Victims and Prisoners Bill

Baroness Brinton Excerpts

Committee stage
Tuesday 13th February 2024 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, in moving Amendment 122, I shall also speak to Amendment 123. I thank Justice and Inquest for the briefings they have given us about this issue. I hope the noble and learned Lord the Minister will be back with us at some point as the Bill proceeds, although the duo who have taken his place are doing a great job.

These amendments follow on from our debate at the end of the proceedings last week about victims of major incidents and how they should be treated. The amendments are about the fact that bereaved people and survivors in inquests and inquiries will have suffered serious harm but do not receive the same recognition from the Government as victims of crime, so are not entitled to the minimum level of support and services. Instead they are often expected to navigate complex legal processes, with little recognition of the harm they have suffered or the trauma they have faced.

Under Clause 2, the victims’ code in the criminal justice context would reflect the principles that victims

“(a) should be provided with information … (b) should be able to access services which support them … (c) should have the opportunity to make their views heard … (d) should be able to challenge decisions which have a direct impact on them”.

Applying these principles to the victims of major incidents and interested persons at inquests would have a significant, practical and symbolic benefit, consistent with the Government’s pledge to place victims at the heart of their response to public tragedies.

Extending the provisions of the victims’ code could be achieved by introducing a requirement in the Bill for the Secretary of State to issue a separate victims’ code relating specifically to victims in the context of inquests and inquiries. Such a code could be guided by the same principles and have the same weight and legal status as its criminal justice counterpart. Before drafting the code, the Secretary of State should be required to consult the survivors of major incidents and the bereaved. Further consultations should be required before any changes were made to the victims’ code or its provisions relating to victims in the inquests and inquiries context.

The Government could be invited to suggest their own way of achieving the proper support for victims of major incidents. These are probing amendments about the best way forward, and this may not be it. Inquest contends that

“affording victims of major incidents and Interested Persons entitlements under the Victims Code would represent a recognition of their status as victims of significant, and often wrongful, harm who should be treated in a manner that is dignified and promotes participation”.

I beg to move.

[Baroness Brinton (LD)]

My Lords, I thank the noble Baroness, Lady Thornton, for tabling these important amendments creating a code for victims of major incidents and the processes by which it should be laid before Parliament. At Second Reading, a number of noble Lords raised the problem in the Bill that faces victims who are not victims of a type of crime listed in Schedule 1 and relating only to the first part of the Bill. It is self-evident that the victims of major incidents are not all covered by crime, or sometimes criminality may not be evident for a long period after the incident. However, the consequences of these incidents are often life-changing and require the same sort of support that victims of serious crimes do.

It would be iniquitous if the victims of aircraft accidents, flooding disasters, stadium collapses and many others were not able to access the support of the relevant services via an advocate and agencies that they need. That is why amendments debated last week, as well as those today, make strong arguments for provision. The advocates also need to know what rights these victims have in major non-criminal incidents and which services to refer them to.

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[Baroness Thornton (Lab)]

I wonder whether the code would cover the Hillsborough situation. It seems that the definition the noble Lord has just given would not cover that situation—one in which people may think that a crime was committed but nobody has ever been charged with a crime, and there were definitely a very large number of victims.

[Baroness Brinton (LD)]

I am grateful to the noble Lord for allowing me to intervene. The other point he has raised about the type of—if I can call it this— “victimhood” completely ignores the experience of the victim, the journey they have to make, and the services, which are so vital to the victims’ code. How can he explain that victims of major incidents that are not deemed to be a crime at the time would be able access those services in the same way? They are no less victims.

[Lord Roborough (Con)]

I understand the points made by both noble Baronesses. I have had extensive dialogue with the department on this point today and I will try to give the best answers I can. We can follow up further beyond that.

As cases of non-criminal major incidents do not go through the criminal justice system, the measures in the Bill and code are not appropriate for this cohort. If a major incident subsequently becomes criminal, victims will be entitled to services under the code. The majority of measures under the code help those going through the criminal justice system, so would not be appropriate for those who are not.

In relation to support services under the code and broadening access, expanding these to those incidents where no crime has been committed could impact access to support services designed for victims of crime, but that does not prevent separate provision designed to meet the needs of those who have experienced a major incident.

