Monday 26th February 2024
(8 months, 4 weeks ago)
Lords ChamberVictims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Watch Debate Amendment Paper: HL Bill 31-VI Sixth marshalled list for Committee - (22 Feb 2024)
Baroness Brinton (LD)
My Lords, I have signed the amendment and it is a pleasure to follow the noble Lord, Lord Ponsonby, and the right reverend Prelate the Bishop of Manchester.
The 2013 Francis report set out the failings of the Mid Staffordshire hospital trust, explaining exactly why there needed to be a duty of candour. It said:
“This was primarily caused by a serious failure on the part of a provider Trust Board. It did not listen sufficiently to its patients and staff or ensure the correction of deficiencies brought to the Trust’s attention. Above all, it failed to tackle an insidious negative culture involving a tolerance of poor standards and a disengagement from managerial and leadership responsibilities. This failure was in part the consequence of allowing a focus on reaching national access targets, achieving financial balance and seeking foundation trust status to be at the cost of delivering acceptable standards of care”.
That could apply to many of the issues that we have debated in this part of the Bill on major incidents. Regulation 20—the duty of candour brought in across the NHS in 2015—was defined as
“the volunteering of all relevant information to persons who have, or may have, been harmed by the provision of services, whether or not the information has been requested, and whether or not a complaint or a report about that provision has been made”.
I will refer to that duty of candour in today’s debate on a later amendment.
The CQC points out that we must remember that there are two types of duty of candour—the statutory and the professional—both of which
“have similar aims—to make sure that those providing care are open and transparent with the people using their services, whether or not something has gone wrong”.
The implementation of the duty of candour covering the NHS applies to all healthcare providers, registered medical practitioners, nurses and other registered health professionals where there is a “belief or suspicion” that any treatment or care provided by them or their trust
“has caused death or serious injury”.
It is important for the NHS that it is for people who are registered, as it is with the police. If we ask to broaden it, and we do, we need to think carefully about who it should cover, because these people must be accountable—probably through registration.
Although it is a decade since the duty of candour was introduced, serious incidents, including death and injury, have continued in the NHS. Responsible hospital trusts and providers, as well as the individual regulated healthcare professionals, all know that they will be held accountable to this standard. As was described by the two previous speakers, it is a no-fault system which overcomes the old problem that saying sorry implies legal responsibility. It sets out a standard for declaring that there is a problem as soon as someone—anyone—is aware, and, where used correctly, it reduces the agony of victims and their families facing the block of institutional silence. Where it is not used, the CQC will inspect and consider why.
I support the proposal from the noble Lord, Lord Ponsonby, that the duty of candour should cover public authorities, public servants and officials at major incidents, and they should follow it. Just think if the NHS had used the duty of candour for victims and families of the infected blood scandal, or if the police had used it in relation to Hillsborough instead of blaming the fans, or if it had been used by the council and other bodies involved in the fire at Grenfell Tower. However, just as importantly, the duty of candour changes organisations so that, where possible, they think before the event, which can also prevent major incidents. Staff put the safety of people first in all that they do. It will not prevent all major incidents, but it can either reduce or stop the consequences of a potential disaster and make the aftermath much easier to live with.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I thank the noble Lord, Lord Ponsonby, and all noble Lords who have spoken to this amendment, which would place a statutory duty of candour on all public authorities, public servants and officials in relation to a major incident. This is, if I may say so, a modified version of the Public Authority (Accountability) Bill that was previously put forward, which is known as the Hillsborough law, so the underlying question here is: should we have in statute, in one form or another, a Hillsborough law?
There is much common ground between us. At no point are transparency and candour more important than in the aftermath of a major incident. As the Government said in their Statement of 6 December in response to Bishop James’s 2017 report, it is of the highest importance to combat
“unforgivable forms of institutional obstruction and obfuscation”
and the “inexcusable … defensiveness” of public bodies in “their own self-interest”. We agree with Bishop James, and indeed with the speakers today, that what is needed is a change of culture. The question is: what is the best and most effective route to bring about that change?
In essence, for the reasons already set out in the Government’s Hillsborough Statement on 6 December and the debate that day in your Lordships’ House, the Government do not believe that this amendment, applying to officials across the whole public sector, would be an appropriate or effective way to prevent a repeat of the failings that occurred in the aftermath of Hillsborough. First, as a general point, a central feature of a case such as Hillsborough, and other similar cases, is the imbalance of power between the authorities on the one hand and the bereaved on the other. The creation of the independent public advocate for a major incident—who will no doubt pursue the victims’ interests with terrier-like determination, I hope—will go a long way towards rebalancing that previous imbalance of power and securing equality of arms. I suggest that the institution of the IPA is in itself a lasting tribute to the Hillsborough families who have campaigned to ensure that no other families ever have to suffer in the same way.
