issue a separate victims’ code relating specifically to victims in the context of inquests and inquiries. Such a code could be guided by the same principles and have the same weight and legal status as its criminal justice counterpart. Before drafting the code, the Secretary of State should be required to consult the survivors of major incidents and the bereaved. Further consultations should be required before any changes were made to the victims’ code or its provisions relating to victims in the inquests and inquiries context.
The Government could be invited to suggest their own way of achieving the proper support for victims of major incidents. These are probing amendments about the best way forward, and this may not be it. Inquest contends that
“affording victims of major incidents and Interested Persons entitlements under the Victims Code would represent a recognition of their status as victims of significant, and often wrongful, harm who should be treated in a manner that is dignified and promotes participation”.
I beg to move.
Baroness Brinton (LD)
My Lords, I thank the noble Baroness, Lady Thornton, for tabling these important amendments creating a code for victims of major incidents and the processes by which it should be laid before Parliament. At Second Reading, a number of noble Lords raised the problem in the Bill that faces victims who are not victims of a type of crime listed in Schedule 1 and relating only to the first part of the Bill. It is self-evident that the victims of major incidents are not all covered by crime, or sometimes criminality may not be evident for a long period after the incident. However, the consequences of these incidents are often life-changing and require the same sort of support that victims of serious crimes do.
It would be iniquitous if the victims of aircraft accidents, flooding disasters, stadium collapses and many others were not able to access the support of the relevant services via an advocate and agencies that they need. That is why amendments debated last week, as well as those today, make strong arguments for provision. The advocates also need to know what rights these victims have in major non-criminal incidents and which services to refer them to.
Baroness Hamwee (LD)
My Lords, there is obvious scope for confusion on the part of—I try not to use the word “victim”, because I do not want to cause confusion—people who are caught up in incidents which may or may not be criminal. We could be in danger of causing resentment among people who are caught up in non-criminal incidents because what is available to them is insufficient. That is thrown into clarity when looked at against the victims’ code. The legislation needs something like the amendment and clarity on the part of everyone who is operating as to what applies. Points were made throughout many of the previous debate about the need for signposting, and I see that very much in the context which the noble Baronesses have referred to.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support both amendments. I shall refer to a different group; the noble Baroness, Lady Brinton, mentioned several incidents that would cause the amendments to kick in. However, there is another category, and that is victims of state wrongdoing. For example, the “spy cops” scandal shows what goes wrong when a police unit goes rogue and the state compounds the abuse of power by doing all it can to minimise and cover up. Those cover-ups leave victims powerless and alone and are the reason we need this victims’ code to apply to them as well.
There are famous cases such as Hillsborough and the killing of Jean Charles de Menezes. There is also a long history of Met police officers—those of us who were on the London Assembly or the London police authorities saw this many times—being accused of crimes and allowed quietly to retire early.
There is the emerging scandal of sexual and domestic abuse being systematically ignored within the police service when the accusations are directed at police officers by women who are their partners or even fellow officers. We heard this week of examples in Devon, with officers accused but still promoted to units specialising in domestic violence. These are not one-offs or rotten apples; this is a systemic failure to protect women and ensure that they get justice. The victims’ code would help to redress that.
Many such victims have to crowdfund if they are to have any hope of engaging with the legal process to find justice. I have worked with many victims seeking justice through inquests and public inquiries, and it is a very disorienting process for them. I very much hope that these two amendments will encompass that group: those who are victims of state wrongdoing.
Lord Marks of Henley-on-Thames (LD)
My Lords, these are probing amendments, as the noble Baroness, Lady Thornton, explained, and they would substantially increase the range of the Bill in relation to major incidents. That is all to the good. Part 1 of the Bill, as we know, is concerned with victims of criminal conduct and, because of the provisions concerning the new code, is relatively comprehensive. However, Part 2, in connection with victims of major incidents, is not.
Part 2 as presently drafted is concerned entirely with advocates for victims of major incidents. The introduction of the scheme for the appointment of standing advocates and other advocates is a welcome reform, but there are many other areas where victims of major incidents need more support than they currently receive. My noble friend Lady Brinton gave a number of examples. We heard of a further example last Wednesday: the argument about permitting victims’ relatives to register the death of those victims. That is an important issue—one which has received far too little attention before—but is only one of a very large number of issues facing victims of incidents that the Bill simply does not cover.
There are issues concerning the operation and impact of the coronial system more generally, for example, or the availability, establishment, conduct and reporting of public inquiries, as well as representation at those inquiries. There is also the implementation of recommendations of inquiries and investigations, and the monitoring of that implementation; the provision of information to victims and their families; the provision of practical and financial support to victims after major incidents; comprehensive signposting, as mentioned by my noble friend Lady Hamwee; and ensuring that at times of disaster there is a dedicated support system available to victims and their families.
Much of this has been called for by Victim Support and others over some years. The Government’s response has been helpful in providing for local resilience forums. These work well in some areas, but the evidence we have seen shows that they work far less well in others. Victim Support and other charities of course do a great deal to co-ordinate and supply support services, but they are charities and limited by funding restraints in what they can do.
Victim Support recommended in 2020 that local resilience forums should be under a duty to produce civil contingency plans to a minimum standard. I suggest that a new, separate code for victims of major incidents would be a sensible and practical way to achieve a number of worthwhile ends. Primarily, it would set out the services and responses that victims of major incidents would be entitled to expect from public authorities and others. Secondly, it would give victims comprehensive information on how to access the services they need. Thirdly, it would enable local resilience forums to understand what services they needed to provide and so ensure more comparability across the piece. Fourthly, it would establish a standard of good practice, to enable local resilience forums and all responders to know what is needed and expected. A feature of the code I would applaud is that it could be regularly updated to reflect best practice to ensure that unnecessary shortcomings in some areas could be addressed.
These are, as we have said, probing amendments and it is not for now to attempt to draft what should go into such a code. What is needed is a commitment to devote resources to drafting such a code, thinking carefully about it and to consulting on what is needed, with a view to such a code being ultimately incorporated in statute in the same way as we seek to incorporate the victims’ code in this Bill.
Lord Roborough (Con)
My Lords, I thank the noble Baroness, Lady Thornton, for Amendment 122. This amendment would require the Secretary of State to prepare and issue a new code of practice for victims of major incidents. I will focus my response on the content of Amendment 122, as Amendment 123 is consequential on the former. While I understand the intentions of the amendments, I do not believe they are necessary, because existing codes and related commitments are already in place to achieve their aims.
First, the purpose of establishing an independent public advocate is exactly as the noble Baroness has outlined. It is to ensure that victims understand the processes and actions of public authorities and how their views may be taken into account; to provide information concerning other sources of support and advice; and to communicate with public authorities on behalf of victims in relation to the incident, especially in situations where the victims have raised concerns. Through the advocate’s ability to act as a conduit between victims and the Government, victims will have the opportunity to make their views known and have their voices heard to effect change in real time.
Secondly, it is likely that in most circumstances in which a major incident is declared and an advocate is appointed the victims will have been a victim of a crime. In such instances, they are already covered under the victims’ code, which sets out the services and support that victims of crime can expect to receive from criminal justice agencies. An additional code for victims of a major incident may therefore be duplicative, and as such may be counterproductive.
The noble Baronesses, Lady Thornton, Lady Brinton, Lady Hamwee and Lady Jones of Moulsecoomb, as well as the noble Lord, Lord Marks, have argued powerfully that non-criminal major incidents may need to be addressed. Victims of non-criminal major incidents will have an advocate appointed to help them access support services, navigate the processes—
Baroness Thornton (Lab)
I wonder whether the code would cover the Hillsborough situation. It seems that the definition the noble Lord has just given would not cover that situation—one in which people may think that a crime was committed but nobody has ever been charged with a crime, and there were definitely a very large number of victims.
Baroness Brinton (LD)
I am grateful to the noble Lord for allowing me to intervene. The other point he has raised about the type of—if I can call it this— “victimhood” completely ignores the experience of the victim, the journey they have to make, and the services, which are so vital to the victims’ code. How can he explain that victims of major incidents that are not deemed to be a crime at the time would be able access those services in the same way? They are no less victims.
Lord Roborough (Con)
I understand the points made by both noble Baronesses. I have had extensive dialogue with the department on this point today and I will try to give the best answers I can. We can follow up further beyond that.
As cases of non-criminal major incidents do not go through the criminal justice system, the measures in the Bill and code are not appropriate for this cohort. If a major incident subsequently becomes criminal, victims will be entitled to services under the code. The majority of measures under the code help those going through the criminal justice system, so would not be appropriate for those who are not.
In relation to support services under the code and broadening access, expanding these to those incidents where no crime has been committed could impact access to support services designed for victims of crime, but that does not prevent separate provision designed to meet the needs of those who have experienced a major incident.
Baroness Brinton (LD)
I am really sorry to intervene again and am very grateful to the noble Lord. The amendment does not say that it is the same victims’ code as under Part 1 of the Bill; this is a different victims’ code. Can he explain to your Lordships’ Committee why a separate code, often with references to different services and agencies, would impact on the other one?
Lord Roborough (Con)
As I have already said, I believe that most victims will be victims of crime; most major incidents will involve criminal behaviour of some description, or a criminal investigation. We believe it is a subset, but nevertheless a very important subset, of victims who need to have their needs addressed. We completely agree with that.
Lord Marks of Henley-on-Thames (LD)
The Minister has accepted that there is a subset and, as the noble Baroness, Lady Brinton, has demonstrated, it is a very important subset of victims who are not victims of crime but of tragic accidents or incidents. I am not sure that his answers so far and his speech so far have taken in the real difference, which is that victims of crime are involved in process that leads to—and is at least partially resolved by—a criminal trial, where there is to be such a trial, or a criminal investigation where it does not lead to a trial.
