Tuesday 30th April 2024
(7 months, 3 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 57-III(a) Amendments for Report (Supplementary to the Third Marshalled List) - (29 Apr 2024)
15:33 - Division on Amendment 96 - Ayes: 214 / Noes: 208 - Amendment 96 agreed.
15:56 - Division on Amendment 101 - Ayes: 222 / Noes: 222 -
17:26 - Division on Amendment 113 - Ayes: 238 / Noes: 217 - Amendment 113 agreed.
18:05 - Division on Amendment 119AA - Ayes: 209 / Noes: 209 -
19:39 - Division on Amendment 119HA - Ayes: 67 / Noes: 175 - Amendment 119HA disagreed.
Baroness Thornton (Lab)
My Lords, I am only going to congratulate the noble Baroness, Lady Morgan. I think she has shown huge patience and persistence. I am not surprised, because my honourable friend Stella Creasy has those qualities too. As the noble Baroness, Lady Brinton, said, should the Minister not satisfy the noble Baroness, Lady Morgan, we on these Benches are ready to support her in a Division.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)
My Lords, I do not think that any message could have been conveyed more loudly and more convincingly than the one I have just received. I thank my noble friend Lady Morgan for this amendment and thank the other speakers on this topic.
As your Lordships have heard, the amendment seeks to revise current data protection legislation so that victims of malicious complaints involving third parties can prevent the processing—and subsequently request the deletion—of personal data from that complaint. The issue has been raised previously in the other place and discussed in your Lordships’ House in Committee. As my noble friend Lady Morgan has just said, the Government indeed recognise that complaints of this kind can be used to perpetuate harassment and that victims should be better supported.
In addition, as my noble friend also pointed out, we have to strike a balance between the processes for erasure and removal of all traces of such complaints and harassment on the one hand and the need to have regard to safeguarding concerns on the other. The issue is how we strike the balance. The Government’s present view is that the amendment as drafted is not one that we can accept because it is too wide and poses some operational and safeguarding issues. However, we have heard the concerns and, although we cannot accept the amendment today, I commit the Government to bringing forward an amendment at Third Reading to address these concerns.
To explain a little, if I may, we have to triangulate several different aspects: the nature of the harassment concerned, the provisions and procedures of the GDPR, the child safeguarding issues that are the concern of the Department for Education, the different procedures for various criminal and civil orders, the relevant police procedures and a number of other considerations, so it is not entirely straightforward. However, although it is not ideal to bring forward an amendment at Third Reading, this is a complex area and we should take the time to find an appropriate solution.
Lord Bellamy
Member’s explanatory statement
This amendment is consequential on my amendment of Clause 5, page 4, line 27 and Clause 18, page 17, line 17.
The Deputy Speaker (Baroness Finlay of Llandaff) (CB)
My Lords, there being an equality of votes, in accordance with Standing Order 55, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such amendment, I declare the amendment disagreed to.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this group of amendments is concerned with the scope and role of the independent advocate. I open by paying tribute to the work that my noble friend Lord Wills has done on this role for many years now through a number of Private Members’ Bills. If he chooses to test the opinion of the House on his Amendment 119AA, we will support it.
I shall speak briefly to the amendments in my name in this group. Amendment 104 would enable the Secretary of State to designate incidents causing serious harm or death to a small number of individuals as major incidents where there was a significant public interest in doing so. The noble Lord, Lord Marks, gave the example of Fishmongers’ Hall, where there were few fatalities but nevertheless it was a serious incident that had a national impact. The noble Lord and I will listen with interest to the Government’s response to Amendment 104.
Amendment 107 would require the standing advocate to communicate the views of the victims of a major incident to the Secretary of State. Amendment 109 would require the Secretary of State to consider the views of victims of a major incident on whether to appoint an additional advocate and who to appoint. Amendment 110 would place a requirement on the Secretary of State to consider the views of the victims of a major incident before terminating the appointment of an advocate appointed in relation to that major incident.
Amendment 111 would require the Secretary of State to make guidance under Clause 38 publicly available. Amendment 112 would require the Secretary of State to consult the standing advocate before issuing, revising or withdrawing guidance in relation to matters to which advocates appointed in respect of major incidents must have regard. I look forward to the Minister’s response to all those amendments, none of which I intend to press—they are essentially probing amendments.
I shall comment briefly on the amendment of the noble and learned Lord, Lord Thomas, about the situation in Wales. I listened with interest to what the noble and learned Lord, Lord Hope, said on the matter. I am not a lawyer, as I have said many times in this House, but the word used in the amendment is “concurrence”, not “consent”. I do not know whether that is a substantial difference but the whole of that mini-debate referred to the word “consent”, not the word used in the amendment. Nevertheless, the noble and learned Lord made an interesting and substantial point, and I look forward to the Minister’s response.
In conclusion, if my noble friend chooses to press Amendment 119AA, we will support him.
Lord Bellamy (Con)
My Lords, first I shall speak to the amendments tabled in my name, on behalf of the Government, which address the last point made by the noble Lord, Lord Ponsonby, about the relationship between the Secretary of State and the Welsh Government. Government Amendments 103A and 109A will require the Secretary of State to consult Welsh Ministers before declaring a major incident that occurs in Wales and before appointing an advocate in respect of that incident. I am aware that the noble Baroness, Lady Finlay of Llandaff, has tabled Amendment 109B, and the noble and learned Lord, Lord Thomas of Cwmgiedd, and other noble Lords have supported it.