In addition, still on the equality of arms point, the Government have removed the legal aid means test for exceptional case funding for inquests and will consult on expanding legal aid for inquests where an IPA is appointed or terrorist offences are involved. Cabinet Office guidance will reaffirm the expectation that legal expenditure by public authorities should not be excessive and should be published. Again, those matters should go a long way towards rebalancing the position between the various parties.
The second point, which I think the right reverend prelate the Bishop of Manchester was, in a sense, already making, is that the Government have already tackled directly the central failure in the aftermath of Hillsborough, which was a failure by the police. As noble Lords will be aware, in 2020 the Government introduced a statutory duty of co-operation for individual police officers to ensure that they participate openly and professionally with investigations, inquiries and other formal proceedings. A failure to co-operate is a breach of the standards of professional behaviour and could result in disciplinary sanctions, including dismissal.
In the Criminal Justice Bill that was introduced in November 2023, which I hope will be before your Lordships’ House before too long, the Government are placing a statutory duty on the College of Policing to issue a code of practice relating to ethical policing. In advance of that, as has been mentioned, the Code of Practice for Ethical Policing, was laid in Parliament on 6 December under existing powers alongside the Government’s response to Bishop James’s report. That code, directed at chief constables, includes a duty to ensure candour and openness in the forces that they lead, to ensure that everyone in policing is clear what is expected of them and to provide confidence to the public that the highest standards will be met. That will be monitored, and chief constables will be monitored, by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services and by local police and crime commissioners.
A further area of concern, which the noble Baroness, Lady Brinton, referred to, relates to the NHS. One notes the Francis report of some years ago, and there are continuing concerns, for example, around events at the Countess of Chester Hospital that are the subject of a statutory inquiry by Lady Justice Thirlwall. There is already a duty of candour on the NHS under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 that covers everybody who is registered with the Care Quality Commission. The Government are reviewing that provision to see whether it is working properly. There may be details to discuss around exactly who it should cover and collaboration with the General Medical Council and the Nursing and Midwifery Council to ensure that the professional standards march in line with the statutory standards—that may be a matter for investigation—but, in principle, in the NHS, those duties already exist.
The same is also true, in effect, for statutory inquiries under the Inquiries Act 2005, backed by criminal penalties. It refers to court proceedings, where full disclosure is required of all litigants under well-established principles, and a duty of candour is expected by public authorities, notably in judicial review. For inquests, coroners have powers under the Coroners and Justice Act 2009 to obtain documents, administer oaths and question witnesses. There is a Ministry of Justice protocol that was specifically revised following Bishop James’s report, which requires government departments and lawyers to approach inquests with openness, honesty and full disclosure. A range of matters is already covered, so that leaves non-statutory inquiries, which the chairperson can request are converted into statutory inquiries in the event of obfuscation or non-cooperation. The Government feel that, in effect, the ground is already sufficiently covered in a very targeted way.
As for public servants working in central government, the Government have already reaffirmed their commitment to ensuring openness and transparency, as set out by my right honourable friend the Deputy Prime Minister when signing the Hillsborough Charter on 6 December 2023. The commitments in the charter are reflected in the existing framework of obligations and codes that apply to all those who work in government, such as the Civil Service Code, the Code of Conduct for Special Advisers and the Ministerial Code, to which we can add that public appointees to the boards of UK public bodies are subject to the Code of Conduct for Board Members of Public Bodies, which, in turn, incorporates the Nolan principles. Those matters, in the Government’s view, reveal a quite comprehensive coverage of the issue that we are discussing.
The Government also consider that the amendment in its present form would be practically unworkable, applying as it does directly to all public officials who may be involved in the context of a major incident. It would apparently require maybe dozens of officials, junior as well as senior, to come to individual and autonomous views on whether, for example, a particular document was in scope, or irrelevant, or privileged or covered by national security or whatever. That could easily give rise to many difficult and conflicting views, making the whole process almost impossible to manage and drawing civil servants into conflict with each other and their employers.
For those essential reasons, the Government do not feel that this is an appropriate way forward. The speakers in this debate did not raise the Post Office, which in some ways colours a lot of the background to this. On that point, I can say that the proposed legislation on the Post Office is clearly being driven by some very serious incidents of prosecutorial misconduct in breach of existing rules. We do not need new rules; they did not follow the old rules.
Baroness Brinton (LD)
It is good to see the Minister back in his place; we are pleased to have him back and I am very grateful for his comments. He mentioned the Post Office. I spoke about the importance of culture and making sure that things do not happen. While he is absolutely right on the legal side, there is an issue about the personal duty of candour that changes behaviour. Does he recognise that?
Lord Bellamy (Con)
Yes, the Government recognise that up to a point. What we are discussing is the right way to get there. The Government are not convinced that this statutory amendment is the right way, but there are other ways of doing it, through our codes and the provisions that we have for the NHS, the police and now the Hillsborough charter—the matters that have been mentioned.
I cannot go into specific detail on the Post Office, because we do not know what has happened, but the duty on a prosecutor to follow the codes that they must follow is a duty on that individual. I will not go any further than to make that comment.
