Victims and Prisoners Bill

Baroness Brinton Excerpts

Report stage
Tuesday 30th April 2024 Lords Chamber

[Baroness Finn (Con)]

My Lords, I spoke in Committee on behalf of my noble friend Lady Morgan and I support her amendment today. I commend the tenacity of Stella Creasy, my noble friend and other noble Lords in engaging with various government departments, and I thank my noble friends the Ministers for engaging with her and Stella over some of the more complex issues involved.

I appreciate that this is not completely straightforward, but the fact that it is difficult to reach a conclusion should not prevent us tabling the amendment and getting it right. While it is disappointing that we do not yet have a government amendment to scrutinise, I thank my noble and learned friend the Minister for agreeing to table an amendment that we hope will cover all the areas of concern at Third Reading.

It is hard to overemphasise the toll that malicious complaints take on individuals, their mental health and their family life. I take a real case of someone who suddenly, out of the blue, received a call from the local police sharing details of a complaint made about the treatment of her children. Despite the false claims being robustly rebutted—her children had attended school, were taken to the dentist and were registered with their local GP, despite allegations to the contrary—this mark remains on her record and that of her children. She describes it as feeling like “the sword of Damocles hanging over my head”. It is a constant worry. It is simply not right that many victims find that, even if the person targeting them has been convicted, their harassment continues because such records remain. The retention of this data has lasting consequences for all individuals involved.

I am not going to repeat all the arguments but will quickly emphasise three points. First, limiting this amendment to victims of crime where the data is linked to that crime would ensure that it does not become open to abuse, but stalking and harassment involve many actions by perpetrators, so it is important that the drafting of these amendments should not be too narrow. Secondly, while there needs to be a clear threshold to show that the retention of data will continue the harassment, the removal of data should not be confined to criminal convictions. My noble friend Lady Morgan has made the case for the various thresholds very clearly.

Finally, if an individual makes a malicious complaint about someone to the police, the police can act to remove that record. If chief constables have clear guidance that covers the removal of malicious allegations, it should surely be possible to have similar guidance for malicious reporting to other organisations. I am very grateful that my noble friend the Minister has agreed to explore this further.

[Baroness Brinton (LD)]

My Lords, it was an honour to sign this amendment and to join in some of the meetings with the noble Baroness, Lady Morgan, and colleagues and Stella Creasy. Other colleagues have already explained the progress that has been made. We are hoping to hear from the Minister shortly, but I just want to say that, should the noble Baroness, Lady Morgan, decide to call a vote, we on these Benches will support her. If she does not, we look forward to seeing an amendment at Third Reading.

[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.

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Moved by

[Baroness Brinton]

100: After Clause 27, insert the following new Clause—
“Duty to inform victims and families of the unduly lenient sentencing schemeAfter section 36 of the Criminal Justice Act 1988, insert—“36A Duty to inform victims and families of the unduly lenient sentencing scheme(1) The Secretary of State must nominate a government department to inform victims and their families of their rights set out in section 36 (reviews of sentencing).(2) The information provided under subsection (1) must include the type of sentence and the time limit for application, and advise that applications must be made to the Attorney General.””Member’s explanatory statement
This amendment will ensure that victims are aware of the Unduly Lenient Sentencing scheme which presently has a strict 28-day timeframe in which to apply, there being no power to extend the time.

[Baroness Brinton (LD)]

My Lords, it is a pleasure to lay Amendments 100 and 101 for your Lordships’ consideration. As we had a considerable debate on them in Committee, I propose to outline only the briefest reasons why I have re-laid these amendments originally laid by the noble Lord, Lord Sandhurst.

The whole object of the Bill is to give victims some rights that would at least go some way towards matching the rights for offenders and other participants in the criminal justice system. At present, the permissions for a victim to argue and challenge a sentence for being unduly lenient are completely different from those of everybody else involved in the system. For example, offenders can exceed a 28-day timeframe by exceptionality—all they and their counsel have to do is demonstrate that there really are exceptional circumstances. But, for victims, there is no such exception at all, even if they were not informed by the police or the courts about the sentence itself but were left completely in the dark.

We know from the many stories that were retold in Committee that there is a real sense of injustice. One victim had received notification of the sentence on the 28th day by which she had to apply for a challenge. It was delivered to the Attorney-General’s office, and nobody was there, even though it was within the timeframe. Because it was not opened, she was not permitted to challenge the sentence.

I am very grateful to the Minister for the discussion we have had, and I look forward to hearing him speak from the Dispatch Box. What we seek through these two amendments is to make sure that victims have the right, as everybody else in the criminal justice system does, to say, “Please will the Attorney-General reconsider this sentence for this crime, because we believe that it is unduly lenient?” I beg to move.

[Lord Russell of Liverpool (CB)]

I am happy to add my name to these two amendments from the noble Baroness, Lady Brinton. There is no need to speak at length about them; it is essentially about trying to ensure that victims have equality of rights, in this case with prospective prisoners. At the moment, frankly, they are disadvantaged and are put through a series of hoops—if, indeed, they can find out what in theory they are entitled to. I shall say no more than that I entirely support everything the noble Baroness, Lady Brinton, has said, and I look forward to the Minister’s response.

[Lord Roborough (Con)]

My Lords, Amendments 100 and 101 in the name of the noble Baroness, Lady Brinton, seek to extend the current time limit for applications under the unduly lenient sentence scheme, which currently must be made within 28 days of sentencing and require a nominated government department to inform victims and families of the scheme, including the relevant time limits.