The scheme here is being administered and funded by the UK Government. The Government’s position is therefore that the right level of involvement for Welsh Ministers is to be consulted by the Secretary of State before decisions are made, rather than requiring consent or concurrence, as Amendment 109B suggests. The Government believe it would not be proportionate for the UK Government to require the consent of Welsh Ministers, thereby in effect giving them a veto over those decisions. The Government must be able to act quickly following a disaster. I believe these amendments prioritise both speed and operability while respecting aspects of this policy that cover devolved areas.
For the avoidance of doubt, I add that, as far as the Ministry of Justice is concerned, we have perfectly good relations with the Counsel General for Wales, and we are in regular touch with Welsh Ministers on matters of mutual interest. For myself, I do not anticipate any difficulties arising from the sensible amendments proposed by the Government. Given that the Government have tabled these amendments, and having regard to the points I have just outlined, I hope the noble Baroness will not press her amendment. I shall be moving the amendments in my name in this regard.
Government Amendment 110A is a technical amendment, clarifying the grounds on which the Secretary of State may omit from reports material that, in the Secretary of State’s view, would prejudice an investigation, inquest or inquiry. This is an important amendment to ensure that materials relating to national security or those that might prejudice a subsequent investigation or criminal trial, for example, are protected. In the Government’s view, the amendments preserve the necessary balance between protecting that integrity and giving reassurance that the independent public advocate’s reports will not be unduly affected. It is a sensible precaution to take.
Baroness Sanderson of Welton (Con)
My Lords, I thank the Government for the review. My own view is that while I would also like there to be some of the powers mentioned by the noble Lord, Lord Wills, it is a position that will evolve over time. It is really important to have that review and right to recognise where the Government have moved, and I thank them for it.
Lord Bellamy (Con)
I thank the noble Baroness for that intervention. That is the Government’s position on Amendments 102 and 105.
Amendment 103, which is in the same group, would impose a duty on the Secretary of State to have regard to the emotional and financial interests of victims when deciding whether to declare a major incident. The Government’s view is that the definition of harm in the Bill already includes emotional harm, as in Clause 28(3). It is unlikely that financial harm would occur in isolation, without the other kinds of harms mentioned in the Bill. Certainly, harm is a major factor when the Secretary of State considers whether to declare a major incident, so the Government’s position is that Amendment 103 is not necessary.
Amendment 106 touches on the close family member point raised by the noble Lord, Lord Wills. The question is how these days you define a close family member. The Government do not believe that the face of the Bill is the appropriate place to address that concern. In modern society, there is effectively no set structure for a family and the Government need flexibility to capture those who need support. In the Government’s view, the approach is best left to guidance and the discretion of the IPA concerned to provide that flexibility. Of course, the input of the noble Lord and others when we draft the guidance on what kind of indications should be given in it will be very valuable, rather than having it set out in advance in the technical structure of the Bill.
We then come to Amendments 107, 109 and 110, tabled by the noble Lord, Lord Ponsonby, and Amendments 106A and 110ZA, tabled by the noble Lord, Lord Wills. These require the appointment of a standing advocate within six months of Royal Assent, the Secretary of State to consider the views of victims and the provision of support so that the independent advocate will have all the support necessary.
As far as the period of six months to appoint is concerned, of course the Government share the noble Lord’s desire for the standing advocate to be in place as soon as possible once the Bill becomes law. But there has to be a fair and open competition for the office. As I hope the noble Lord will appreciate, the Government will want to carry out all relevant due diligence prior to the appointment. That process will take some time. In addition, I can confirm that the standing advocate will be subject to pre-appointment scrutiny by the Justice Select Committee to ensure that the most appropriate candidate is appointed to the post. For those reasons, the Government do not feel that any change to the process is required at this time. In particular, the six-month period would be unduly restricting considering the importance of the decision and the processes that have to be gone through, including parliamentary scrutiny. It would be far too tight.
As far as taking into account the views of victims as part of the appointment-making process is concerned, the Government certainly share this goal. When the functions of the standing advocate come to be undertaken, as outlined in Clause 29, the advocate will advise the Secretary of State on the interests of victims, whether additional advocates are needed and whether to terminate et cetera. The Government are quite satisfied that the views of victims will, in the normal course, be gathered and fully considered on this topic.
It does not seem right to the Government that a formal consultation with the victims would be correct before these steps are taken, because that would have the potential to unduly delay matters. The general scheme of this part of the Bill is that the ground is already covered. There is no reason to suppose that victims will not be fully included in the various decisions that come to be made. The Secretary of State has committed to publishing a policy statement and I will ensure that this covers the factors the Secretary of State will consider when making these decisions. This includes the participation of victims.
As far as secretarial and other support is concerned, the advocates will be supported by a permanent secretariat. The Ministry of Justice has already allocated funding for this. Clause 31 provides an effective system of support for the IPA by making provision for a secretariat and remuneration. Work is already under way to provide for this secretariat and provide for the appropriate separation between the day-to-day functions of the ministry and this independent operation.
That essentially leaves Amendment 119AA, on which it has been indicated that the House’s opinion may be tested. It requires that, “within six months” of a major incident, the Secretary of State must announce whether he intends to establish an inquiry or similar fact-finding review and provide the reasons for his decision to Parliament. If he decides to establish a non-statutory inquiry, the person appointed must be given data-compelling powers.
Lord Bellamy
“(2A) Before declaring an incident that occurs in Wales to be a major incident, the Secretary of State must consult the Welsh Ministers.”Member's explanatory statement
This amendment would require the Secretary of State to consult the Welsh Ministers before declaring an incident that occurs in Wales to be a major incident.