The Minister has accepted that the existing victims’ code is directed to that set of circumstances. Victims of a tragedy that is a major incident which does not involve crime—or, as the noble Baroness, Lady Thornton, pointed out, may or may not involve crime but does not lead to a criminal process—have a whole different set of needs that arise from tragedy rather than crime. I cannot understand from the Minister’s answers why a separate victims’ code is inappropriate in those circumstances. There may, of course, be areas of overlap but why is there no separate code to deal with this very real issue?
The additional point is that I would suggest—and the Minister has not suggested otherwise—that all of this cannot be addressed simply by the provision of an independent public advocate, however worthy that is, and it is.
Baroness Jones of Moulsecoomb (GP)
While the Minister is still sitting down, I agree with everything that has just been said but also the victims I was talking about—the victims of state wrongdoing—have not been treated as victims of crime so they would come under the original code, except they have not had access to all the information, and so on. It is worth understanding that the current code is not enough. Plus, I am “Jones of Moulsecoomb”, not “Jones of Whitchurch”—no offence.
Lord Roborough (Con)
I apologise to the noble Baroness, Lady Jones of Moulsecoomb. I am grateful to the noble Lord, Lord Marks, for a much more eloquent summing up of what I was trying to say than I was capable of doing.
The Government acknowledge that there is a subset of victims of major incidents where a crime does not occur who are not being addressed because the victims’ code addresses principally the victims of major incidents where crime does occur. The Government believe that the independent public advocate will be a significant step forward in helping all victims of major incidents to have their needs met during this very difficult time.
The Government’s view is that the charter and the proposed code for victims of major incidents bear many similarities and it may be duplicative to implement both. The Government are also not convinced at this time of the necessity of placing these codes and charters which aim to change culture on a statutory footing, but we are happy to consult all Ministers, given the strength of feeling about how best to address the needs of victims of major incidents where crime is not involved. As I say, we have had dialogue today on exactly this matter and I am conscious that I am not giving noble Lords a very good answer but I think it is best if we agree to consult on that, if that is acceptable.
In answer to the points made by the noble Baroness, Lady Jones of Moulsecoomb, about cases where the victims’ code is not followed and where, potentially, victims are victims of state actions or some other incident, the victims can direct complaints to the organisation itself. It will have internal complaints-handling processes in place; I accept that in this particular instance that may not be much use. But if they feel that their complaint has not been resolved, they can escalate it to the Parliamentary and Health Service Ombudsman, who will investigate further.
Through the Bill, we are making it easier for complaints to go to the Parliamentary and Health Service Ombudsman where the complaint relates to the complainant’s experience as a victim of crime. It may also be open to victims to challenge a failure to deliver the entitlement set out in the code by way of judicial review. This will depend on the circumstances and standard public law principles will apply. As the most senior governance—
Baroness Brinton (LD)
I apologise for intervening again, but this is Committee and I am trying to understand. I am grateful to the Minister for outlining possible alternative routes, but he is suggesting two, three or four possible routes that a victim of a major incident, who may never have had any encounter with any of the services and agencies, has to know and understand. It is very complex. Is the Minister happy to meet between Committee and Report to discuss this? I do not want to detain the Committee with a couple of possible examples, but, thinking about other major incidents, I already have examples I would like to put to the Minister and his officials to try to understand how the system he is proposing would work. At the moment, it seems more of a muddle than the current system.
Lord Roborough (Con)
I am of course happy to commit to meeting to discuss this matter, but we are not leaving the victims defenceless in this situation: they will have an independent public advocate, who will help to guide them through all these processes. But I completely agree that we should meet and consult further on this matter.
Baroness Hamwee (LD)
My Lords, during the debate on the victims’ code, we discussed the problem that victims are often advised not to undergo any counselling or therapy because that might damage how their evidence is characterised by the defendant’s counsel. I have no idea whether this issue has arisen in connection with major, possibly non-criminal incidents, but I can see that this could become something that makes its way into people’s thinking: “Don’t go for therapy because you might have to give evidence to a public inquiry, and how would that be perceived?” I just throw that in as another consideration. There may be similar points, not about what victims should do but about things they should not.
Baroness Thornton (Lab)
I thank the noble Baroness, Lady Hamwee, for throwing that in. The Minister will know that this is a discursive process and this is a probing amendment. Although we will press him on all the different things, I am grateful for the commitment to talk and to continue the dialogue about how we deal with this particular group in the code. On that basis, I beg leave to withdraw my amendment.
Lord Wills
Lord Wills (Lab)
My Lords, this group of amendments addresses the appointments, functions and processes for the independent public advocate in different ways. They are all designed to secure the greater independence and effectiveness of the advocate.
Given that it has been almost seven years since the creation of an independent public advocate featured in the 2017 Queen’s Speech, Amendment 123A simply removes any further possibility for the Government to unnecessarily delay the implementation of this post. Amendment 123B ensures that Parliament fulfils its function of scrutiny in respect of the appointment of the independent public advocate. Sadly, as many of your Lordships will be well aware, Ministers cannot always be relied upon to act benignly when scrutiny of their Government’s actions is involved. It is therefore crucial that they be held to account by Parliament in these matters and that Parliament retains a role in the appointment of the independent public advocate.
As the Minister will be aware, the Treasury Select Committee, the Public Accounts Select Committee and the Culture, Media and Sport Select Committee already fulfil this function of approval for some key public appointments, and for good reason. That good reason must surely apply in the case of the independent public advocate. It must be essential that the public and those who need the services of the independent public advocate can have complete faith in the integrity and independence of the advocate, and a parliamentary confirmatory hearing will help to secure that.
Amendment 123C provides an alternative route for the appointment of the independent public advocate and a trigger mechanism for the retrospective appointment of the advocate. Clearly, this would become applicable only in the event that the Secretary of State decided not to appoint an independent public advocate. I am aware of the Government’s concerns about fettering the freedom of the Secretary of State’s action over the appointment of an advocate and the scope of their powers. In that context, I stress that this amendment creates no statutory fetter on the Secretary of State’s freedom of action. However, it does entrench a parliamentary role for the operation of this position and provides an additional safeguard for the interests of victims.
I spoke on the previous day in Committee about the need for retrospection. As I said then, it seems perverse to exclude from the support of the advocate those to whom the original damage was caused before the passage of the Bill but who have still to secure justice for it and who still suffer the consequence of it, such as those postmasters whose lives were wrecked by the Horizon scandal, and those whose lives were devastated by the transfusion of contaminated blood in the 1970s and 1980s or by nuclear tests in the 1950s and 1960s. This amendment provides a trigger mechanism for such an appointment of the independent public advocate, as it were in retrospection. I envisage that it might come into effect, for example, when the relevant Select Committee had investigated a particular “major incident”, in the language of the Bill, and concluded that victims still suffering the consequences would benefit from the assistance of the independent public advocate. Again, I stress that this would not impose a statutory fetter on the Secretary of State, but it might spur them on to action if they had not already taken it. However, the amendment would require the Secretary of State to justify their decision to Parliament and render them subject to scrutiny of their decision to reject such a recommendation. I hope that the Government might recognise that it is in the interests of victims that any decisions by the Secretary of State in this area should be subject to parliamentary scrutiny. After all, we remain a parliamentary democracy—despite some recent attempts to subvert it.
Amendment 124A is perhaps the most important of this group of amendments that I have tabled, because it entrenches the timely achievement of transparency as a key task of the independent public advocate. The amendment avoids being overly prescriptive about what powers the independent public advocate might require to establish an effective fact-finding inquiry to secure timely transparency for the victims, the bereaved and the wider public, because obviously the circumstances of every major incident will be different. However, this might well include placing the advocate in the position of data controllers, so they would be enabled to see all the relevant documentation and report on it without necessarily being able, under data protection regulations, to publish all the data.
In his letter to Peers, the Minister—the noble and learned Lord, Lord Bellamy—set out the reasons for the Government resisting such powers, and they are worth quoting, because to me they exemplify many of the problems with the Government’s approach. He said that
“a new and competing investigative body would be disruptive, duplicative and risk undermining or prejudicing other investigations which are seeking to establish the truth or assign liability”.
I am afraid these assertions are not borne out by evidence. The role need not compete with other investigations under the terms of this amendment. If the Secretary of State believes that such power would not be in the public interest, nothing in this amendment would force them to grant it. It remains at the Secretary of State’s discretion. However, this amendment forces the Secretary of State to justify such a decision, in respect of the fact that they made it with regard to timeliness, cost, transparency, and the emotional and financial interests of the victims.
Baroness Sanderson of Welton (Con)
My Lords, I will speak to Amendments 124A and first to 133ZA, which recommends the review that the noble Lord, Lord Wills, just talked about—a review of the way in which the IPA is working once the office is up and running. I am not always a fan of reviews in legislation, but in this instance it does seem to make sense, given that this is such a ground-breaking role.
As the noble Lord, Lord Wills, has already made clear, it is a position that has taken a long time to get off the ground. It is fair to say that officials have grappled with the role and what it will look like in practice. Having originally proposed a panel that would be activated in the event of a disaster, the Government have now agreed on a single standing advocate. This is welcome news. As my noble friend the Minister knows, I think the IPA may need the power to compel evidence, so I firmly agree with Amendment 124A, which would allow the Secretary of State to grant the IPA the ability to establish a fact-finding inquiry, with the right to see all relevant documentation.