Finally, in the spring, the Government hope to publish their response to a report by the Law Commission on reforming the common-law criminal offence of misconduct in a public office. We have to await that response to see whether it bears on the issues that we are discussing. With those points made, the Government recognise the sensitivity of and differing views on this matter. The Lord Chancellor’s Oral Statement on 6 December said, very explicitly, that we will keep it under review. While legislation alone and the Government’s view cannot ensure a culture of openness, honesty and candour, we do not rule out bringing forward legislation at some future point if we are persuaded that it is needed. The matter is still under reflection, from that point of view.
Lord Ponsonby of Shulbrede (Lab)
I thank all noble Lords who have spoken in this short debate. The noble Baroness, Lady Brinton, summed it up, really: while this is a probing amendment, it is about changing the culture and behaviour of organisations. I was talking to my noble friend Lady Thornton during this debate. She sits on an NHS trust and was saying that a culture is embedded in the way that the NHS practises its procedures now, which has come from it having a duty of candour for the last 10 or 11 years. The Minister made other points about addressing the same issues, so it is not as though one set of responses precludes another, such as the duty of candour.
Of course, I am pleased that the Lord Chancellor has said that he will keep an open mind on this and keep the matter under review. I acknowledge the Minister’s points about creating the independent advocate role, the review of legal aid and individual professional standards, which are being looked at, but none of them precludes also having a duty of candour. That was the point made by all who spoke in support of the amendment. Nevertheless, I thank the Minister for his response and beg leave to withdraw Amendment 133.
Lord Marks of Henley-on-Thames (LD)
My Lords, this group of probing amendments, which have the aim of ensuring decent and necessary payments to all those bereaved in this disastrous scandal, has given the Committee the chance to consider the appalling plight of the victims of the infected blood scandal.
We welcome Clause 40, in particular Clause 40(3)(a), which says that:
“In exercising its functions, the body must … have regard to the need of applicants for speed of provision, simplicity of process, accessibility, involvement, proactive support, fairness and efficiency”.
It is only to be hoped that the Government live up to the promise of that clause in future, because they have signally failed to do so in the past.
If this Bill has taught us anything, it is that all victims of crime, major incidents and appalling and deeply shocking medical errors such as this, as well as other administrative disasters such as the Post Office Horizon scandal, have so many needs that resemble each other. We need early admissions of responsibility and culpability. We need government and administrative bodies to face facts. We need to ensure that victims have early access to the services and support they need and that such services and support are in practice provided in full and in good time.
Of course, one of the tragic aspects of this scandal is that the need for speed is particularly severe. It is worth reminding ourselves that, since Sir Brian Langstaff’s interim report of April 2023, more than 70 victims have died. The noble Lord, Lord Bichard, gave evidence to that inquiry, as did the noble Lord, Lord Owen. Both spoke eloquently of its conduct, and it is worth remembering the conclusion of the noble Lord, Lord Bichard, that the state let people down and should accept responsibility. He spoke of defending the indefensible, and the noble Lord, Lord Horam, echoed his words. Delaying compensation is denying responsibility. As all noble Lords who have spoken have said, there is no reason at all to wait any longer—certainly not until the Government have digested at length the contents of Sir Brian’s final report. Any such delay would be a travesty of Sir Brian’s principal call, which was for urgency.
Sir Robert Francis’s recommendations, in his report in June 2022, on the way that compensation should be handled, along with Sir Brian’s report, now need urgent implementation. It is to be hoped that the work of the expert panel—established under the chairmanship of Jonathan Montgomery, who is the chair of Oxford University Hospitals NHS Trust, which was not a mile away from involvement in the crisis—does not delay or water down the recommendations of the two reports. It is right to say that the campaigners are deeply concerned, as the noble Baroness, Lady Campbell, stressed.
In opening the debate, my noble friend Lady Brinton and the noble Lord, Lord Owen, pointed out the strength and determination of this very long campaign. We mourn Lord Cormack, whose involvement in the campaign was also extensive and long lasting.
The noble Lord, Lord Owen, spoke of the difficulties facing doctors, and the lack of political will needed to ensure self-sufficiency in blood products in this country. We can only hope that the noble Lord’s optimism in expecting the Government now to react quickly and finally, following the report due in May from Sir Brian Langstaff, is justified. My noble friend Lady Featherstone and the noble Baroness, Lady Campbell, added their accounts of personal tragedy, and thereby movingly added to the demand for urgency.
We know that the Horizon case led to definitive action only following ITV’s television drama. It should not be the same with the infected blood scandal, but we understand that ITV has commissioned Peter Moffat to write such a drama, so perhaps public opinion will come to the rescue once again. The burden of my speech, and the speeches of all noble Lords who have spoken today, is that this should not be necessary in a civilised and compassionate democracy.