Lord Bellamy
“(1A) Before appointing an advocate in respect of a major incident that occurs in Wales, the Secretary of State must consult the Welsh Ministers.”Member's explanatory statement
This amendment would require the Secretary of State to consult the Welsh Ministers before appointing an advocate in respect of a major incident that occurs in Wales.
Lord Bellamy
(g) prejudice—(i) the investigation or prosecution of an offence,(ii) an inquiry under the Inquiries Act 2005,(iii) an inquest under the Coroners and Justice Act 2009, or (iv) any other investigation or inquiry by a person exercising functions of a public nature.”Member's explanatory statement
This amendment would allow the Secretary of State to omit material from a report to be published under Clause 36 where the Secretary of State considers that publication of that material would prejudice certain investigations, inquiries or inquests.
Baroness Brinton (LD)
My Lords, it is an honour to follow the right reverend Prelate the Bishop of Lincoln and the noble Baroness, Lady Thornton. I have also signed Amendment 113. I will not repeat everything that I said in Committee, but the experience of the duty of candour in the NHS has been a very useful example. As we have heard, it is a professional responsibility to be open and honest with patients and families when something has gone wrong. It also allows people to say sorry. Even in the NHS, the lawyers still do not want people to say sorry, but it is really important. Above all, where the duty of candour works well, it has changed the culture and values of the organisation.
I make that point because this is not just about after the event. Having a duty of candour can completely change the delivery of the service. It makes everybody who works in it—and, in the NHS, those who are regulated—behave and think differently. In exceptional examples, it will avoid disasters, which is important. That is why I support Amendment 113. It clearly does not work perfectly, because we are hearing stories of things that have gone badly wrong in hospitals, but I suspect that some of those would not have come out if the duty of candour were not in place. That is what I mean about a change of culture.
I will not say much more. Now is absolutely the time to expand the duty of candour beyond the NHS. I agree with everything that the right reverend Prelate said about making sure that it applies to all public bodies and to public servants, because this is also about the behaviour of senior individuals. If the noble Lord, Lord Ponsonby, wishes to test the opinion of the House, these Benches will support him.
Earl Howe (Con)
My Lords, I am grateful to the noble Baroness, Lady Thornton, for Amendment 113. As she explained, it seeks to place a statutory duty of candour on all public authorities, public servants and officials after a major incident has been declared in writing by the Secretary of State.
The Government wholeheartedly agree that it is of the highest importance that we combat unforgivable forms of institutional obstruction and obfuscation. It is exactly for that reason that the Deputy Prime Minister signed the Hillsborough charter on behalf of the Government, which specifically addresses placing the public interest above one’s own reputation and approaching all forms of public scrutiny, including public inquiries and inquests, with candour and in an open, honest and transparent way. We want the charter to become part of the culture of what it means to be a public servant in Britain. The Deputy Prime Minister wrote to all departments to ensure that everyone who works in government is aware of the Hillsborough charter and what it means for the way that they work. Information on the charter has already been added to the Government’s propriety and ethics training and will shortly form part of the induction that all new civil servants are expected to take.
We are determined that the charter and its principles should be embedded into public life, and we are encouraging other public bodies and local authorities to follow our example by doing the same—a number of them have done so.
When it comes to statutory duties of candour, which have been mentioned by the noble Baroness, Lady Brinton, and others, the Government have taken strong and decisive actions in policing and in health and social care. However, different parts of the public sector have different roles and circumstances. This amendment seeks to capture everyone under one umbrella. While I recognise the good intention behind it, I do not believe—and nor do the Government—that in practice, it would be as effective or as proportionate a measure.
That is not to say that there is nothing in place already to bind other public servants. On the contrary, a very clear framework of legal and ethical duties most certainly exists, and the Government believe that this framework—which includes the Nolan principles on public life and the Civil Service Code—is fit for purpose and appropriate to reflect the myriad professional functions performed by the public sector.
The noble Baroness may argue that given the complexity of the existing framework, this amendment serves to bring it all together in one place, making it all more accessible and easier to understand. If she argues that, I am afraid I cannot agree. The amendment just cannot sit neatly on top of the existing frameworks. We should not just assume that it can work with the existing framework of duties, which are carefully calibrated for the specific circumstance that they bite on.
Given that no one wants to abandon the Nolan principles or the Civil Service Code, that poses a real problem. The Government firmly believe in the benefits of having a bespoke approach to different parts of the public sector, because each part is different. We are not convinced that a single overarching duty would work well in practice.
It is clear from our debates on the subject that a particular concern is the conduct of public officials at inquests and statutory inquiries. It is very important to understand something about those particular contexts. I can confirm that, regardless of one’s status or profession, powers already exist—backed by criminal penalties—to obtain documents and testimony in an inquest or statutory inquiry. As noble Lords will know, the same is true of court proceedings, where relevant disclosure is required by all litigants. If the concern here is primarily inquests, inquiries, and the like, it is unclear what this amendment would add.
As Bishop James himself acknowledged, this is an extremely complex area, and I do not think that anyone would disagree with that. He also said that the most important thing is for all bodies who sign up to the charter to
“make the behaviours described in the charter a reality in practice”.
In my view, it would be unwise to rush forward with an amendment like this one. I believe that it would be disruptive; it would not work well in practice; and it could also have consequences which have not yet been realised. If we are going to put further statutory duties in place, the subject needs a lot more thought by a lot more people. I emphasise that the Government share the desire to see an end to unacceptable institutional defensiveness, but the key to doing that is to focus on changing culture across the public sector.