The noble Lord, Lord Wills, has done this brilliantly, so I will just quickly add that this is central to the role of the IPA given the dissembling that lies at the heart of pretty much every disaster, as institutions still seek to protect themselves over and above those who have been wronged. I completely agree with the noble Lord’s point that such a power would not put the IPA in competition with others but would be a cost-effective triage. He makes an interesting point about the difference and the fact that perhaps we have not had a repeat of the Hillsborough Independent Panel inquiry. One reason for that comes from victims themselves, which we saw with Lucy Letby: we must have a statutory public inquiry, because that is the only way we can compel witnesses and evidence. As the noble Lord, Lord Wills, has said, we go down the road of these very expensive public inquiries when perhaps, with the powers that he suggests only being switched on by the Secretary of State in the right instance, we could avoid some of that.
To mention them again, although the sub-postmasters are not a group of people I have worked with personally, I watched the programme along with everybody else. I cannot help thinking about that moment when they all said, “Oh, I thought I was the only one. I wrote and they all said that I was the only one”. At that point, there were 200 or 300 of them. If the IPA had existed, could they have gone to the IPA and said, “We’ve formed this group of 300 of us and this has happened to us”? If the IPA had the power to write to the Post Office and say, “Can you please tell me how many complaints you have had about the Horizon system?”, could so much pain and damage have been stopped? The IPA would have had the power to get that answer in a way that they did not because, as usual, the dissembling meant that they could not get to the information.
Along with the noble Lord, Lord Wills, I realise that the Government think otherwise about the power to compel evidence, despite the views of victims, survivors and families—who are all in favour of such a power. For now, I accept that we shall have to agree to disagree, but I will come back to Amendment 133ZA. I hope we might agree that what we have just been talking about all shows just how complex this new role is. It will take some time to work out exactly how the IPA can do its work. Therefore, in this instance a review is a very good idea because we should not underestimate what an important role this is. If you had relatives at Hillsborough, lived in Grenfell Tower, were infected with HIV or hepatitis, or were a sub-postmaster, and had the IPA existed at that point, the IPA was your one chance, the only person in the system entirely there for you.
Baroness Hamwee (LD)
My Lords, I support the amendments that call for proper support for this new role. It should not need to be spelled out that the IPA will need a budget. I happen to think that he or she should have a budget and discretion as to how best to spend it. I am a little alarmed by Clause 31, which provides that the Secretary of State “may pay” reasonable costs and, quite separately, “may make provision” for secretarial or other support. Should the latter be distinguished from reasonable costs incurred in connection with the exercise of their functions? I think not.
I am particularly prompted to mention this because I learned the other day that the newly appointed—after a period of 22 months—independent anti-slavery commissioner is having her budget reduced on a yearly basis throughout the term of her appointment, by 5% a year over the three years. I know that the two jobs are different positions, but that indicates strongly—and it is very much accepted by people in the sector, including the new commissioner—that the Government are downgrading that role. Do the Government agree on the importance of creating champions, if I may call them that, just to give them a collective noun? They have to make the job possible.
Lord Marks of Henley-on-Thames (LD)
My Lords, as the noble Lord, Lord Wills, has explained, of the amendments in this group, Amendments 123A to 123D, 124B, 126A and 126B would perform a number of functions. They would inject urgency into the appointment of the standing advocate; they would give a Select Committee of the House of Commons a prominent role in the selection and appointment of the standing advocate; they would clarify the standing advocate’s role if other advocates were appointed as well; and they would provide that the appointment of additional advocates was to cover for unavailability or to provide additional assistance to the standing advocate. All those amendments would strengthen the statutory requirements and give the standing advocate role more significance and the standing advocate more personal responsibility for the performance of that role.
On Amendment 124A, I fully agree with the noble Lord, Lord Wills, on the need for urgency in establishing inquiries, and agree with all the observations he—and, indeed, the noble Baroness, Lady Sanderson—made about the delays inherent in the present system. The difficulty I see with the amendment as drafted—I would appreciate some clarity on this from the Minister—is the following:
“The standing advocate may request from the Secretary of State all the relevant powers to establish a fact-finding inquiry, including those to see and report on all relevant documentation.”
That would give the standing advocate the power to establish a fact-finding inquiry. My concern is that I am not convinced that establishing a fact-finding inquiry is the role of the standing advocate as envisaged by the Bill. I invite the Minister to explain how he sees the role of the advocate in inquiries and to consider, certainly between now and Report, how the role of arbiter or inquiry establisher is compatible with the role of representing and supporting victims. Is there another route—the noble Lord, Lord Wills, might also be keen to be involved in this discussion—to establishing an independent, quicker, more effective way of producing inquiries that does not involve the standing advocate, but that also does not involve the length and delay of a full-blown public inquiry in every case?
I also invite clarity from the Minister on how he sees the standing advocate’s role of providing support at inquiries. That is plainly envisaged by Clause 33, but Clause 33(5) permits advocates to support victims’ representatives; it does not deal with acting as victims’ representatives. Clause 33(7) would prevent a person representing victims if the person concerned was under 18—that is perhaps uncontroversial—or if, in so doing, they would be carrying out a legal activity. A legal activity is as defined in Section 12(3) of the Legal Services Act 2007.
It is unclear that representing a victim at an inquiry is a legal activity. Paraphrasing, or at least truncating, the meaning of Section 12(3) of the Legal Services Act 2007, a legal activity is exercising the right of audience, which is not a phrase normally used in representation at an inquiry; the conduct of litigation, which plainly an inquiry is not; offering advice, assistance or representation in connection with the application of the law; or legal dispute resolution. I do not regard any of those activities as equivalent to representing a victim or more than one victim at a public inquiry. I would be interested to know, therefore, how the Government see that role.
I turn now to the point made by the noble Baroness, Lady Sanderson, about the right to see all relevant documents. It seems to me that, whatever the role of the standing advocate, the right to see all relevant documents is central, as is the right to insist on calling for particular witnesses to be cross-examined.
It follows that, with the amendments as phrased, there is a right to make a request to the Secretary of State and the right to a reasoned and timely response to that request, when it concerns seeing documents and calling witnesses. This is a modest, probably overmodest, approach. It seems to me that the standing advocate ought to have an absolutely clear right to call witnesses or to have them called by the inquiry if it is independent, as I suggest it probably should be, so that they can be cross-examined by or on behalf of all parties.
Amendment 133ZA would require a review of the operation of the standing advocate scheme and the appointment of additional advocates six months after passing the Act. I quite agree with the noble Baroness, Lady Sanderson, that such a review is important because this is a complex and new mechanism. I suggest that six months after passing the Act may be too soon, because it is unclear how many major incidents would be declared in the first six months, and it is certainly unclear how long it would take to see how the system was working in practice. I think we would be looking at a period of at least two years or thereabouts before we have an effective review. However, I agree that a review of what is, in essence, a new system should be incorporated into the statutory scheme.
Finally, Amendment 128A, to which I have added my name, is the amendment on which my noble friend Lady Hamwee spoke. It seeks proper secretarial support and other resourcing for the standing advocate. The first point is that appropriate support is essential to enable the advocate’s role to be performed effectively. An advocate without a proper budget quite simply cannot do the job, but there is a further, very important point about independence. It is crucial that this advocate scheme acts independently. Without statutorily guaranteed resourcing, an appointed advocate would be dependent on the Secretary of State for the resources needed to carry out the job which they are charged to perform. That is entirely unsuitable.
There are amendments about the termination of advocates’ appointments, and the spirit of independence being threatened by the present drafting of the Bill, which we will come to in a later group, whereby the Secretary of State can remove an advocate for reasons that seem appropriate to him or her. We are all for the independence of advocates, but their role needs clarification and a review would be helpful.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I congratulate my noble friend on pursuing this matter over many years. I know that the noble Baroness, Lady Sanderson, has been at his side for most, if not all, of those years. My noble friend introduced this group comprehensively, so I will not go through the amendments in detail.
In essence, the first part of this group of amendments injects a greater urgency into the whole process, specifies roles and contexts of roles, and strengthens and increases the significance of those roles. As was self-evident, my noble friend is frustrated by the failure to actually implement this new role.
My noble friend went on to speak at some length about Amendment 124A, which would give the standing advocate powers to establish a fact-finding hearing. In talking about the necessity of that, he said that this was one of the most important amendments in the group. The figures he gave for the costs and delays in the various inquiries that we have had over the last couple of decades were very stark. I was not aware of the contrast between the way that the Hillsborough inquiry was conducted and the others that he mentioned.
Earl Howe (Con)
My Lords, as the noble Lord, Lord Wills, so ably explained, this group of amendments covers a number of issues: the appointment of the standing advocate, the function of the standing advocate, the appointment of additional advocates, and a review of the scheme’s effectiveness.
I will deal first with the noble Lord’s Amendment 123A, which would set a duty on the Secretary of State to appoint a standing advocate within one month of Royal Assent. The Government entirely share the noble Lord’s desire for the standing advocate to be in place as soon as possible once the Bill becomes law. However, we have a few concerns about the proposed amendment.
First, Part 2 of the Bill will be commenced by regulations made by the Secretary of State. That is the appropriate commencement mechanism for this type of provision. Secondly, it has always been our intention to run a fair and open competition for the office. Obviously, there is due process involved in that, which necessarily occupies a certain amount of time. Thirdly, as I hope the noble Lord will appreciate, the Government will want to carry out all relevant due diligence prior to making the appointment, and this process will also take a little time.
If the Government were to proceed as the noble Lord suggested, it would necessitate a direct appointment by Ministers. Of course, that is theoretically possible, but such appointments are normally used to address a short-term need and are typically for posts that last 12 to 18 months or something of that sort. This point also relates to the noble Lord’s other amendments on the appointment process, which would require the Secretary of State to obtain the approval of a relevant Select Committee and to hold a Motion for resolution before making the appointment, or to give an Oral Statement if it is refused.