Earl Howe (Con)
My Lords, in arriving, as we now have, at Part 3 of the Bill, I should like to begin by thanking all noble Lords who have spoken so powerfully and movingly on a set of events which many regard as constituting the worst disaster in the history of the National Health Service. The story of those who received infected blood as part of their NHS care and treatment is one of unimaginable suffering and terrible tragedy over more than four decades. It is a story that is still not yet over. The victims’ suffering has been made even worse by an absence of full justice for those individuals and, alongside that, a failure to reach—as far as may be possible—a sense of closure.
The official public inquiry currently under way, under the chairmanship of Sir Brian Langstaff, is the start of delivering the justice that is needed. The inquiry has been informed by the expert work of Sir Robert Francis, and Sir Brian has so far published two interim reports on his findings, with his final report due on 20 May. Meanwhile, in the other place, Clause 40—as it is now—was added to the Bill to speed up the delivery process.
The Government accept the will of Parliament that arrangements should be put in place to ensure, as far as reasonably practicable, that the victims receive justice as quickly and efficiently as possible. Therefore, my desire—and, I trust, that of all noble Lords—is to see the Bill added to the statute book as soon as is reasonably practicable. The Government are well aware that every passing season sees more suffering, death and bereavement. We are therefore eager to avoid more needless delay.
Ministers have already taken action and given a number of undertakings. First, we have promised that within 25 sitting days of Sir Brian Langstaff’s final report being published, we will make a Statement to Parliament setting out the Government’s response. The period of 25 days is not a target but a deadline. We will issue our response as soon as we possibly can.
Secondly, in response to a recommendation from Sir Brian, we have made interim payments amounting to £440 million to infected individuals or bereaved partners registered with existing infected blood support schemes.
Thirdly, in readiness for Sir Brian’s final report, we have appointed Sir Jonathan Montgomery to chair an expert group whose remit is to advise the Government on some of the legal and technical aspects of delivering compensation. I realise that some have questioned Sir Jonathan’s appointment because of his former connection with Bayer. Noble Lords may wish to note that Sir Jonathan ceased to be a member of the Bayer bioethics council on 31 October 2023. The council was an independent advisory group which had no role in the day-to-day operations of the company. It has had no executive power in the operational business of Bayer.
I emphasise that nothing in the work of the expert group is intended to cut across the conclusions of the inquiry or the advice of Sir Robert Francis—quite the opposite, actually. The expert group is there to enable Ministers to understand certain technical issues and thus enable decisions to be taken more quickly.
On the amendment passed by the House of Commons, which we are now considering, noble Lords will understand that the provisions of any Bill need to be legally coherent and should not cut across the integrity of the statute book. There are two principal defects with Clause 40: first, its coverage does not extend to the whole of the United Kingdom. The Government are clear that infected blood is a UK-wide issue. For that very reason, the infected blood inquiry was set up on a UK-wide basis. In March 2021, we announced uplifts to achieve broad financial parity across the UK’s infected blood support schemes, increasing annual payments to beneficiaries across the country as a whole. Maintaining a commitment to parity across the UK is extremely important.
We also need to agree on a set of arrangements that are workable and, above all, work for victims. It is therefore essential for the UK Government to engage with all the devolved Administrations with those aims in view. That is what we are now doing. My right honourable friend the Minister for the Cabinet Office met counterparts from the Welsh Government, Scottish Government and Northern Ireland Executive earlier this month to discuss this matter; those discussions will continue.
The second principal defect of Clause 40 is that in proposing the establishment of an arm’s-length body, as Sir Brian recommended, it does not also propose any specific functions for that body. The Government’s intention, therefore, is to bring forward an amendment on Report which will correct these two deficiencies and add further standard provisions to ensure a more complete legal framework when setting up an ALB. I plan to engage with noble Lords in advance of Report to discuss the content of the government amendment once it has been drafted.
Lord Marks of Henley-on-Thames (LD)
The Minister mentioned that there will be government amendments on Report to address the deficiencies in Clause 40 that he has identified. Does he envisage having the opportunity, between now and Report, to prepare amendments to address some of the other legal impediments—for example, to widening the cohorts—that he has identified? That could accelerate clarification and speed up the process.
Earl Howe (Con)
I anticipate using every opportunity available to engage with noble Lords on not only what the amendments will comprise but what we intend to do thereafter. As the noble Lord will appreciate, there is a wealth of regulations in this space. I venture to say that quite a lot of the detail of the arrangements will be contained in regulations, which will be laid as soon as possible. To the extent that I can go into detail on what those regulations will contain, I shall be happy to do so, but I hope that the noble Lord will understand that I am not in a position to do so today.
Baroness Meacher (CB)
I apologise for interrupting the Minister. He referred to the payment of £100,000 to a lot of people in 2022, but is he aware that the whole point of Amendment 134 is to fill the gaps for all the people who did not receive an interim payment? When he referred to speeding up their response to the Langstaff inquiry, that was a verbal commitment, as I understand it. The point is that these people need an urgent payment of £100,000; as I understand it, they have not received any compensation, so it is urgent. We are talking about something that happened 50-odd years ago. The idea that we still need more time cannot be right, so I hope that the Minister can reassure us that absolutely everything will be done to get a payment of £100,000 out to the groups of people who have not yet received compensation—immediately and within a month of the passing of the future Act, as the amendment says.