Let us make progress on our commitments in the Hillsborough charter, and indeed elsewhere; let us monitor how they are embedding. If we believe that there are further issues to address, we will not hesitate to take the appropriate action. In the light of what I have said, I hope the noble Baroness will reflect and perhaps feel able to withdraw the amendment.
Baroness Finlay of Llandaff (CB)
My Lords, the amendment on the way that bodies are dealt with following a disaster is incredibly important. I remind the House of the “Marchioness” disaster back in 1989; there was an absolute outcry from the relatives about the way that some of those bodies were dealt with. The problem is that their grief is complicated when they hit different barriers and when they feel that the investigation and the post-mortem have been conducted inappropriately, particularly if they feel that things are being withheld from them.
To ensure that we provide support for these relatives, we need to make sure that there is a proper code of conduct and to improve the way that things are dealt with. I therefore think that this is an important probing amendment. I am glad that it is probing, because there are lots of things that could be altered and improved, but this work needs to be done and I hope the Minister will provide us with that assurance.
Lord Bellamy (Con)
My Lords, I thank the noble Lord, Lord Ponsonby, for Amendment 118, which extends legal aid to inquests. I completely understand the point that is being made, but the Government’s position is that the effect of the amendment is extremely broad and would give all interested persons the entitlement to free legal support and representation in any inquest, regardless of whether or not it follows a major incident, provided that at least one public authority was also an interested person. So, because of its width, the Government are unable to support the amendment.
In addition, the Government are already considering access to legal aid at inquests following major incidents. That is notably in response to Bishop James’s 2017 Hillsborough report. The MoJ is consulting on expanding free legal aid that is available for bereaved families at inquests following a major incident under this legislation and following terrorist attacks. In the Government’s view, the amendment goes beyond its stated purpose and the Government are already acting to deal with the issue of legal aid at inquests, so I respectfully urge the noble Lord not to press his amendment.
I turn to Amendment 119, a probing amendment. I am sure that everyone was moved by the description of the experience of Jenni Hicks, which was recounted by the noble Lord, Lord Wills. I was very sorry to hear about that experience. We very much appreciate the effect this must have had on Mrs Hicks and other families affected. In the Government’s view, Jenni Hicks and others are entirely right to have raised the issue in this Chamber. It is an issue that requires proper consideration. I know that Operation Resolve itself very much regrets the anguish and distress caused by the incident, and has offered its apologies. The officer in overall command has written to them setting out the actions taken to address their concerns, and last year I think the Policing Minister met with the families affected. The Home Office has been assured that appropriate procedures are now in place.
Lord Wills (Lab)
Can I just clarify this? I think the Minister accepts how serious an incident this was; I think it is accepted that this sort of contempt for the victims and the bereaved is probably pretty widespread, and that something has to be done to make sure it never happens again. Will he confirm that whatever code of conduct emerges from the processes he describes will be given the force of statute?
Lord Bellamy (Con)
My Lords, I am not at this moment in a position to give that confirmation at the Dispatch Box. I will give further thought to it, and write to the noble Lord in due course as to whether the Government are in a position to give that assurance. I see the force of the point.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been a short but interesting debate. I acknowledge the points that the Minister made on my Amendment 118, about the existing consultation that the Government are doing and the broadness of the amendment. What was contained in the amendment was an aspiration, I suppose.
My noble friend spoke to Amendment 119 and gave the very moving example of Jenni Hicks. The noble Baroness, Lady Finlay, also reminded us of the “Marchioness” disaster in 1989. Here again, the Minister said that the independent pathology review will look at processes. We look forward to what may come out of that, and to the Minister’s answer to my noble friend’s question about whether it will have the force of statute. For now, I beg leave to withdraw Amendment 118.
Lord Bellamy
“Review of Part 2(1) The Secretary of State must, as soon as reasonably practicable after the end of the review period—(a) prepare and publish a report about the operation in the review period of this Part, and(b) lay the report before Parliament.(2) The “review period” is the period of 18 months beginning with the day on which the power in section 30(1) (appointment of advocate in respect of major incident) is first exercised.”Member’s explanatory statement
This new Clause would require the Secretary of State to review the operation of Part 2 in the period of 18 months following the first time an advocate is appointed under Clause 30.
The Deputy Speaker (Lord Faulkner of Worcester) (Lab)
My Lords, there being an equality of votes, in accordance with Standing Order 55, which provides that no proposal to amend a Bill in the form in which it is before the House shall be agreed to unless there is a majority in favour of such amendment, I declare the amendment disagreed to.
Earl Howe
“Infected Blood Compensation Authority(1) A body corporate called the Infected Blood Compensation Authority is established.(2) In this Part that body is referred to as “the IBCA”.(3) Schedule (Infected Blood Compensation Authority) contains further provision about the IBCA.”Member’s explanatory statement
This new Clause establishes the Infected Blood Compensation Authority.
Earl Howe (Con)
My Lords, I will speak also to the other government amendments in this group. I am grateful to have the opportunity to do so. These amendments collectively provide the necessary legal framework to establish an arm’s-length body and pay compensation without undue delay. Let me assure the House and those listening that the case for compensation is clear and the Government will pay compensation to those infected and affected by the infected blood scandal. The government amendments demonstrate our absolute commitment to deliver long-overdue justice to victims of infected blood.