It may help if I outline the Government’s current intentions for the recruitment process. Given the nature of the role and the tireless efforts and campaigning of so many people—not least the noble Lord, but also other parliamentarians, Bishop James Jones and, in particular, the Hillsborough victims and their families—for the establishment of the IPA, it is of the utmost importance that we get this right. On that basis, the Government intend to recruit the standing advocate through the public appointments process.
To remind noble Lords, theprocess is operated under the Governance Code on Public Appointments and is regulated by the Commissioner for Public Appointments. The scheme will ensure that the competition for the role is fair, open and transparent. It will provide the opportunity for anyone with the appropriate skills and experience to apply and help to ensure that we will have as a diverse a range of candidates as possible to choose from.
I would also like to reassure the noble Lord, Lord Wills, that the public appointments process already provides the opportunity for the appropriate Select Committee to interview a proposed candidate. If it would be helpful, I am open to discussing this point further with the noble Lord. Indeed, it is within the discretion of Select Committees to encourage potential candidates to apply. They can also hold a statutory officeholder to account once in post, as the noble Lord well knows. Additionally, we have also taken the step of ensuring, within this legislation, that the IPA will be subject to the scrutiny of the Parliamentary and Health Service Ombudsman, which adds a further layer of accountability. Taken together with the pre-appointment scrutiny that the public appointments process already affords Select Committees, it is the Government’s belief that no changes to the process are required at this time.
I now turn to Amendments 123D and 124B. These add a specific mention so that the clauses apply only when additional advocates are appointed. I do not think these amendments are necessary; the legislation as drafted already covers the point the noble Lord is trying to make. Ultimately, the clauses in question are intended to allow the standing advocate to provide a leadership function to any additional advocates appointed alongside them. Where no additional advocates are appointed, the leadership function would not be needed or executed. These amendments are therefore not necessary.
Amendment 124A in the name of the noble Lord, Lord Wills, seeks to grant the standing advocate the right to request all the relevant powers to establish an inquiry; to impose a duty on the Secretary of State to answer any requests from the standing advocate within two weeks; to impose a duty on the Secretary of State to make an Oral Statement to the other place should they refuse any request; and to impose a duty on the Secretary of State to demonstrate that they have had regard to various factors while considering the public interest. The noble Lord, Lord Marks, asked me to clarify the Government’s policy intention in this area. The Government have always been clear that the purpose of the IPA scheme is to support victims of major incidents, rather than undertaking their own independent investigations. Our position remains unchanged. This amendment would run counter to the policy intention.
The noble Lord, Lord Wills, quoted the words of my noble and learned friend Lord Bellamy in explaining the rationale for the Government’s approach. Briefly, the Government are of this view because they believe that giving the IPA investigatory powers could conflict with the work of other investigative authorities and risks duplicating or undermining them. I acknowledge all that the noble Lord said about the intended effect of his amendment. I am sure that he will know that, in recognition of the desire here and in the other place to see the IPA having a greater role in reviews, the Government announced additional functions for the standing advocate. The standing advocate’s functions, as set out in Clause 29, give it the ability to advise the Government on the most appropriate form of review mechanism in relation to a major incident and what the scope of that review should be. It will also have a vital role in relaying the views of victims in relation to this decision. The Government believe that this is the most appropriate form of involvement for an advocate to add value, without duplicating or undermining other processes.
While I obviously regret that the noble Lord and the Government are not at one on this issue, I hope he will welcome the shift that the Government have made. I did not close my ears to what he said; I also listened carefully to my noble friend Lady Sanderson. I would of course be happy to discuss this further with him and my noble friend in the coming weeks, as I know would my noble and learned friend Lord Bellamy. For now, I hope that the noble Lord will not feel the need to move the amendment.
My noble friend Lady Sanderson asked me what engagement has taken place with victims in shaping the role of the advocate. I can tell her that, since March, we have written to victims and given them an inbox, and we are happy to keep those conversations going while operationalisation continues. We have also met the representatives of the Grenfell and Hillsborough families. Further to that, we wrote to the victims of Hillsborough, Grenfell and Manchester at each stage of the Bill where amendments were being made, and very much welcomed their engagement.
On the question of whether, if Horizon occurred today, the victims could write to the IPA and ask it to look into the matter, the advocate would be able to ask questions of public authorities, such as the Post Office, and could advise the Government if it became aware of a developing situation. However, it could not currently represent Horizon victims, because this would be retrospective. If an IPA had been in place at the time that that scandal emerged, then they could have spoken to it.
On the question of whether the advocate could support victims at inquiries, at statutory inquiries the chair is able to make provision for legal representation for core participants. The advocate would not represent victims in a legal capacity at either inquests or inquiries.
The noble Baroness, Lady Hamwee, asked about—
Lord Marks of Henley-on-Thames (LD)
I am sorry to intervene on the noble Earl. I may be an amendment or two later than the point in the speech which I address, but is he sure that Horizon would count as a major incident, bearing in mind the definition of major incident in Clause 28(2), where a major incident
“means an incident that … occurs in England or Wales after this section comes into force, … causes the death of, or serious harm to, a significant number of individuals, and … is declared … by the Secretary of State to be a major incident for the purposes of this Part”?
I can see that Horizon caused serious financial harm, but is that the harm envisaged? I am not sure that it is. Would the Secretary of State be entitled to declare a major incident in the Horizon circumstances?
Earl Howe (Con)
I think we have already debated the latitude that the Secretary of State enjoys in interpreting the word “significant” when we debated the previous group of amendments. The noble Lord has asked a very fair question; I perhaps should not have rushed into an answer to the question I was given on Horizon in particular. It might be wise if, rather than go further at the Dispatch Box, I wrote to the noble Lord about the Horizon case specifically.
The noble Baroness, Lady Hamwee, asked about the IPA’s secretarial and admin support; that was also touched on by the noble Lord, Lord Marks. We will be coming to that in the fourth group of amendments, so if they will allow, we can defer the point to that debate, which my noble friend Lord Roborough will be responding to.
Lord Wills (Lab)
My Lords, I am grateful to everyone who has spoken to this group of amendments. I think everyone, with the exception of the Minister, has spoken broadly in support of them. As always, I am particularly grateful to the Minister for his extremely courteous and open response to quite a weighty volume of amendments which covered quite a lot of ground.
On the basic question of further engagement with Ministers and officials, I would be delighted. I am extremely grateful for the offer, and I hope we can arrange something in the very near future, in good time before Report, to deal with some of these questions. Quite a lot of them are details of drafting, and I may well have misunderstood the intent of the drafting. It may be that some further clarification is needed. These are details in the drafting of the amendments, and I am very grateful to move forward on them. The review question, dealt with in Amendment 133ZA, is similarly complex, and I am glad that, when we spoke a few days ago, the Minister and the noble and learned Lord, Lord Bellamy, seemed to welcome the principle. It would be good if we could clarify that and bolt it down to something practical that will work.
Amendment 124A is on the crucial question of fact-finding and transparency. I think the noble Lord, Lord Marks, referred to it as a modest amendment. If I had any hope of the Government accepting something more radical, I would have been far less modest, but I do not, I am afraid. The Minister’s response confirmed my worries about this. He repeated what has always been the Government’s position: that the role of the advocate is essentially a pastoral one—that advising the Secretary of State, as the Minister just described, is really only a baby step away from what is essentially a pastoral role. That really is not sufficient. Merely reiterating the Government’s purpose does not justify the purpose; it only shows that, for some reason I really do not understand—I really do not understand it, because I can see no practical benefit of it at all, to anybody—the Government are resistant to giving the public advocate further powers.
It is not a question of defensiveness over a particular issue. As the Minister said, the Bill is not retrospective at the moment, although I welcome his indication that he may be able to introduce that element of retrospection. I am frankly baffled. Timeliness is so important for victims who are suffering unimaginable trauma and grief, and all of whom, in their different ways, are seeking closure, because they fail to understand what has happened to their loved ones, out of a clear blue sky, and are given no explanation for why what happened has happened. As the magisterial report on Hillsborough by Bishop James, the former Bishop of Liverpool, shows, these delays allow those in power to construct false narratives about what happened. We saw that graphically at Hillsborough, when the Sun newspaper and the former Prime Minister told lies about football fans who lost their lives because of the negligence of the police.
Earl Howe (Con)
I meant to respond to the very pertinent points the noble Lord made on the cost and duration of public inquiries. He is, of course, quite right. This is a matter of concern. It is not for a trivial reason that your Lordships’ House is looking at this very issue in one of its special committees at the moment. However, one of the advantages, as we see it, of the IPA will be that he will be able to recommend to the Secretary of State a non-statutory route to inquiring or looking into incidents. I am sure that his or her voice in making such a recommendation will, for entirely the reasons that the noble Lord cites, be a very powerful lever in the process.
Lord Wills (Lab)
I am grateful to the Minister; he pre-empted me, as he could see where I was going to go next with this. He is quite right that the Inquiries Act 2005 is increasingly widely recognised as clunky and in need of revision, but that is not for now. That is inevitably going to be a lengthy process, and certainly for another Parliament, but we have this Bill in front of us.
Giving the public advocate power to advise the Secretary of State has no teeth at all. We know how Ministers take advice: sometimes they do and sometimes they do not. In the meantime, the victims, for whom this Bill is intended, go on suffering. While the Secretary of State decides and deliberates and moves on, is sacked, reshuffled and all the rest of it, the victims go on suffering the agony of not knowing what has happened to their loved ones, while over and again those in power use taxpayers’ money to construct false narratives. There is no end in sight to that in this Bill.