Earl Howe (Con)
I perfectly understand the noble Baroness’s strength of feeling on this long-standing scandal. It may be of some reassurance to her if I repeat the words of my honourable friend the Minister for the Cabinet Office in the other place, who said in December:
“The victims of the infected blood scandal deserve justice and recognition. Their voice must be heard, and it is our duty to honour not only those still living and campaigning but those who have passed without recognition”.—[Official Report, Commons, 18/12/23; col. 1147.]
I met the Minister for the Cabinet Office to discuss these matters. My right honourable friend assured me that this is indeed his highest priority, and I undertake to the Committee that I will continue to work closely with him ahead of the next stage of the Bill.
I am grateful to noble Lords for their contributions to the debate and for highlighting so compellingly the issues that bear upon this appalling human tragedy. Ministers will reflect carefully on all that has been said. I hope my response has provided the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Brinton, with enough by way of assurance—although I wish I could reassure them even further—about the Government’s intended course of action to enable the noble Lord to withdraw his amendment and for the other amendments in the group not to be moved when they are reached.
Baroness Brinton (LD)
Before the Minister sits down, I would like to ask him a couple of questions. I am grateful to my noble friend Lord Marks, who asked exactly the question I wanted to know about: what is going to happen between Committee and Report?
In other instances, it has been quite speedy to set up a shadow body—after all, the Government now know how to do it. Is there any capacity to start setting up a shadow body that will be ready to go?
We do not yet know the timetabling for the Report days, but clearly Members of the Committee are going to need to see the Government’s amendments in enough time, particularly—to pick up the point raised just now by the noble Baroness, Lady Meacher—to try to address the deficiencies if those who are not currently included remain so.
Earl Howe (Con)
On the noble Baroness’s latter point, I hope to have extensive discussions with noble Lords about the Government’s amendments and their intended and literal effect.
On setting up a shadow body, I myself asked that very question. There are some issues here. I am advised that it would not save any time. There are still a number of decisions to be made on the government response to infected blood, and clearly we cannot pre-empt those decisions by establishing an arm’s-length body without clarity on what its precise functions or role would be. As I have said, our intention is to table amendments on Report that will correct the defects in Clause 40 and have the desired effect of speeding up the implementation of the Government’s response to the inquiry.
However, I will take that point away to make sure that there really is no advantage in not having a shadow body. The Government have done that before in other circumstances and it is worth thoroughly exploring as an option. I think I will be told that any idea of a shadow body would need to be considered alongside its interaction with the passage of the legislation and the Government’s response to the recommendations of the second interim report, and indeed the report as a whole, but I hope the noble Baroness will be content to leave that question with me.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been an important debate. In fact, I go further: it has been a historic debate, because in a relatively short debate we have had the noble Baronesses, Lady Featherstone and Lady Campbell, who spoke about very close relatives who have been affected by this tragedy; we have had the two noble Lords, Lord Bichard and Lord Owen, who gave evidence to the inquiry; and the noble Lord, Lord Owen, in his speech, went back the furthest, if I can put it like that, to 1975. There are Members who have spoken in this short debate who have tracked this issue for the many decades that it has lingered.
Nobody is questioning the best intentions of the noble Earl, Lord Howe; he has been involved in this issue in a number of ways over many years. My amendments are essentially probing amendments, and I acknowledge the letter that the noble Earl has sent to us. We will not press the amendment, but I was going to ask the same questions as the noble Lord, Lord Marks, and the noble Baroness, Lady Brinton, about process. The Government have said they will table amendments on Report, and the Minister said there will be an opportunity for noble Lords to see the amendments before then and to discuss them, but we may want to table amendments to his amendment and we will want to make sure we have ample time to do that. I know the noble Earl understands that point, but I repeat it from these Benches as well.
Earl Howe (Con)
My Lords, I am grateful to the noble Baroness, Lady Brinton, for her amendment, which, as she explained, would require the Government to publish a timeline for the payment of interim payments for victims of the Horizon scandal. As she knows, the amendment takes us back to a subject that the House has discussed several times in recent weeks. In all parts of your Lordships’ House, there is a strong desire to see justice for the victims of the Horizon scandal—in particular, to see them receive prompt financial redress. The Government share that desire.
The effects of the scandal on some postmasters have been, to put it at its mildest, truly awful. Some of them have lost their livelihoods, their homes or their health—or even all three. Others have faced serious financial impacts. The noble Baroness’s question is therefore extremely pertinent.