On 20 May, the infected blood inquiry will publish its final report. This will be a historic day for those who have sought answers for decades, and I hope and trust that the inquiry will give those impacted the recognition that they deserve. I take this opportunity to thank the chair of the inquiry, Sir Brian Langstaff, for the thorough work that he has undertaken to produce his final report and to recognise the bravery of those who have provided evidence and testimony to the inquiry. I recognise the resilience of each person who continues to campaign on this issue, and I hope my words today will provide reassurance that we are moving in the right direction. I also thank noble Lords on all sides of the House for working with the Government to ensure that the amendments provide the legal framework to get this right. My firm intention today is to provide some meaningful reassurance that we have heard the concerns and are committed to establishing a scheme that works and delivers for victims.
Let me turn to the government amendments. These amendments impose a duty on the Government to establish an infected blood compensation scheme. They also establish a new arm’s-length body named the infected blood compensation authority to deliver the compensation scheme. The authority will operate on a UK-wide basis to ensure parity and consistency. Perhaps I can make it clear in passing that the name of the noble Baroness, Lady Finlay, should not have appeared with that of my noble and learned friend Lord Bellamy at the top of Amendment 119C. I understand this was a clerical slip of the pen.
Victims of this scandal have waited far too long to see justice, and the Government share the determination of your Lordships to ensure that compensation reaches victims quickly. The government amendments pave the way for this, with early commencement provisions establishing the arm’s-length body on Royal Assent. The Government will give a substantive update to Parliament responding to the infected blood inquiry’s recommendations on compensation as soon as possible following 20 May. Subsequently, the details of the scheme will be set out in secondary legislation. The regulations to establish the scheme are subject to the “made affirmative” procedure the first time that they are made, which means they will have legal force immediately, and to the draft affirmative procedure thereafter, which applies to any changes to that first set of regulations that may be made in the future. This will provide parliamentarians with the opportunity to scrutinise the Government’s intentions without any unnecessary delay to implementation. Operational matters around the setting up of the arm’s-length body are subject to the negative procedure, again to prioritise the speed of implementation.
We recognise that Parliament and the infected blood community need clarity on when these measures will be in place. I can say now that the Government support the Opposition’s amendment to deliver the regulations establishing an infected blood compensation scheme within three months of Royal Assent, and we are committed to doing so. However, in committing to that, it is right that I should signal a caveat on a purely practical issue. We must acknowledge that the three-month period could unavoidably include periods or circumstances in which the Dissolution, Prorogation or adjournment of Parliament affects the Government’s ability to make the regulations. There is a practical reality here. These “made affirmative” regulations will need to be agreed within government before they can be made, and there are operational processes that simply will not be running as normal when Parliament is not sitting.
There is also the challenge, that I am sure many noble Lords will speak to, that we need to build trust with the infected blood community on the scheme’s provisions. This would require sufficient time where both Ministers and Parliament were available ahead of regulations being laid. We had hoped by tabling Amendment 157CA that we could find a constructive compromise on those issues. However, with a view to consensus and having accepted the Opposition’s Amendment 119CA, we will not now put that amendment to the House.
I must be clear that we are seized of the need to move as quickly as possible to provide compensation for victims regardless of any external pressures that may arise. Noble Lords will understand that it will take some time for the new infected blood compensation authority to become operational in its fullest sense, such that—
Lord Ponsonby of Shulbrede (Lab)
Before the Minister moves on from addressing my Amendment 119CA, I want just to be crystal clear that the Government are accepting the amendment without their own amendment. I understand what the noble Earl has just said from the Dispatch Box, but as far as my amendment is concerned, are the Government accepting it as it is?
Earl Howe (Con)
Yes, my Lords, that is right. In the spirit of consensus, albeit in the light of that practical caveat that I voiced, which represents a risk and no more.
It will take some time for the new infected blood compensation authority to become operational in its fullest sense, such that it is in a position to accept applications and deliver payments. There are formal processes around setting up an arm’s-length body of this kind which we cannot—indeed, must not—try to get around. However, the Government recognise the need to compensate victims of infected blood, and we are absolutely committed to doing this as quickly as we are able. For this reason, a shadow body will be established by 20 May, led by an interim chief executive. This will be critical to getting the practical work in place to ensure that the infected blood compensation authority can be fully operational as soon as possible. The shadow body will be able to begin work, such as implementing IT systems and appointing staff who are needed for assessing and delivering compensation payments, as quickly as possible.
We also understand the importance of ensuring that processes are in place for the compensation scheme to run smoothly. The Government are therefore clear that the infected blood compensation authority will have all the funding needed to deliver compensation once it has identified the victims and assessed claims. Once established, we intend that the scheme will make payments quickly and effectively.
I now turn to the membership of the infected blood compensation authority board and, in doing so, perhaps I may address Amendments 121B to 121H tabled by the noble Baronesses, Lady Brinton, Lady Featherstone and Lady Meacher. I would like to be clear with the House today that it is the Government’s intention that the process of recruiting a chair of the infected blood compensation authority will begin immediately. In the coming weeks, we will begin to identify potential candidates for the role. The successful candidate will be appointed through the usual public appointment process. The government amendment provides flexibility for the composition of the other members of the board, both executive and non-executive, albeit that minimum and maximum numbers are specified to align with the expected requirements of an ALB of this nature. As many noble Lords have made clear, building trust with those infected and affected by the scandal is critical. It is therefore the Government’s intention to involve the infected blood community in the appointment process for the chair.
Tomorrow the Minister for the Cabinet Office begins his engagement programme with those infected and affected by the infected blood scandal. That will be a useful opportunity to discuss how those impacted can be involved in the process of appointing the chair, while ensuring that that does not inadvertently delay the end goal of getting compensation into the hands of victims as soon as possible. I think we can achieve both objectives.