We have the opportunity to give real power to the independent public advocate, speaking on behalf of victims who have been left abandoned, over and again, for years and decades. The person who is meant to represent them “may” be given the power to advise the Secretary of State, who can then do what he or she likes, with no accountability—nothing. I urge the Government to look again at this.
Notwithstanding the obvious problems with public inquiries, here is a chance to do something. We have the model. The Hillsborough Independent Panel, which was set up by a Labour Government and championed by a Conservative Home Secretary and Prime Minister in the right honourable Theresa May MP, with cross-party support, is universally accepted as a model of how these things can operate. Yet the Government persist in rejecting the possibility for the independent public advocate to set up something like that in future.
Why? We know that it can save money. We know that it can produce a timely explanation of what happened, which is of incalculable benefit to victims. Yet the Government go on resisting it. Timeliness, cost benefits and transparency; what is not to love about those virtues? Yet the Government resist it. As I say, I am baffled. We will return to these issues on Report. I am grateful to everyone, and particularly to the Minister, for his approach to all this. I beg leave to withdraw the amendment.
Baroness Thornton
“(2A) When carrying out its functions under subsection (2)(a) in relation to a specific major incident, the standing advocate must seek, and relay to the Secretary of State, the views of victims of that incident concerning—(a) the type of review or inquiry held into the incident, and(b) their treatment by public authorities in response to the major incident.”Member's explanatory statement
This amendment would require the standing advocate to communicate the views of the victims of a major incident to the Secretary of State.
Baroness Thornton (Lab)
My Lords, in moving Amendment 124 I will speak to Amendments 125 and 128 in the name of my noble friend Lord Ponsonby. We are now, of course, continuing our discussion about major incidents and the role of the advocate.
The reason for Amendment 124 is that the press release introducing the standing advocate position states that the role will
“give victims a voice when decisions are made about the type of review or inquiry to be held into a disaster”.
However, there is no requirement in the Bill for the standing advocate to directly consider the views of victims of a major incident when advising the Secretary of State. The Bill provides for an individual other than the standing advocate to be appointed as the advocate in respect of a major incident. In these circumstances in particular, it is not clear from the Bill how and whether the views of victims will be communicated to either the standing advocate or the Secretary of State. That is the situation that Amendment 124 seeks to rectify. It would require the standing advocate to communicate directly to the Secretary of State the views of victims in relation to the type of review or inquiry to be held into the incident and their treatment by public authorities.
I turn now to Amendment 125. The Government have said that the appointment of advocates for individual major incidents will allow for expert insight from, for instance, community leaders who hold the confidence of victims. There is no requirement to consider the views of the community affected by the incident when deciding whether and who to appoint as a specialist advocate in relation to a specific incident. We appreciate that the need for rapid deployment of an advocate following a major incident—which noble Lords have been talking about already—may make it difficult to seek the views of victims before appointing an advocate in respect of that incident. However, once an advocate has been appointed, the Secretary of State should seek the views of victims as to whether to appoint an additional specialist advocate and who to appoint. This is what Amendment 125 in the name of my noble friend seeks to do.
Amendment 128 would require the Secretary of State to consider the views of the victims of an incident before making a decision to terminate the appointment of an advocate appointed in respect of that incident.
This suite of amendments strengthens the role of victims, which is what we are seeking to do in this Bill. I beg to move.
Baroness Brinton (LD)
My Lords, I thank the noble Lord, Lord Ponsonby, for laying these amendments and the noble Baroness, Lady Thornton, for introducing them. After the last group, we continue to delve into the role of standing advocates. Once again, the lack of a victims’ code for those major incidents not deemed to be criminal, or not obviously criminal, means that the voice of the victim may not be heard.
One would hope that any standing advocate would seek and relay to the Secretary of State the views of the victims, but it is not evident from the Bill as published exactly how that would happen. These amendments create the golden thread that ensures that a standing advocate must do that, and that the Secretary of State, before they terminate the appointment of an advocate, must consider the views of the victims of a major incident. For example, there might be a conflict of interest with a future Government who are unhappy about the direction in which a standing advocate is going. The standing advocate might think that what the victims are saying goes beyond what the Government had hoped, and there might be a push to remove the standing advocate. Under this amendment, the standing advocate would be able to produce the evidence brought to him or her from the victims to say why the matter should be taken seriously. At the moment, there is no such structure to do that.
Baroness Newlove (Con)
My Lords, I have been happy to sit and listen as we went through the rest of the Bill, but I totally support these amendments. To not have to listen to the victim’s voice beggars belief. The whole point of having an advocate for a major incident is so that the views can be heard. I agree that, by not asking the victim’s point of view, this feels very much like lip service and an insult to the victims who are going through a horrific trauma. Are we not going to learn anything from Hillsborough, Grenfell and the Manchester Arena? This will even add fuel to the fire. I totally agree with everything that has been said. It is very important that the voices of victims are heard, right through this, when reporting to the Secretary of State.
Lord Wills (Lab)
My Lords, I rise briefly—the Minister will be relieved to hear—to support these amendments. What is important about them is that they would put on a statutory basis that the views of the victims will be communicated to the Secretary of State. As I have already said at some length, we need to do more and give more teeth to the powers of the independent public advocate, but this is a good step forward. I hope that the Government can accept these amendments, which really are not contentious.
Lord Marks of Henley-on-Thames (LD)
My Lords, this group concerns the obtaining of the views of victims by the standing advocate and their being taken into account, or relayed to the Secretary of State so that they can be taken into account. The central point was that made by the noble Baroness, Lady Newlove. If victims of major incidents are to be given a voice and that voice is to be heard, they need, under this scheme, the standing advocate to be that voice—a voice that co-ordinates and articulates the victims’ response. It will often be a joint or combined voice and the stronger for that.
Under Amendment 124, the type of review or inquiry held would be the subject of the views that must be obtained and relayed. It is a matter on which the views of victims are strongly held. They are often views that are in conflict with the views of the Government. That is a central point about independence.
The next point under this amendment is their views on
“their treatment by public authorities in response to the major incident”.
Again, this is an area of not invariable but regular conflict between victims and government. The questions that arise are, “Was enough done to avoid the incident?”, “Was what was done done in time?”, and “Were sufficient resources devoted to relief and recovery after the incident?”. All those are crucial issues on which the voice of victims needs to be independently heard and taken into account.
Amendment 125 concerns the appointment of additional advocates and says the Secretary of State must seek victims’ views on whether to appoint additional advocates and whom to appoint. Again, that is a requirement that is plainly right, because the identity of the advocate and the appointment of additional advocates matter to victims, who are extremely concerned to know that the investigation and any inquiries are going to be properly carried out.
Finally, the views of the victims to be taken into account include the views that they express before the termination of an appointment of an advocate. Again, that is self-evidently right. We have in a later group an amendment tabled by the noble and learned Lord, Lord Hope of Craighead, removing the right of the Secretary of State to remove the standing advocate on such grounds as he thinks appropriate. I put my name to that. That is an important amendment that we will address when it comes, but it goes hand in hand with this amendment because the purpose of both reflects the reality that inquiries into major incidents may cast light on failings of government or organs of government that may cause the Government embarrassment.
One of the chief virtues of the independent public advocate system proposed in this Bill is precisely its independence of government. It is therefore essential that an advocate appointed to represent victims’ interests should be clear and free to carry out those functions fearlessly. If that involves criticism of government or individual Ministers, those criticisms should be made and investigated. The views of victims on the termination of an advocate’s appointment will therefore be central to that process. They should be central to any consideration of the termination of an advocate’s employment. That should not be left to the Secretary of State without regard to the views of victims.
Earl Howe (Con)
My Lords, I express my thanks to the noble Baroness, Lady Thornton, and the noble Lord, Lord Ponsonby, for these amendments, which bring us to an important dimension of any major disaster or incident: the need to give families a voice in decisions about the support they receive. I have a great deal of sympathy with the aims of these amendments. I will take them in turn.
Amendment 124 would require the standing advocate to obtain the views of victims of major incidents regarding any review or inquiry held into the incident and their treatment by public authorities, and then communicate those views to the Secretary of State. Let me say immediately that there is no disagreement here between the noble Baroness and the Government as regards the desired outcome. We agree that an important function of the standing advocate will be to champion victims’ voices to the Government and facilitate better engagement between them and government in the aftermath of a major incident. We agree that part of this involves the standing advocate understanding the views of victims and relaying them to the Secretary of State.
It is the Government’s intention that through Clause 29(2)(a) the advocate will communicate the views of victims of a major incident to the Secretary of State. This could include their views regarding any government-initiated review or inquiry into the major incident and their treatment by public authorities. This will provide victims with agency in the process, which is vital. It is therefore a matter of the best way to deliver this policy. The Government’s position is that it is best achieved without the Bill being overly prescriptive, and with Clause 29(2)(a) providing the foundation. A particular advantage of this approach is that the standing advocate would be able to advise on the full range of review mechanisms, including non-statutory inquiries—as I said a while ago to the noble Lord, Lord Wills—which by their nature cannot be specified in legislation. These are valuable options and can be very successful. The Hillsborough Independent Panel has already been mentioned as a good example.
The noble Lord’s Amendment 125 would require the Secretary of State to consider the views of victims before making the appointment of additional advocates. The intention behind the appointment of additional advocates has always been to prevent a single advocate being overwhelmed, or to ensure where necessary the specialist knowledge needed to provide swift and tailored support to victims. One of the key functions of the standing advocate, as outlined in Clause 29, will be to advise the Secretary of State as to the interests of victims, and the Government would consider this to include advice on whether additional advocates are needed and who may be suitable to appoint. This advice could include the views of victims which they had gathered.