For reasons of history, there are three separate compensation arrangements in place; I hope that the Committee will allow me to put them on the record. One is for people who have had convictions for criminal offences overturned. A second, which is delivered by the Department for Business and Trade rather than the Post Office, is to top up the compensation settlement for unconvicted postmasters made at the end of the original so-called GLO High Court case, which exposed the scandal. The third—the Horizon Shortfall Scheme or HSS—is for postmasters who were neither in the GLO group nor convicted.
In two of the streams, we have recently announced fixed offers of settlement: £600,000 for those with overturned convictions and £75,000 for the GLO group. These fixed offers allow postmasters to receive substantial compensation without delay or hassle. Of course, those with larger claims will not generally want to accept these sums. They will instead, quite rightly, have their compensation individually assessed. For both groups, substantial interim payments are made promptly. Further payments are available to those facing hardship while their full claims are being assessed. We have undertaken to make first offers within 40 working days of receiving a completed application for the GLO scheme.
The HSS is already well advanced. All 2,417 of the people who applied by the original scheme deadline have had initial offers. More than 2,000 of them have accepted settlements and been paid. Late claims are still coming in—some stimulated by the ITV drama, in fact—and are being dealt with promptly.
However, two crucial drivers of the pace of compensation are not controlled by either government or the Post Office. First, the overturning of convictions has, of course, been in the hands of the courts, and it has been frustratingly slow. We believe that more than 900 people may have been wrongly convicted in this scandal, but, to date, only 97 of them have had their conviction overturned. The process has been not only slow but uncertain. In too many cases, the evidence has been lost or destroyed over time, and many postmasters have understandably lost all faith in authority and cannot face the prospect of yet another court case to clear their name.
That is why, on 10 January, the Government announced that they will be introducing legislation to overturn all the convictions resulting from this scandal. We recognise that this is an unprecedented step, but it is necessary if justice is to be done. I can tell noble Lords that, this afternoon, my honourable friend in another place has made a Statement about that legislation. We hope to introduce this legislation within a few weeks. I am sure that it will be widely supported across the House and in the other place, and that it will therefore be able to progress quickly. We hope to see it become law before the summer, with prompt compensation to follow.
That takes me to the second area where we do not have control of the timescale: postmasters and their lawyers need time to formulate claims and gather evidence, with some needing specialist reports from medical or forensic accounting experts. Setting arbitrary deadlines for the submission of claims would, I suggest, be deeply unfair to postmasters, and we therefore should not do it.
That is why the House recently and enthusiastically passed the Post Office (Horizon System) Compensation Bill, which implemented the Williams inquiry’s recommendation to remove the arbitrary deadline of 7 August 2024 to complete the GLO compensation scheme. It remains the Government’s goal to complete that scheme by August, but if postmasters need longer, that is fine.
The Government are determined to see financial redress delivered as quickly as possible for all postmasters, including those whose convictions will be overturned by the forthcoming Bill. However, setting a fixed timetable would entail rushing postmasters into major decisions about their claims and the offers they receive. I hope that, on reflection, the noble Baroness agrees that we should not do that, and will therefore feel able to withdraw her amendment.
The noble Baroness asked me a number of detailed questions. If she will allow me, I will write to her as fully as possible in response to her particular questions about legal advice, the Green Book, the logjam of claims and a number of others.
Baroness Brinton (LD)
I am grateful to the Minister for his response. As ever, it was thoughtful and very helpful.
I laid the amendment principally because it seemed to me that there were two issues. The first was about everything being done, where possible, by August, which seemed encouraging but clearly is not going to be hit in many cases. The detail that I gave to the Committee in the speech is what worries me more: there seems to be a chasm between Post Office Ltd and the postmasters about what is eligible in damage. I do not think it is just about whether people can get access to information, because of this proviso. I will be grateful for any letter, but would the Minister be prepared to meet between Committee and Report to discuss the detail? The most urgent thing, from their perspective, would be a grant for legal advice, given the complexity of applying. If that can be speeded up in any way, shape or form, that would be enormously helpful.
I suspect I will bring something back on Report, though probably not the same thing at all. In the meantime, I beg leave to withdraw the amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we also support this group of amendments. I want to reiterate the points made by my noble friend Lord Bach. You could not have had two more eminent Members of this Committee to table these amendments. The noble and learned Lords, Lord Burnett and Lord Thomas, are familiar with these types of decisions. I do not think I can add to the weight of the arguments put forward by the noble and learned Lord, Lord Burnett.
The only point I will make is about process. If the Minister says that he wants to think about this—I do not know what he is going to say—then it would be very helpful to know his thoughts before Report. From what I have heard of the argument, it seems that the Government have an uphill battle trying to defend the current position. If the Government are minded to think about this again, we really need to know what that is before Report.
Lord Bellamy (Con)
My Lords, the amendments proposed by the noble and learned Lords, Lord Burnett and Lord Thomas of Cwmgiedd, would mean that parole referrals under the new power in the Bill would be sent to the Divisional Court of the King’s Bench Division, which is part of the High Court, instead of the Upper Tribunal, which is currently used for most cases—although not for national security cases.