Earl Howe (Con)
My Lords, I thank all noble Lords who contributed, both today and during our previous discussions on this important topic. The moving statements we have heard throughout the passage of the Bill have been a true measure of the gravity of the infected blood scandal and its far-reaching impacts.
I will address the amendments spoken to in this debate, starting with Amendment 119HA in the name of the noble Baroness, Lady Brinton. I can today give her an assurance that the Government’s intention, via regulations, is to establish a tariff-based compensation scheme, and that people who are infected and affected will be eligible for compensation under the scheme. The regulations will provide clarity on what the scheme comprises.
We recognise that it is also important that an arm’s-length body is functionally independent. In common with Sir Brian Langstaff, we view this as critical for building trust with the infected blood community. However, there is an important principle here around maintaining government accountability. My noble friend Lord Waldegrave, whose comments I appreciated, referred to this. The Government simply must hold responsibility for overseeing the expenditure of taxpayers’ money, and it would not be appropriate for the rates of compensation to be set by the chair of the IBCA. Instead, the chair will hold an important role in the delivery of the scheme, making sure that the right people receive the right compensation and ensuring support for those who access it, against the parameters set out in legislation.
To address a further point in the noble Baroness’s amendment, those details are being informed by the expert group of clinical, legal and social care experts appointed in January to assist the Government in responding to the inquiry recommendations—and I shall refer to that group again in a moment.
In answer to the noble Baroness, Lady Brinton, on the selection of a chair for the IBCA, I gave reasons earlier why, although we are entirely open to the suggestion that the chair of the IBCA should be a High Court judge or, indeed, a retired judge, we may need to allow for the possibility that no judge will be available or willing to occupy that post. We want the right person in place as expeditiously as is proper. What is most important in that connection is that the IBCA is operationally and functionally independent and seen to be so, and the way in which we are framing the legislation provides for exactly that.
The government amendments are clear that a final UK-wide compensation scheme is being established, distinct from previous support schemes. The details of how payments are to be made will necessarily be set out in regulations. In any event, I can now confirm to the House that it is not the Government’s intention to deduct any past support or ex gratia payments, excluding any interim compensation payments, from the final compensation payments made by the infected blood compensation scheme. I hope that that provides the noble Baroness with some welcome reassurance on the points that she raised.
As I said earlier, I am not in the business of prolonging people’s uncertainty unnecessarily. I understand that the infected blood community and Parliament are keen for transparency on the Government’s intentions in regard to the compensation scheme. As my noble friend Lady Sanderson has rightly raised, there have been concerns about the anonymity of the expert group —and I have listened to those concerns. The Government took the decision not to publish the names of the expert group members alongside the terms of reference to safeguard the privacy and the ability of the experts to continue their front-line clinical roles while advising on government policy. However, once their initial work has concluded, the Government will ensure that the identities of the experts are disclosed.
Additionally, in the spirit of transparency, the Government will commit to publish the compensation tariffs when they are available, ahead of secondary legislation. I hope that my commitment to these actions today will provide the noble Baroness, Lady Brinton, with confidence not after all to press her amendment when it is reached. The Government amendments as drafted provide workable and appropriate legal powers to establish a compensation scheme in a way that is deliverable by government—and I fear that, should the noble Baroness’s well-intentioned amendments be moved and carried, this will simply not be deliverable for the Government and could ultimately delay the payment of compensation.
I turn to Amendment 119BA in the name of the noble Baroness, Lady Meacher. We absolutely respect the principles that the noble Baroness has raised, and the need for the infected blood compensation scheme to be efficient, fair and accessible to deliver justice effectively. It is our sincere intention to deliver this and put the needs of victims at the forefront of the operation. In saying that, I should add, as she will understand, that there are clearly many different needs and perspectives to take into account. The imperative for the new infected blood compensation authority to act effectively and efficiently towards that aim is already provided for in paragraph 11 of the new schedule to Part 3, as set out in government Amendment 121A. Creating more statutory provision around the exercise of functions is, I can assure the noble Baroness, not required.
I move to amendments that deal with adhering to the recommendations of the infected blood inquiry’s second interim report on compensation. These are Amendment 119EA, in the name of the noble Baroness, Lady Featherstone, and Amendments 119D, 119E, 119K, 119M and 119U, in the name of the noble Baroness, Lady Brinton. Ministers are clear that recommendations of the infected blood inquiry should form the basis of the government response. In January this year, an expert group was appointed to provide technical assistance in understanding how the inquiry’s recommendations could work in practice. I assure the House that the expert group is intended to build on and not replace in any way the recommendations made by Sir Brian Langstaff. This will help to ensure that the Government are able to respond to recommendations in a manner that reflects the impact that the scandal has had on the lives of individuals, while also considering what implications that has for delivery.
There are some specific instances where we must divert from recommendations in order to make the compensation scheme deliverable for the Government and to ensure that payments reach those eligible as swiftly as possible. I emphasise again that we are committed to working with the infected blood community to ensure that the compensation scheme meets its members’ individual needs. However, on reflection, I hope that the noble Baroness will understand that a formal consultation with legal representatives across the UK would lead to one sure outcome, which would be to delay the process of establishing the scheme. We do not consider that it is required.
The Government are acutely aware of the importance of establishing an accessible and sensitive compensation scheme for victims of inflected blood. I am grateful to the noble Baronesses, Lady Meacher and Lady Brinton, for their Amendments 119MA, 119V and 119VA, which speak to the support for claimants who would be accessing the scheme. First, I want to be clear that the infected blood compensation authority will provide support to applicants and, within this support, will consider the provision of legal support services. The government amendment allows for that support to be provided for victims, and the House can expect the Government to work with the infected blood compensation authority on the support that is required.