Furthermore, as the Secretary of State has already committed, we will publish a policy statement that will give additional detail about the factors the Secretary of State will consider when appointing additional advocates, including the needs of victims. We believe this to be a better and more flexible approach to ensure that additional advocates can be deployed swiftly when needed. I am concerned that if we were to proceed as the noble Lord suggests with this amendment, a consultation process with the victims would be required prior to any further advocates being appointed. A consultation has the potential to unduly delay the appointment of further advocates and reduce the agility of this scheme to react to the developing situation. Furthermore, the last thing that we would wish to impose on victims during their grief is an additional bureaucratic consultation process.
I come lastly to the noble Lord’s similar Amendment 128, which says that the Secretary of State must consider the views of victims before an advocate’s appointment is terminated. There are a few scenarios in which we imagine that the Secretary of State will use his or her discretion to determine the appointment of an advocate using this power. I will speak to this in more detail in response to the amendment from the noble and learned Lord, Lord Hope, in a later grouping. However, I believe it would be helpful to briefly summarise those scenarios.
First, should additional advocates be appointed, it is right that the Secretary of State has the ability to scale down the number of advocates should the need no longer exist when the peak of activity is over. Secondly, the Government have always been clear that we will prioritise rapid appointment of an advocate following a major incident to ensure that victims are supported from an early stage. However, it may be necessary, following a greater understanding of the developing needs of the victims, or conversely the capacity of an advocate, to substitute one advocate for another. Thirdly, this power may be used to replace an advocate who does not command the confidence of the victims. I hope that those explanations are helpful to reassure the noble Baroness as to the intent behind this provision.
Lastly, as with the noble Baroness’s Amendment 125, I am concerned that, should the Secretary of State be required to carry out a consultation process with the victims, that would severely cut across the ability of the scheme to be flexible and adapt quickly to changing demands.
I believe that victim agency—if I may use that word again—is important, and that has come through strongly during the passage of the Bill, not least in another place. While the amendments serve as a reminder of that principle, I do not believe they are necessary.
Baroness Thornton (Lab)
My Lords, I thank the Minister for that explanation. I thank the noble Baronesses, Lady Brinton and Lady Newlove, the noble Lord, Lord Marks, and my noble friend Lord Wills for their support for this small group of amendments. The Minister is right that we have no disagreement about the outcomes we wish to see at the end of this. Our concern is that giving a voice to victims in major incidents is so important that it needs to be explicitly mentioned in the Bill.
I accept that Clause 29(2)(a) does go some way, but it does not actually say that the job of the special advocate is that they have to talk to the victims. I listened to hear whether the Minister would say something about guidance or statutory instruments that might say that, because obviously that would help us with this issue. Certainly, a policy statement would be very welcome.
The question of the confidence that victims or the Secretary of State would or would not have in the special advocate is one of great sensitivity. It could be that the special advocate was giving the Government a very hard time and they may not be enjoying that, and we need to make sure that that person is protected by the statute under those circumstances. However, we have made some progress in opening up this discussion, which I know we are going to follow through in the next group of amendments. I beg leave to withdraw the amendment.
Lord Hope of Craighead
Lord Hope of Craighead (CB)
My Lords, a good deal has been said about this amendment already in one way or another before I have got to my feet to introduce it.
Perhas I might begin with a bit of a preamble. I think I can take it as common ground across the Committee that the advocate appointed in respect of major incidents must be independent—that is, independent of the Secretary of State. The phrase “independent public advocate” has been used several times today from the Benches opposite, and I think the Minister used the expression “IPA”. Although he did not actually express the word “independent” as such, IPA means “independent public advocate”, so I take that as an indication that “independent” is agreed as a proper and necessary qualification of the advocate that we are talking about.
I think I am right in saying that it is a curious feature that “independent” does not actually appear in any of the clauses in this part, but it does appear in the contents. When the list of contents comes to Clause 33, it refers to “an independent public advocate”, so there is some basis in the text of the Bill for using that expression. That is why I think I can take it as secure common ground for what I am about to say that independence is a necessary qualification for the advocate.
My amendment seeks to address the phrase
“on such grounds as the Secretary of State considers appropriate”
in Clause 31(2) referring to the termination of the appointment of the advocate. As I read the clause, it seems to open the ability of the Secretary of State to terminate the appointment very widely indeed. With my amendment I am seeking to limit the grounds, in the interests of clarity, to situations where the advocate is either unfit or unable to fulfil the functions of the advocate.
I cannot claim much originality for the amendment because it derives from a report on the Bill that was published on 18 January this year by the Constitution Committee, of which I was then a member. The committee suggested that the independence of the advocate might be better protected if the words in my amendment were to be substituted. The committee refers by way of an example to their use with regard to similar appointments, particularly the appointment of a Victims’ Commissioner, under the now repealed Section 48 of the Domestic Violence, Crimes and Victims Act 2004, where that phrase was used. That particular provision has been repealed. I am not quite sure where it is now, although I am sure it exists somewhere, but the fact it was there gives some precedent for the phraseology that I am putting forward in my amendment.
To come back to the principle itself, the principle that the advocate must be independent if he or she is to perform the functions set out in Clauses 33 and 35 lies at the heart of what my amendment is all about. It is also true of Amendment 129 in the name of the noble Lord, Lord Ponsonby of Shulbrede. I refer the Committee to the phrase that he includes in that amendment, which is
“must be independent with respect to its functioning and decision-making processes, and discharge of its statutory duties”.
Although I did not add my name to the noble Lord’s amendment, I offer it my full support because it strikes at the very point that I am seeking to make and it has the great merit of introducing the word “independent” into this part of the Bill for the first time, which takes the matter a significant step forward.
The point is that the role of the advocates that the Bill is referring to in Part 2 is to represent the interests of the people who need them, not those of the Secretary of State. Clause 33(3), for example, states that an advocate appointed in respect of a major incident may provide such support to victims of the incident in relation to an investigation by a public authority
“as the advocate considers appropriate”.
Clause 33(4) provides that such support may include
“helping victims understand the actions of public authorities … communicating with public authorities”
on their behalf, and
“assisting victims to access documents or other information in relation to an investigation, inquest or inquiry”.
The point was made earlier that, if the advocate is to engage in encouraging and assisting victims to access documents, independence is rather important to be able to carry out that function to its proper degree.
Then there is the reporting function in Clause 35. Reference is made here to the advocate’s opinions as to the treatment of victims in the course of an investigation, inquest or inquiry, and
“such matters as the advocate considers relevant”
to the major incident. I submit it is essential, if the advocate is to fulfil the functions set out in these clauses, that he or she should be free to exercise his or her own judgment without looking over his or her shoulder to see whether the Secretary of State likes or approves of what they are doing. There is a risk of a conflict of interest if the appointment is terminable on whatever grounds the Secretary of State considers appropriate.
I listened with some care to what the noble Earl said at the end of the last group for a hint as to what the objection to my amendment might be. He suggested that the Secretary of State may wish to limit the number of advocates or, for some other reason, move the appointments around, and so on. There is nothing sinister in this, it is simply a matter of proper organisation of the resources. I take that point, but it seems to me that the phrase in the clause is so wide that it opens the door to the accusation that it is actually at risk of undermining the independence of the advocate. It is an invitation, or it leaves it open to the Secretary of State, to terminate the appointment simply because the Secretary of State is dissatisfied or objects in some way to what the advocate is doing. That is the very last thing one would want if the advocate is to be truly independent.
Of course, I do not suggest that the formula I have put forward is the last word on this matter. It may be that the phraseology to which I draw attention could be limited in some way to remove the objection to which my amendment is primarily addressed. But I think I have said enough to enable the Minister to understand the point I am making. I hope he will give careful consideration to amending Clause 31(2), if not in the way I have suggested, at least in some other way to limit the breadth of the phraseology. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I shall speak first to the two amendments in my name. Amendment 29 states:
“During their appointment, an advocate may sit within the Ministry of Justice for administrative purposes, but must be independent with respect to its functioning and decision-making processes, and discharge of its statutory duties”.
The purpose of this probing amendment is to seek clarification of the function and operational independence of the advocate.
Amendment 132 would remove the power of the Secretary of State to issue guidance to advocates appointed in respect of major incidents and give this power instead to the standing advocate. It states:
“The standing advocate may issue guidance as to the matters to which other advocates appointed in respect of a major incident must have regard to in exercising their functions”.
The noble and learned Lord, Lord Hope, spoke to his Amendment 127. In a sense, there is an overlapping theme between this short group and the previous one and, indeed, other matters that have been discussed in Committee. That overall theme is bolstering the independence of the public advocate. I take the noble and learned Lord’s point regarding Amendment 129—I must admit I had not really appreciated it—that this is the first time “independent” appears in this part of the Bill. That is another example of bolstering the independence of the public advocate and the role itself.
In a previous group, the noble Lord, Lord Marks, spoke about putting the financial support for the IPA in the Bill. That too is a way of bolstering support, giving the advocate independence from the Secretary of State, so that the IPA is not constantly looking over his shoulder in terms of what the Secretary of State’s views might be. I too take the Minister’s point, made at the end of the previous group, that there may be practical reasons why the Secretary of State wants to move public advocates around. As the noble and learned Lord, Lord Hope, said, there is nothing sinister about that. Nevertheless, this suite of amendments is all about bolstering the independence of the IPA and trying to integrate the victims’ views into the process as far as is practicable. As was said when we debated the importance of review in the previous group, the way in which this new position is managed and the roles taken on may evolve over time.
I am hoping to hear from the Minister that the Government are sympathetic to the overall thrust of the amendments on independence of operation and making sure that victims’ views are represented at every opportunity as this role evolves.