Noble Lords know that the Bill introduces a new power to allow the Secretary of State to refer a top-tier case—that is a case where the index offence was murder, rape, causing or allowing the death of a child, or serious terrorism—for a second check by an independent court if the Parole Board has directed release. The question is which court that should be. Noble Lords may recall that at one stage it was suggested—I think by a Select Committee—that it should be the Court of Appeal Criminal Division. The Government consulted the Judicial Office in June 2023. The result of that consultation was that a preference was expressed for the Upper Tribunal to hear those cases. The Upper Tribunal has wide-ranging powers under Section 25 of the Tribunals, Courts and Enforcement Act 2007, facilitated by the Upper Tribunal rules, which essentially gives it the same powers as the High Court. It has experience of hearing oral evidence. The Government’s view, in the light of the consultation with the Judicial Office, was that the Upper Tribunal was the appropriate court.
None the less, the Government feel that it is obviously desirable to sort this issue out in a sensible way and I am very happy to consider it further. I am even happier to say that the Government’s reflections will be shared before Report, so that everybody can consider their position. There should not be any particular controversy on this kind of point; it is a rather specialised point, if I may put it like that.
I turn to the amendments tabled by the noble Baroness, Lady Hamwee, and spoken to on her behalf by noble Lord, Lord Marks. The Government entirely agree with her that the processes ahead of us and how we are going to manage it should be very fully understood by all actors. I will briefly explain how the Government see things at the moment. First, the procedural elements of the new process may require amendments to the Parole Board rules and the tribunal rules—or the rules of whatever court we determine. That must be scrutinised by Parliament and go through a period of consultation. There will have to be a period of training of judges. We know that the referral process will need to be transparent and speedy. Work is currently in train as to how far this will be operationalised from the point of view, first, of maintaining public confidence and, secondly, on what basis the Secretary of State refers things to the relevant court—to use a neutral phrase for the time being.
Currently, the Government are working through exactly how the relevant tests would be applied. The Government propose to publish their policy on how the legislation will be applied, outlining how cases will be selected for referral and ensuring that prisoners, and importantly victims, are fully informed of who will be in scope. I envisage a transparent and open process by which the details of the new regime are sorted out.
Baroness Hamwee (LD)
Could I follow that up before the Minister goes on to the next point? Does he anticipate that there will be consultation with the sector—it is a very big sector of course—on the various points that he has quite rightly referred to? That would go down rather better and be much more useful than producing a policy in its final form and saying, “Here we are”. A draft policy or ideas for consultation would be welcomed.
Lord Bellamy (Con)
My Lords, I hear what the noble Baroness says, and it sounds entirely reasonable. I cannot, at the Dispatch Box, go any further than I have already gone, but the point is well made.
On that basis, I hope the Committee will be satisfied that the Government intend to be fully transparent and work co-operatively with the development of this new process.
Baroness Thornton (Lab)
My Lords, I do not need to add much to the words of the noble Baroness, Lady Brinton, because she has explained exactly why this is an important matter. I was slightly astonished when I read the amendment that this was the case and that this was something that we would need to remedy, so I look forward to the Minister’s response.
Earl Howe (Con)
My Lords, I too am grateful to the noble Baroness, Lady Brinton, for this amendment, which, as she explained, would require the Crown Court to automatically impose a restraining order on anyone convicted of a child sex offence; that would apply regardless of the type or length of sentence passed. There is no need for me to underline the horror of child sex offences and the lifelong harm that is inflicted on the victims. I therefore have a great deal of sympathy with the intent behind the amendment to do even more to try to minimise the impact of that harm, as well as protect the community from any further offending.
Restraining orders are a discretionary power available to judges to impose in cases where there is a need to protect people from harassment or conduct that causes fear of violence. The current regime allows for such orders to be imposed where there is sufficient evidence on conviction, post conviction or post acquittal. At present, applications for restraining orders are considered by the Crown Prosecution Service on a case-by-case basis, recognising that there is a need to keep a victim safe and take their views into account. Actions prohibited by the restraining order, such as going to certain locations or contacting the victim, may be a breach of the order which is punishable by imprisonment for up to five years. Variation or discharge of the restraining order must be undertaken by the court.
When dealing with child sex offences, the court has a range of sentencing options available that may include life sentences. The vast majority of offenders who are released are subject to licence conditions that could include conditions to protect the victim, such as prohibiting contact. Breaching the terms of any licence condition can result in an offender being recalled to prison.
Offenders are also subject to notification requirements, commonly known as the sex offender register, where individuals convicted or cautioned for a sexual offence must provide certain details to police, including address, national insurance number and bank account details. Furthermore, they will also be managed under Multi Agency Public Protection Arrangements, or MAPPA, for the duration of those requirements that, in many cases, will be for life.
Other measures to protect victims are also available. The sexual harm prevention order, or SHPO, can be made in relation to a person who has been convicted of a broad range of sexual offences, committed either in the UK or overseas. No application is necessary at the point of sentence, but courts may consider it in appropriate cases. Otherwise, applications can be made by the police, or other agencies, in preparation for the offender’s release on licence.