The government amendments set the legal framework required to enable the Government to move quickly to establish a compensation scheme; they do not limit in any way the procedure for applications. However, the operation of a scheme must be efficient and user-friendly. In-person hearings, as proposed in one of the amendments, could extend the timeline for payments for individuals. We will need to consider that idea carefully, alongside the delivery of the scheme as a whole.
The Government also recognise the benefits of providing legal assistance to individuals accessing the compensation scheme. I shall take that point away with me, in the way that I have just indicated—and I refer noble Lords to government Amendment 119S in this connection.
Leaving aside the fact that it would be undesirable to commit in this legislation to a panel of specific law firms to undertake government-funded work, it is important that any support provided is well considered against two principal benchmarks: first, that it provides the most benefit for claimants and, secondly, that it is consistent with the appropriate management of public funds.
I turn to Amendments 119CB, 119DA and 119DB, which introduce the word “harmed” into the government amendments that identify who may be eligible for compensation within regulations. I assure the noble Baroness, Lady Meacher, that the existing wording is sufficiently wide to capture all those infected and affected by the treatment of infected blood, and the additional drafting that she has suggested is not required.
Amendments 119J, 119P and 119T would change “may” to “must”. These amendments could inadvertently limit the breadth of what could be done under a general power and are therefore not considered appropriate at this stage. This is about having a process that is efficient for victims and that also allows for oversight of public money. I am very happy to meet noble Lords to discuss this issue further. Amendment 119P is a good example. If we were to change “may” to “must”, as that amendment proposes, it would be, as it were, dictating to the IBCA what it has to do. We are keen not to do that where we do not have to, because of the need to give the IBCA autonomy. I give that as an example.
“Infected blood compensation scheme(1) The Secretary of State or the Minister for the Cabinet Office must by regulations establish a scheme (“the infected blood compensation scheme”) for making payments to eligible persons.(2) “Eligible persons” means such persons within subsection (3) as the regulations provide are to be eligible persons.(3) The persons within this subsection are persons who—(a) have been infected as a result of being treated with blood, blood products or tissue,(b) have been infected as a result of another person being treated with blood, blood products or tissue, or(c) have been affected by another person being infected as described in paragraph (a) or (b).(4) The regulations may define an eligible person by reference to matters including (but not limited to)—(a) the kind of infection;(b) the duration or effect of an infection;(c) when the treatment occurred;(d) where the treatment was given;(e) who gave the treatment;(f) whether a person was treated with blood, blood products or tissue;(g) in the case of a person within subsection (3)(b), how the person was infected and their connection with the person who was treated;(h) in a case of a person within subsection (3)(c), how the person has been affected and their connection with the person who has been infected.(5) The regulations must provide for payments under the scheme to be made by, and the scheme to be otherwise administered by, the IBCA.”Member’s explanatory statement
This new Clause provides for the Secretary of State or Minister for the Cabinet Office to establish an infected blood compensation scheme by regulations.
“Payments(1) The amount of a payment under the infected blood compensation scheme is to be determined in accordance with regulations under section (Infected blood compensation scheme).(2) The regulations may make provision for the amount payable to eligible persons—(a) to be a specified amount;(b) to be an amount within a specified range;(c) not to exceed a specified amount.(3) The regulations may make provision—(a) for payments to be made as a lump sum or periodically;(b) for payments to be held on trust;(c) for interest to be payable on payments;(d) for the amount of any periodic payment to be increased to take account of changes in the value of money.(4) The regulations may make provision for payments to be made subject to conditions.(5) The regulations may make provision for payments under the scheme to be repaid to the IBCA (in whole or in part) in specified circumstances.(6) In this section “specified” means specified in the regulations.”Member’s explanatory statement
This new Clause makes provision about the kinds of payments that may be provided for by the infected blood compensation scheme.
“Applications and procedureRegulations under section (Infected blood compensation scheme) may deal with the procedure for the making and deciding of applications for payments under the infected blood compensation scheme and, in particular, may—(a) impose time limits for making an application or taking other steps;(b) make provision about evidence.”Member’s explanatory statement
This new Clause provides that regulations may make provision about applications under the infected blood compensation scheme and other procedural matters.
“Reviews and appeals(1) Regulations under section (Infected blood compensation scheme)—(a) may make provision for the IBCA to review decisions taken under the infected blood compensation scheme;(b) must confer a right of appeal to the First-tier Tribunal against a decision taken under the scheme.(2) If the regulations make provision under subsection (1)(a), they may provide for the right of appeal to be exercisable only if the IBCA has reviewed the decision.”Member’s explanatory statement
This new Clause provides that regulations may make provision for reviews of, and appeals against, decisions made under the infected blood compensation scheme.