[Baroness Brinton (LD)]

I am really sorry to intervene again and am very grateful to the noble Lord. The amendment does not say that it is the same victims’ code as under Part 1 of the Bill; this is a different victims’ code. Can he explain to your Lordships’ Committee why a separate code, often with references to different services and agencies, would impact on the other one?

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[Lord Roborough (Con)]

I apologise to the noble Baroness, Lady Jones of Moulsecoomb. I am grateful to the noble Lord, Lord Marks, for a much more eloquent summing up of what I was trying to say than I was capable of doing.

The Government acknowledge that there is a subset of victims of major incidents where a crime does not occur who are not being addressed because the victims’ code addresses principally the victims of major incidents where crime does occur. The Government believe that the independent public advocate will be a significant step forward in helping all victims of major incidents to have their needs met during this very difficult time.

The Government’s view is that the charter and the proposed code for victims of major incidents bear many similarities and it may be duplicative to implement both. The Government are also not convinced at this time of the necessity of placing these codes and charters which aim to change culture on a statutory footing, but we are happy to consult all Ministers, given the strength of feeling about how best to address the needs of victims of major incidents where crime is not involved. As I say, we have had dialogue today on exactly this matter and I am conscious that I am not giving noble Lords a very good answer but I think it is best if we agree to consult on that, if that is acceptable.

In answer to the points made by the noble Baroness, Lady Jones of Moulsecoomb, about cases where the victims’ code is not followed and where, potentially, victims are victims of state actions or some other incident, the victims can direct complaints to the organisation itself. It will have internal complaints-handling processes in place; I accept that in this particular instance that may not be much use. But if they feel that their complaint has not been resolved, they can escalate it to the Parliamentary and Health Service Ombudsman, who will investigate further.

Through the Bill, we are making it easier for complaints to go to the Parliamentary and Health Service Ombudsman where the complaint relates to the complainant’s experience as a victim of crime. It may also be open to victims to challenge a failure to deliver the entitlement set out in the code by way of judicial review. This will depend on the circumstances and standard public law principles will apply. As the most senior governance—

[Baroness Brinton (LD)]

I apologise for intervening again, but this is Committee and I am trying to understand. I am grateful to the Minister for outlining possible alternative routes, but he is suggesting two, three or four possible routes that a victim of a major incident, who may never have had any encounter with any of the services and agencies, has to know and understand. It is very complex. Is the Minister happy to meet between Committee and Report to discuss this? I do not want to detain the Committee with a couple of possible examples, but, thinking about other major incidents, I already have examples I would like to put to the Minister and his officials to try to understand how the system he is proposing would work. At the moment, it seems more of a muddle than the current system.

[Lord Roborough (Con)]

I am of course happy to commit to meeting to discuss this matter, but we are not leaving the victims defenceless in this situation: they will have an independent public advocate, who will help to guide them through all these processes. But I completely agree that we should meet and consult further on this matter.

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[Baroness Thornton (Lab)]

My Lords, in moving Amendment 124 I will speak to Amendments 125 and 128 in the name of my noble friend Lord Ponsonby. We are now, of course, continuing our discussion about major incidents and the role of the advocate.

The reason for Amendment 124 is that the press release introducing the standing advocate position states that the role will

“give victims a voice when decisions are made about the type of review or inquiry to be held into a disaster”.

However, there is no requirement in the Bill for the standing advocate to directly consider the views of victims of a major incident when advising the Secretary of State. The Bill provides for an individual other than the standing advocate to be appointed as the advocate in respect of a major incident. In these circumstances in particular, it is not clear from the Bill how and whether the views of victims will be communicated to either the standing advocate or the Secretary of State. That is the situation that Amendment 124 seeks to rectify. It would require the standing advocate to communicate directly to the Secretary of State the views of victims in relation to the type of review or inquiry to be held into the incident and their treatment by public authorities.

I turn now to Amendment 125. The Government have said that the appointment of advocates for individual major incidents will allow for expert insight from, for instance, community leaders who hold the confidence of victims. There is no requirement to consider the views of the community affected by the incident when deciding whether and who to appoint as a specialist advocate in relation to a specific incident. We appreciate that the need for rapid deployment of an advocate following a major incident—which noble Lords have been talking about already—may make it difficult to seek the views of victims before appointing an advocate in respect of that incident. However, once an advocate has been appointed, the Secretary of State should seek the views of victims as to whether to appoint an additional specialist advocate and who to appoint. This is what Amendment 125 in the name of my noble friend seeks to do.