The prohibitions imposed by the order can be wide-ranging, such as limiting forms of employment that may involve contact with children or restrictions on internet access. The orders may be for a fixed period not exceeding five years but are renewable. More than 5,000 SHPOs were imposed in the year 2022-23, which shows that the courts are using the tools and powers available.
While I support the well-meaning intention of the amendment, I do not believe it is necessary, because there is a wide-ranging and effective set of measures to monitor and control offenders. I also suggest that the point at which these additional measures would be needed are when someone’s licence comes to an end; until then, conditions such as non-contact and exclusion can be in place on the licence. So it would be better to take decisions on the controls necessary at the conclusion of the licensing period, rather than attempt to predict them at the point of sentencing.
Requiring the Crown Court to automatically issue a restraining order as a condition of release in every case caught by this amendment would constrain the court’s discretion not to issue an order where it was not needed or desired. From a practical perspective, a mandatory restraining order imposed on an offender at the point of sentence, which could be many years before the end of the sentence, would be a duplication of some of the other controls I have already set out and it could create practical difficulties down the line, especially where the sentence is very long.
We also must remember the voice of the victim, which plays an important part in decision-making. Where an offender has received a custodial sentence of 12 months for violent or sexual offences, which of course include sexual offences against children, victims will be automatically referred to the victim contact scheme. Where the victim is a child, a parent or guardian may join the scheme on their behalf. If they choose to join the scheme, a victim liaison officer will inform them when the offender is going to be released and help them to request licence conditions that will apply upon the offender’s release, such as prohibitions on contacting the victim or entering an exclusion zone.
In conclusion, I hope I have adequately explained the wide-ranging provisions already available to safeguard victims, which we should allow the courts to impose as they see fit, according to the circumstances of a given case. I hope that, on reflection, the noble Baroness agrees and feels able to withdraw the amendment. In saying that, I make it clear, as I often do, that I am happy to talk to her after Committee to explore these matters further.
Baroness Brinton (LD)
I am very grateful to the Minister and I thank the noble Baroness, Lady Thornton. I am very grateful for his explanation of the system, but my difficulty with his response is that it does not make sure that the victim does not have to be proactive to go back to the court and make a statement, if they are very clear.
I hear what the Minister says about a sentence of more than 12 months, and I may return on Report with a slightly different amendment. This is a particular problem for victims of child sexual abuse of those who are discovered to have abused others and who present other issues. It is not just a one-off case that we are trying to resolve. In the meantime, I withdraw the amendment.
Baroness Thornton (Lab)
My Lords, I echo the worry of the noble Baroness, Lady Brinton, about this, partly exactly because it may not solve the victim’s problem that the noble Baroness, Lady Fox, outlined in proposing this amendment. We have also talked a lot about the unevenness of the criminal justice system’s data collection and everything else; I wonder how on earth it would do this, to solve what is probably a very small problem—but a challenge, absolutely—and whether there may be another way of resolving it. I look forward to the Minister’s remarks.
Earl Howe (Con)
My Lords, I am grateful to the noble Baroness, Lady Fox, for explaining the background to her amendment. It would require by law that the criminal justice agencies—the police, prisons and probation—identify and record any change of gender identity by a sex offender as a condition of their release on licence. It would also require the police to record the offender’s name and birth sex as a condition of their release on licence.
It may help if I outline the measures we already have in place, which I think address the spirit of this amendment. Part 2 of the Sexual Offences Act 2003 requires sex offenders who have been convicted of an offence in Schedule 3 to that Act to notify the police of their personal details annually and whenever they change. Those details include information such as names, including aliases, and addresses. They also include details of activity such as foreign travel and residence in a household with children.
Sex offenders subject to the notification requirements in Part 2 of the 2003 Act are managed under the Multi Agency Public Protection Arrangements. MAPPA is a statutory arrangement, through which the responsible authority—the police, prisons and probation—work together and with other agencies to discharge a statutory duty to co-operate, to assess and manage the risk posed by registered sex offenders and others living in the community.
In February 2023, the Ministry of Justice and His Majesty’s Prison and Probation Service created a presumption that all transgender female prisoners, whether they have a gender recognition certificate or not, would not be held in the general women’s prison estate. The Prison Service is able to verify, with the gender recognition panel, whether an offender has a gender recognition certificate. Any difference between an offender’s birth sex and assumed gender will therefore be recorded and made known to the probation and police services through their co-operation under MAPPA.
The MAPPA responsible authorities use the VISOR database to share information about registered sex offenders. VISOR enables the recording of sex, gender identity and gender presentation. An offender’s legal sex will be changed on VISOR only if they have provided a GRC to the police, probation or prison service. However, MAPPA agencies are still able to have regard to an offender’s change of gender where it is necessary to manage their risk, or prevent or detect crime.