Lord Thomas of Cwmgiedd (CB)
I support the amendment of the noble and learned Lord, Lord Hope. There can be no disputing that independence is key, and it would be very sensible if the Bill was slightly amended to refer to the independent standing advocate, or something of that kind. Independence not being in dispute, the issue is how to safeguard it. Normally, independence is achieved by three things: the first is a process of appointment, which we have already discussed; the second is the provision of resources—again, that has been raised but I am not sure whether it has been entirely dealt with; the third, and most critical, is removal. It seems to me that that is what this amendment is concerned with.
There are two ways of removing to ensure independence: one is to specify the grounds in the Bill, while the other is to derive an independent process. One or the other will work. There are all kinds of processes, such as an independent parliamentary process or an independent tribunal. But bearing in mind the uniqueness of this post, it may be best to look at specifying in the Bill the grounds for removal. That is a matter for discussion and debate.
I do not wish to add anything about Amendment 129, save to support it, but I would add one observation on Amendment 132. It is critical to show that everything is open, and that if the standing advocate is to issue guidance, such guidance is made public. We do not want, in this area, questions relating to what is going on without the victims having full confidence.
Lord Marks of Henley-on-Thames (LD)
My Lords, I shall be relatively brief on this short group of amendments. I stated my support for the amendment of the noble and learned Lord, Lord Hope, in advance, in principle, during debate on the third group. I apologise for mentioning his amendment before he had had an opportunity to speak to it. However, his reasoning was a development of the reasoning that I then expressed. I reiterate his point: for an independent advocate system to work, the advocate must be independent. I take the point of the noble and learned Lord, Lord Thomas of Cwmgiedd, that if “independent” has only appeared, or might only appear, by virtue of the amendment of the noble Lord, Lord Ponsonby, that is wrong. We have all called it independent because the independent public advocacy scheme is a term that has been frequently used. The word “independent” ought to appear in the Bill specifically, and the independent standing advocate could be called exactly that to make the point clear.
That means that such an advocate must be able to advance the victims’ interests without a concern that they are liable to be removed by the Secretary of State without very good reason. For such reasons
“as the Secretary of State considers appropriate”,
which is the wording used in the Bill, is just not good enough. Nothing less than the formulation of the noble and learned Lord, Lord Hope, of them being
“unfit or unable to fulfil their functions”
will do as a justification for removal.
I take the point made by the noble and learned Lord, Lord Thomas. This could also be achieved by a process for termination, not simply by the grounds for termination. Those are not necessarily alternatives; we could have both approaches. I suggest that the Government ought to consider whether the process should not be strengthened. To make the point I have made before, the Bill is shot through with the difficulty that the interests of the victims may conflict with the interests of the Secretary of State. That important conflict of interest can be resolved only by removing power from the Secretary of State.
I turn to Amendment 129 in the name of the noble Lord, Lord Ponsonby, which proposes that office facilities may be afforded by the Ministry of Justice, provided that they do not compromise the functional independence of the standing advocate. That is another point on independence. It is plainly administratively convenient and may be necessary that the Ministry of Justice provides the office facilities, but that does not mean that the bodies are not completely separate, and they must be.
Amendment 128A in the name of the noble Lord, Lord Wills, to which I have added my name, was moved into the second group, but Amendment 129 remained in this group although they are on similar subjects. The noble Earl, Lord Howe, said that the noble Lord, Lord Roborough, would answer on Amendment 128A. The point I made was that proper secretarial support and resources are crucial for the standing advocate if the system is to work. The noble and learned Lord, Lord Thomas, made the point about resourcing in general terms but made it very powerfully. Appropriate support is essential for the role to be properly done, as are statutory guarantees of adequate resourcing.
Amendment 132 in the name of the noble Lord, Lord Ponsonby, deals with guidance to other appointed advocates on what matters they should consider in relation to a major incident. It is not right that such guidance should come from the Secretary of State. The Secretary of State may have interests in diverting attention to some aspects of a major incident against the interests of considering others. Guidance should come from the standing advocate who has, as the noble Earl, Lord Howe, put it earlier, a leadership role. That is the proper source of such guidance and not the Secretary of State, who has a political interest that may be opposed to the interests of the victims. I suggest that the Bill’s formulation on this is simply quite wrong in principle.
Lord Roborough (Con)
My Lords, I thank the noble and learned Lord, Lord Hope of Craighead, for his amendment. This group of amendments concerns the independence of the advocate, and therefore I will discuss them together.
First, the amendment from the noble and learned Lord, Lord Hope of Craighead, seeks to limit the discretion of the Secretary of State as to the grounds on which an advocate’s appointment in respect of a major incident may be terminated. I believe it will be helpful if I explain the rationale behind the current provisions in the Bill. I hope that the noble and learned Lord will be reassured that this power will be used carefully.
There are a number of scenarios in which we envisage the Secretary of State exercising their discretion to terminate the appointment of an advocate. First, for the scheme to be as agile as possible, it is important that we can adapt the resource required to support victims. No major incident is the same, and the processes that follow can often take years to conclude. During this time, there will likely be peaks of activity when it may be prudent to increase the number of advocates actively supporting victims. Following these peaks, it is only right that the Secretary of State has the ability to scale back the scheme to be proportionate. This power enables the Secretary of State to do that effectively.
Secondly, we have always stressed the importance of being able to deploy an advocate as quickly as possible following a major incident. It may be appropriate, following a greater understanding of the developing needs of the victims, to substitute one advocate for another who may be better suited by virtue of their skills or expertise. The Government believe that having this flexibility is important. This amendment would diminish the Secretary of State’s ability to ensure that victims have the best possible representation.
Thirdly, as we have heard throughout the various debates on this part of the Bill, it has been highlighted that victims must have confidence in the advocates for them to be effective. The Government therefore anticipate another use for this power: to remove advocates who may not command the confidence of victims, as touched on by the noble Lord, Lord Marks, in the debate on the previous group, or stand down any advocates towards the end of official processes because victims no longer want or need support from the advocate.
To go a little further, the reasons why the Secretary of State may terminate an advocate’s appointment could also include a lack of capacity, misbehaviour or a failure to exercise their functions in accordance with their terms of appointment. These terms of appointment, including the potential grounds for termination, will be published. The views and needs of victims are incredibly important. A strong emphasis will be placed on the support needs of the victims, and decisions on the termination of an advocate will always be made with these in mind. Therefore, while I understand and recognise the intent of the noble and learned Lord’s amendment, the Government believe it is necessary for the Secretary of State to have a wider discretion in this area.
I completely agree with the noble and learned Lord, Lord Hope, that independence is critical. We believe that the Bill protects that. However, there was a constructive suggestion from the noble and learned Lord, Lord Thomas, that “independent” be added to the definition of the advocate in the Bill. I will take that away to the department.
The amendment from the noble Lord, Lord Wills, would impose a duty on the Secretary of State to provide the advocate with
“secretarial and all other support necessary for them to exercise their functions effectively”.
While he is not in his place, I would like to answer the noble Lord, Lord Marks, on this point. The advocates will be supported by a permanent secretariat, and the Ministry of Justice has already allocated funding for this. Clause 31 provides for an effective system of support for the independent public advocate by making provisions for a secretariat and remuneration. Work is already under way to provide the advocates with this secretariat and to ensure appropriate separation between them and the Ministry of Justice.
I will take the amendments from the noble Lord, Lord Ponsonby, in turn. The first seeks to make it clear in the Bill that advocates will sit within the Ministry of Justice for administrative purposes but be operationally independent. While I support the intention and spirit behind this amendment, the Government do not believe that this is necessary as this is already our intention for how this new statutory office will operate. Furthermore, the wording of this amendment may not best achieve its goal. It is generally not helpful to refer to government departments by name in legislation, due to any potential machinery of government changes.
The Government are committed to the operational independence of the standing advocate and any advocates appointed in respect of a major incident. The Government took steps to bolster the advocate’s independence earlier in this Bill’s passage by empowering them to report independently and at their own discretion. The legislation is also clear that the advocates will make decisions and utilise their experience to provide support to victims of a major incident in a manner they deem appropriate.
The other amendment from the noble Lord, Lord Ponsonby, seeks to transfer the power to issue guidance to advocates appointed in respect of a major incident from the Secretary of State to the standing advocate. I reiterate the Government’s commitment to the operational independence of the standing advocate and any advocates appointed in respect of a major incident. They will be empowered to take decisions and utilise their experience in a manner that the advocates deem appropriate. However, given the nature of major incidents and the unpredictability of the future, we believe that the Secretary of State’s ability to issue guidance is crucial to future-proof the scheme. The Government are mindful that guidance issued by the Secretary of State should not have any effect on the independence of advocates, which is why Clause 38 specifically prevents this guidance being directed at any specific advocate or incident.
Lord Hope of Craighead (CB)
My Lords, I am grateful to all noble Lords who have spoken in this short debate. I am particularly grateful to the Minister for stressing several times in his reply the Government’s commitment to the independence of the advocate; that is extremely important.
The problem is that that is not expressed clearly enough on the face of the Bill. It is curious, as I pointed out at the beginning, that it appears in the contents but not the text of any of the clauses. That is curious and suggests that something should be done in the wording to clarify the matter further to avoid the impression, which Clause 31(2)(a) gives, that the Secretary of State can dismiss the advocate for any reason.
It is possible to develop my amendment a little further—I am speaking off the cuff—to say that the Secretary of State may terminate the appointment for “administrative reasons” or “having regard to the views of victims” or “because the advocate is unfit”, and so on. The point is that one could spell out in this clause a little more clearly what ability the Secretary of State has to terminate the function without undermining the independence of the advocate.