Amendment 128 would require the Secretary of State to consider the views of the victims of an incident before making a decision to terminate the appointment of an advocate appointed in respect of that incident.

This suite of amendments strengthens the role of victims, which is what we are seeking to do in this Bill. I beg to move.

[Baroness Brinton (LD)]

My Lords, I thank the noble Lord, Lord Ponsonby, for laying these amendments and the noble Baroness, Lady Thornton, for introducing them. After the last group, we continue to delve into the role of standing advocates. Once again, the lack of a victims’ code for those major incidents not deemed to be criminal, or not obviously criminal, means that the voice of the victim may not be heard.

One would hope that any standing advocate would seek and relay to the Secretary of State the views of the victims, but it is not evident from the Bill as published exactly how that would happen. These amendments create the golden thread that ensures that a standing advocate must do that, and that the Secretary of State, before they terminate the appointment of an advocate, must consider the views of the victims of a major incident. For example, there might be a conflict of interest with a future Government who are unhappy about the direction in which a standing advocate is going. The standing advocate might think that what the victims are saying goes beyond what the Government had hoped, and there might be a push to remove the standing advocate. Under this amendment, the standing advocate would be able to produce the evidence brought to him or her from the victims to say why the matter should be taken seriously. At the moment, there is no such structure to do that.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I put my name to this amendment. It was tabled by the noble Lord, Lord Hampton, who is unable to be with us.

Amendment 130 seeks to ensure that a child’s capacity to make decisions for themselves is taken into account when determining whether or not the independent public advocate engages directly with them. Where it is more appropriate to engage with a representative on a child’s behalf, a child’s views and preferences on who is best placed for that should be taken into account.

The amendment follows the Children’s Commissioner’s advice for children’s eligibility for direct communication with their IPA, and from criminal justice agencies when making a victim information request. It should follow legal precedent, which means taking into account a child’s capacity and competence to take decisions. The commissioner suggests that the Bill should also establish processes for when it may not be appropriate for a parent to receive communication on behalf of their child.

Children must have agency when engaging with the criminal justice system, including around victim information requests and when engaging with the independent public advocate. This includes giving competent children the ability to indicate who they would like to receive communications from, including opting for direct communication, where this is judged to be safe and appropriate. This process should be consistently embedded as part of a thorough multiagency needs assessment of the child at the earliest opportunity.

I would like to add a different perspective to my amendment regarding my role as a family magistrate. We have, in recent years, moved further towards hearing directly from children when they are involved in particular family cases. We hear children’s views on which parent they should reside with, or whether they should be taken away from their parents. During my time in the family court system, which has been about 10 years, there has been greater trust in hearing directly from the children themselves. We should be very cautious about underestimating what they want to say to the court.

I have had direct and extremely moving experience of children wanting to have their say. They have had their say and they are absolutely clear that their views will be taken into account. However, their views will not necessarily be determinative; that is a decision for the court itself. I add that as an extra perspective on this amendment. The underlying purpose of the amendment is to make sure that the child victims’ views are properly taken into account. I beg to move.

[Baroness Brinton (LD)]

My Lords, I thank the noble Lord, Lord Ponsonby, for his introduction to this important amendment. I have to say that I was somewhat shocked when I first read the Bill. In Clause 33(6), it says:

“Where the advocate provides support to victims under the age of 18, the advocate may do so only by providing support to such persons as the advocate considers represent those victims”.


As a teacher, the noble Lord, Lord Hampton, who submitted this amendment, understands the vital issue of whether a child or young person—as a victim of a major incident—can have capacity to consent to the provision of direct support. To expect an advocate to make a decision, by passing it on to someone else to represent them, even if it is a parent—it may not always a parent, for reasons I will come to—without checking the child’s capacity or their interests and understanding is just plain wrong.

The example I want to highlight—I have chosen another non-criminal one, deliberately—is the aftermath of the Indian Ocean tsunami in 2004. Many children and young people were separated by the tsunami from their families, with no knowledge of who lived, died or who had been injured, and that included a number of British children. We know, from accounts at the time, that older siblings had to take on the care of and responsibility for the younger ones and for making contact and communicating with the British consul.