“Information: infected blood compensation scheme(1) The IBCA may provide information to another person, and a person may provide information to the IBCA, for the purposes of any matter connected with the administration of the infected blood compensation scheme. (2) The IBCA may by notice in writing require a person to provide information to the IBCA for the purposes of any matter connected with the administration of the infected blood compensation scheme.(3) If a person fails to comply with a notice under subsection (2), the IBCA may apply to the appropriate court for an order requiring the person to comply with the notice.(4) The information referred to in this section may comprise or include personal data.(5) This section does not limit the circumstances in which information may be disclosed apart from this section.(6) Except as provided by subsection (7), a disclosure of information authorised by or required under this section does not breach—(a) any obligation of confidence owed by the person making the disclosure, or(b) any other restriction on the disclosure of information (however imposed).(7) This section does not authorise or require the processing of information if the processing would contravene the data protection legislation (but in determining whether it would do so, take into account the powers conferred and duties imposed by this section).(8) In this section—“the appropriate court” means—(a) in England and Wales and Northern Ireland, the High Court;(b) in Scotland, the Court of Session;“personal data”, “processing” and“the data protection legislation” have the meanings given by section 3 of the Data Protection Act 2018.”Member’s explanatory statement
This new Clause enables the IBCA and other persons to provide information to each other for the purposes of any matter connected with the administration of the infected blood compensation scheme and also enables the IBCA to require other persons to provide information for those purposes.
“Provision of support and assistance(1) The Secretary of State or the Minister for the Cabinet Office may make such arrangements as they consider appropriate for the provision of support and assistance to applicants (or potential applicants) for compensation under the infected blood compensation scheme.(2) The arrangements may be for the provision of support and assistance by the IBCA or any other person.”Member’s explanatory statement
This new Clause provides a power for the Secretary of State or the Minister for the Cabinet Office to make arrangements for the provision of advice and assistance to applicants and potential applicants under the infected blood compensation scheme.
“Payments to personal representatives of qualifying infected persons(1) The Secretary of State or the Minister for the Cabinet Office must make arrangements for the personal representatives of a qualifying infected person (in their capacity as such) to receive a payment of £100,000.(2) A “qualifying infected person” is a deceased person—(a) who was registered as an infected person under an infected blood support scheme, or with a relevant organisation, before 17 April 2024, or(b) whose death was registered as the death of an infected person under an infected blood support scheme, or with a relevant organisation, before 17 April 2024,and to or in respect of whom no payment has been made under the Infected Blood Interim Compensation Payment Scheme.(3) An “infected blood support scheme” means—(a) the England Infected Blood Support Scheme established under section 2 of, and paragraph 7C of Schedule 1 to, the National Health Service Act 2006,(b) the Wales Infected Blood Support Scheme established under sections 1 to 3 of the National Health Service (Wales) Act 2006,(c) the Scottish Infected Blood Support Scheme established partly under section 28 of the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), and(d) the Infected Blood Payment Scheme for Northern Ireland established under section 3 of the Health and Social Care (Reform) Act (Northern Ireland) 2009.(4) A “relevant organisation” means—(a) the Caxton Foundation (charity number 1142529),(b) the Eileen Trust (charity number 1028027),(c) the Macfarlane Trust (charity number 298863),(d) the Macfarlane (Special Payments) Trust established on 29 January 1990,(e) the Macfarlane (Special Payments) (No. 2) Trust established on 3 May 1991,(f) MFET Limited (company number 07121661), and(g) the Skipton Fund Limited (company number 5084964). (5) A payment is made in respect of a deceased person under the Infected Blood Interim Compensation Payment Scheme if a payment under that scheme is made to the person’s personal representatives (in their capacity as such) or the person’s bereaved partner.(6) The Infected Blood Interim Compensation Payment Scheme means the scheme of that name administered by the persons who administer the infected blood support schemes (whether or not in conjunction with other persons).(7) The arrangements under subsection (1)—(a) must include provision about the procedure for making payments to the personal representatives of qualifying infected persons;(b) may include arrangements for one or more other persons (which may in particular include relevant persons) to administer the making of payments, in accordance with that procedure, on behalf of the Secretary of State or the Minister for the Cabinet Office.(8) The arrangements under subsection (1) may be made, in whole or in part, by exercising powers conferred on the Secretary of State or the Minister for the Cabinet Office apart from this section.(9) In this section—“personal representatives” , in relation to a deceased person, means the persons responsible for administering the deceased person’s estate;“relevant person” has the same meaning as in section (Duty to co-operate with the IBCA).(10) The Secretary of State or the Minister for the Cabinet Office may by regulations repeal or amend subsections (1) to (9).”Member’s explanatory statement
This new Clause requires the Secretary of State or the Minister of the Cabinet Office to make arrangements for the personal representatives of deceased infected persons to receive a payment of £100,000 where no interim compensation payments have been made to or in respect of those deceased persons.
“Information: payments to personal representatives(1) A person may provide information to—(a) the Secretary of State or the Minister for the Cabinet Office, or(b) a person administering the making of payments under section (Payments to personal representatives of qualifying infected persons) by virtue of section (Payments to personal representatives of qualifying infected persons)(7)(b),for the purposes of any matter connected with the making of payments to personal representatives under that section.(2) The information referred to in subsection (1) may comprise or include personal data.(3) Subsection (1) does not limit the circumstances in which information may be disclosed apart from that subsection. (4) Except as provided by subsection (5), a disclosure of information authorised by this section does not breach—(a) any obligation of confidence owed by the person making the disclosure, or(b) any other restriction on the disclosure of information (however imposed).(5) Subsection (1) does not authorise the processing of information if the processing would contravene the data protection legislation (but in determining whether it would do so, take into account the power conferred by that subsection).(6) In this section “personal data”, “processing” and “the data protection legislation” have the meanings given by section 3 of the Data Protection Act 2018.” Member’s explanatory statement
This new Clause provides that a person may provide information to the Secretary of State or the Minister for the Cabinet Office, or a person administering the making of payments to personal representatives of qualifying infected persons on their behalf, for the purpose of any matter connected with the making of such payments.