To some extent, one is talking about the confidence the advocate has in exercising what could be quite demanding functions. In the interests of victims, they could be pressing the Secretary of State to do things that may be awkward, embarrassing, expensive, and so forth. It is very important to get this clarified in a way that achieves the commitment the Minister has very helpfully been stressing in his reply to me. I hope we can come back to this. If there is a possibility of discussing this with the Minister and the Bill team, I would very much welcome that. I hope we can pursue it further that way.
Lord Roborough (Con)
I reassure the noble and learned Lord that we would like to discuss this further.
Lord Hope of Craighead (CB)
I am most grateful to the Minister for that. For the time being, I will withdraw the amendment and we can progress the matter further in discussion.
Lord Ponsonby of Shulbrede
“(6) Where the advocate provides support to victims under the age of 18, the advocate must conduct or refer to a needs assessment of such persons to determine whether they have capacity to consent to provision of direct support from the advocate, or whether it would be more appropriate to provide indirect support via other persons assessed to represent their best interests.(6A) Before providing indirect support detailed in subsection (3), an advocate must —(a) ascertain the views of the victim under 18 on who is best placed to represent their interests, and(b) have regard to any views so ascertained.”Member’s explanatory statement
This amendment would ensure that a child’s capacity to make decisions for themselves is taken into account when determining whether the Independent Public Advocate engages directly with them or not. Where it is more appropriate to engage with a representative on a child’s behalf, a child’s views and preferences on who is best place must be taken into account.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I put my name to this amendment. It was tabled by the noble Lord, Lord Hampton, who is unable to be with us.
Amendment 130 seeks to ensure that a child’s capacity to make decisions for themselves is taken into account when determining whether or not the independent public advocate engages directly with them. Where it is more appropriate to engage with a representative on a child’s behalf, a child’s views and preferences on who is best placed for that should be taken into account.
The amendment follows the Children’s Commissioner’s advice for children’s eligibility for direct communication with their IPA, and from criminal justice agencies when making a victim information request. It should follow legal precedent, which means taking into account a child’s capacity and competence to take decisions. The commissioner suggests that the Bill should also establish processes for when it may not be appropriate for a parent to receive communication on behalf of their child.
Children must have agency when engaging with the criminal justice system, including around victim information requests and when engaging with the independent public advocate. This includes giving competent children the ability to indicate who they would like to receive communications from, including opting for direct communication, where this is judged to be safe and appropriate. This process should be consistently embedded as part of a thorough multiagency needs assessment of the child at the earliest opportunity.
I would like to add a different perspective to my amendment regarding my role as a family magistrate. We have, in recent years, moved further towards hearing directly from children when they are involved in particular family cases. We hear children’s views on which parent they should reside with, or whether they should be taken away from their parents. During my time in the family court system, which has been about 10 years, there has been greater trust in hearing directly from the children themselves. We should be very cautious about underestimating what they want to say to the court.
I have had direct and extremely moving experience of children wanting to have their say. They have had their say and they are absolutely clear that their views will be taken into account. However, their views will not necessarily be determinative; that is a decision for the court itself. I add that as an extra perspective on this amendment. The underlying purpose of the amendment is to make sure that the child victims’ views are properly taken into account. I beg to move.
Baroness Brinton (LD)
My Lords, I thank the noble Lord, Lord Ponsonby, for his introduction to this important amendment. I have to say that I was somewhat shocked when I first read the Bill. In Clause 33(6), it says:
“Where the advocate provides support to victims under the age of 18, the advocate may do so only by providing support to such persons as the advocate considers represent those victims”.
As a teacher, the noble Lord, Lord Hampton, who submitted this amendment, understands the vital issue of whether a child or young person—as a victim of a major incident—can have capacity to consent to the provision of direct support. To expect an advocate to make a decision, by passing it on to someone else to represent them, even if it is a parent—it may not always a parent, for reasons I will come to—without checking the child’s capacity or their interests and understanding is just plain wrong.
The example I want to highlight—I have chosen another non-criminal one, deliberately—is the aftermath of the Indian Ocean tsunami in 2004. Many children and young people were separated by the tsunami from their families, with no knowledge of who lived, died or who had been injured, and that included a number of British children. We know, from accounts at the time, that older siblings had to take on the care of and responsibility for the younger ones and for making contact and communicating with the British consul.
I cite this example because the issue of capacity and consent in those early days was vital, but in the longer term it would have been really helpful for those children and young people in their recovery to have been party to sensitive discussions about what had happened. There was mention in an earlier grouping about how one registers the death, and in this example there might have been important differential cultural practices in handling deaths and children might be the ones who can talk about what they want and what their family practice is without, for example, a British consul having to make that decision. I think one of the worst things an advocate or a Government could do would be just to impose someone to represent their interests without gaging their capacity first.
However, this does not just happen in criminal courts, and I am really grateful to the noble Lord, Lord Ponsonby, for citing the family court approach at the moment. We know that family courts often have to consider Gillick competency when hearing from children and young people about their own future. It is also commonplace in children’s social care and education and, above all, in health and about treatment. The CQC has a very helpful guide on the internet called Brief Guide: Capacity and Competence to Consent in Under 18s that sets out exactly what professionals need to consider. I am not suggesting that the CQC briefing or the rules that it uses should be adopted in whole, because issues about treatment are very different where somebody is acting as an advocate or having some parental responsibility. But large sectors of our public system—whether it is health, education or the courts—already use, and are trained to use, competency and consent. They understand when it needs to move to the area that the noble Lord, Lord Ponsonby, mentioned, where a voice is heard but a decision is not necessarily made on the child’s view. Clause 33(6) cuts that out completely, which seems to be totally extraordinary.
I look forward to hearing from the Minister on why it was there and whether there would be some possibility of negotiating something that reflects the actual practice in our courts and education and health systems for children at the moment.
Lord Roborough (Con)
My Lords, I thank the noble Lord, Lord Ponsonby, for introducing this amendment, which relates to an advocate’s support of the victims of major incidents who are under the age of 18. The noble Lord’s amendment would require the advocate to conduct, or refer to, a needs assessment of a victim under the age of 18, to establish whether they have the capacity to consent to receiving support directly from the advocate. Where it was deemed that a child did not have capacity, it would require the advocate to ascertain and have regard to the views of the child as to who best represents their interests before providing indirect support through a representative.
I understand and sympathise with the spirit of this amendment and emphasise that the Government recognise the inherent vulnerability of children in the aftermath of a major incident. Children should not have to bear the burden of navigating complex post-incident processes alone. In the aftermath of a major incident, victims and families will be dealing with grief and injuries and navigating post-disaster processes. This can be a difficult time, and we reasonably expect that child victims will have a parent or guardian who can facilitate their access to independent public advocate support and communicate their views on their behalf. If, in rare circumstances such as those cited by the noble Baroness, Lady Brinton, a parent or guardian is not suitable for this, the Bill gives the ability for an advocate to provide support to someone they consider represents the victims. The advocate will ensure that they listen attentively to the views of child victims through their representative and offer the support they need.
It is well established that child protection agencies within the local authorities have designated post-incident procedures and are well experienced in providing specialist and tailored support services for children. Therefore, it would be duplicative and inappropriate for the advocate to conduct needs assessments as they will not be specialised to carry out such functions, which could cause safeguarding concerns.
The noble Lord’s suggestion of a needs assessment is interesting and has merit in its attempts to give children greater agency. However, the Government do not believe that the advocate would be best placed to undertake this assessment. Furthermore, the Government do not believe that the answer to the issue at hand would be for the advocate directly to support children. The Bill sets out measures to allow children to be supported by a person that the advocate considers represents a child. In most circumstances, this will be a parent or guardian. However, we have not been prescriptive on who that person must be to allow additional flexibility. In rarer cases, it is already open to the advocate to better understand the needs of child victims in considering who represents them.
Baroness Brinton (LD)
I am very grateful to the noble Lord. He said two things that concern me. First, the amendment says:
“the advocate must conduct or refer to a needs assessment”,
which is what would happen through the CQC system I mentioned earlier, so it is not entirely dependent, as he implied in his response at the Dispatch Box, on the advocate themselves having to conduct that process and decision. The Minister may be coming on to this —in which case I apologise for raising it—but my main concern is Clause 33(6). I hope he is going to explain why it does not even talk about making decisions of capacity; it just says that the special advocate has the right to provide support as they decide. There is no reference to checking capacity or consent at all.
Lord Roborough (Con)
The noble Baroness obviously makes a good point, and this is a complex and sensitive area. We are to some extent relying on the competence that we clearly expect to see from independent public advocates to make the right decisions in what will be varied situations. We think it would be more appropriate and flexible to address this in guidance.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the noble Baroness, Lady Brinton. As she persuasively said, there are many other areas where public bodies take children’s views into account. She went through them—health, education, social services and the rest—and I gave my own particular example. The gist of the noble Lord’s argument was that it is not for the IPAs to undertake this role, that there are other ways of making these assessments and that how that happens in practice would be addressed in guidance. I will consider that answer and see whether we want to take this further, because we are trying to make victims—in this case child victims—as explicitly supported in the Bill as possible. I will consider whether a further amendment is appropriate.
My central point is that, in my experience, agencies over the last 40 years, let us say—the time of my adulthood—have consistently underestimated the capacity of children to engage in difficult issues. This needs to be handled sensitively, it needs to be managed and it needs to be clear that it is the adults who are making the decisions, but listening to children in a direct way is a good thing to do, both for the children and for the adults making the decisions, and that is what these amendments seek to achieve. Having said that, I beg leave to withdraw the amendment.