I cite this example because the issue of capacity and consent in those early days was vital, but in the longer term it would have been really helpful for those children and young people in their recovery to have been party to sensitive discussions about what had happened. There was mention in an earlier grouping about how one registers the death, and in this example there might have been important differential cultural practices in handling deaths and children might be the ones who can talk about what they want and what their family practice is without, for example, a British consul having to make that decision. I think one of the worst things an advocate or a Government could do would be just to impose someone to represent their interests without gaging their capacity first.

However, this does not just happen in criminal courts, and I am really grateful to the noble Lord, Lord Ponsonby, for citing the family court approach at the moment. We know that family courts often have to consider Gillick competency when hearing from children and young people about their own future. It is also commonplace in children’s social care and education and, above all, in health and about treatment. The CQC has a very helpful guide on the internet called Brief Guide: Capacity and Competence to Consent in Under 18s that sets out exactly what professionals need to consider. I am not suggesting that the CQC briefing or the rules that it uses should be adopted in whole, because issues about treatment are very different where somebody is acting as an advocate or having some parental responsibility. But large sectors of our public system—whether it is health, education or the courts—already use, and are trained to use, competency and consent. They understand when it needs to move to the area that the noble Lord, Lord Ponsonby, mentioned, where a voice is heard but a decision is not necessarily made on the child’s view. Clause 33(6) cuts that out completely, which seems to be totally extraordinary.

I look forward to hearing from the Minister on why it was there and whether there would be some possibility of negotiating something that reflects the actual practice in our courts and education and health systems for children at the moment.

[Lord Roborough (Con)]

My Lords, I thank the noble Lord, Lord Ponsonby, for introducing this amendment, which relates to an advocate’s support of the victims of major incidents who are under the age of 18. The noble Lord’s amendment would require the advocate to conduct, or refer to, a needs assessment of a victim under the age of 18, to establish whether they have the capacity to consent to receiving support directly from the advocate. Where it was deemed that a child did not have capacity, it would require the advocate to ascertain and have regard to the views of the child as to who best represents their interests before providing indirect support through a representative.

I understand and sympathise with the spirit of this amendment and emphasise that the Government recognise the inherent vulnerability of children in the aftermath of a major incident. Children should not have to bear the burden of navigating complex post-incident processes alone. In the aftermath of a major incident, victims and families will be dealing with grief and injuries and navigating post-disaster processes. This can be a difficult time, and we reasonably expect that child victims will have a parent or guardian who can facilitate their access to independent public advocate support and communicate their views on their behalf. If, in rare circumstances such as those cited by the noble Baroness, Lady Brinton, a parent or guardian is not suitable for this, the Bill gives the ability for an advocate to provide support to someone they consider represents the victims. The advocate will ensure that they listen attentively to the views of child victims through their representative and offer the support they need.

It is well established that child protection agencies within the local authorities have designated post-incident procedures and are well experienced in providing specialist and tailored support services for children. Therefore, it would be duplicative and inappropriate for the advocate to conduct needs assessments as they will not be specialised to carry out such functions, which could cause safeguarding concerns.

The noble Lord’s suggestion of a needs assessment is interesting and has merit in its attempts to give children greater agency. However, the Government do not believe that the advocate would be best placed to undertake this assessment. Furthermore, the Government do not believe that the answer to the issue at hand would be for the advocate directly to support children. The Bill sets out measures to allow children to be supported by a person that the advocate considers represents a child. In most circumstances, this will be a parent or guardian. However, we have not been prescriptive on who that person must be to allow additional flexibility. In rarer cases, it is already open to the advocate to better understand the needs of child victims in considering who represents them.

[Baroness Brinton (LD)]

I am very grateful to the noble Lord. He said two things that concern me. First, the amendment says:

“the advocate must conduct or refer to a needs assessment”,

which is what would happen through the CQC system I mentioned earlier, so it is not entirely dependent, as he implied in his response at the Dispatch Box, on the advocate themselves having to conduct that process and decision. The Minister may be coming on to this —in which case I apologise for raising it—but my main concern is Clause 33(6). I hope he is going to explain why it does not even talk about making decisions of capacity; it just says that the special advocate has the right to provide support as they decide. There is no reference to checking capacity or consent at all.

[Lord Roborough (Con)]

The noble Baroness obviously makes a good point, and this is a complex and sensitive area. We are to some extent relying on the competence that we clearly expect to see from independent public advocates to make the right decisions in what will be varied situations. We think it would be more appropriate and flexible to address this in guidance.