Having a fixed time limit reflects the importance of finality in sentencing for both victim and offender. While we will keep this limit under consideration, there are no current plans to remove the certainty of an absolute time limit for victims and offenders alike. However, the Government recognise that there is uncertainty over how far in advance of the time limit expiring a victim must ask for a sentence to be reviewed, given the fact that the Attorney-General must refer the case to the Court of Appeal within that fixed time limit. We also recognise that the number of requests made to the law officers and therefore the number of sentences they consider has increased in recent years, due in part to increased awareness of the scheme.

The Government are therefore tabling an amendment to the Criminal Justice Bill which will amend the time limit in the unduly lenient sentencing scheme so that, where a request is made to the Attorney-General in the last 14 days of the 28-day limit, the Attorney-General will have 14 days from receipt to consider the request and, if appropriate, make an application to the Court of Appeal for a sentence to be reviewed. This will benefit victims as it will ensure that the Attorney-General will be able to consider requests that are made up until the end of the 28-day period.

As for informing victims about the scheme and the time limits, as I said in Committee, the victims’ code is already clear that victims should be informed about the scheme by the police’s witness care units at the same time as they are told about the sentence. This is expected to be done within six days of sentencing. However, I can go further and commit that when revising the victims’ code, the Government will look at the information about the scheme that is provided to make sure that it is as clear as possible. I hope this reassures the noble Baroness that action is being taken to address the issues she raised very eloquently in Committee and again today. Consequently, I respectfully ask her to withdraw the amendment.

[Baroness Brinton (LD)]

My Lords, I am grateful to all speakers, especially for their brevity. I particularly thank the Minister for outlining details of how the Government are considering changing this, but we are seeking parity of rights between offenders and victims here. Offenders can still appeal outside 28 days in exceptional circumstances, those exceptional circumstances being judged by the Attorney-General. That is not on offer at the moment. There are not going to be floods of victims applying via these amendments if they have concerns about the finality of sentencing, but for a few victims of very serious crimes, this would provide a small amount of discretion. We heard examples that show how rigid the current system is. Under these amendments, the Attorney-General could easily decide, as they do at the moment for offenders, if there are genuine exceptional circumstances. It is true that the 14-day proposals assist the Attorney-General’s office and the CPS; however, the fundamental injustice remains. Victims, and only victims, still have only 28 days to apply. On these grounds, I wish to test the opinion of the House.

Division on Amendment 100 called. Tellers for the Contents were not appointed, so the Division could not proceed.

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Moved by

[Baroness Brinton]

101: After Clause 27, insert the following new Clause—
“Unduly lenient sentences: time limitIn paragraph 1 of Schedule 3 of the Criminal Justice Act 1988, at end insert “, subject to paragraph 1A. (1A) The time limit of 28 days shall be extended in exceptional circumstances, which may include but not be limited to a failure of the relevant body to inform the victim and families of their rights under section 36 (reviews of sentencing).””Member’s explanatory statement
This amendment would allow for the 28-day timeframe to be extended in exceptional circumstances, and prompt criminal justice agencies to meet their obligation to inform the victim and families of their rights and the tight time limit.

[Baroness Brinton (LD)]

My Lords, with apologies to the House, it was Amendment 101 that I meant to divide on. I wish to test the opinion of the House.

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Will he reiterate that statement today by committing to a statutory duty of candour for all public authorities?

[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.

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I look forward to the Minister’s response to these amendments, which reflect the inquiry’s interim recommendations and, most importantly, the needs of the infected and affected survivors. Redress for the injustice they have endured must be the bedrock of the Government’s proposals. Many of the community are with us today or watching from home. We cannot let them down again.

[Baroness Brinton (LD)]

My Lords, I thank the noble Earl for meeting many of us in many different meetings between Committee and Report; I suspect there may be some more meetings to come. I have a number of amendments. For the record, my amendments to the government amendments are Amendments 119D, 119HA, 119K, 119M, 119P, 119T, 119U, 119V, 119X, 119Y, 121B, 121C and 121D. I also have Amendments 119YB, 119YC, 163 and 166.

Following discussions with various members of the infected blood community, I want to make a brief point about the approach in amendments laid by the Government. In Committee, the Minister said:

“The Government’s intention, therefore, is to bring forward an amendment on Report which will correct these two deficiencies”—


that he had outlined—

“and add further standard provisions to ensure a more complete legal framework when setting up an ALB”.

He went to explain that he was going to engage with us, and we are very grateful for that. He went on:

“That drafting is not yet complete. One of the main reasons for this—which I personally felt strongly about—was that we should use this Committee stage as an opportunity for a general debate on the infected blood scandal and, in advance of Report, for the Government to be made aware of the views expressed … around the Chamber”.—[Official Report, 26/2/24; col. 833.]


I thank the noble Earl for that comment, and I think he has certainly got our views.

However, instead of one amendment covering two deficiencies and a more complete legal framework, the Government laid nearly 40 amendments within the last 10 days without any equivalent to an Explanatory Memorandum or a long letter to explain their thinking. I accept that there was an explanatory statement under most of the amendments, but I have been operating two sets of the amendment booklet just to try to work out what on earth has been happening here.

The real problem is that, while we express general views in Committee, we are now being asked to vote—or not—on really fine detail, which I think many Members have been struggling with, just to get amendments laid. That is why there are 67 amendments in this one group this afternoon.

The noble Baronesses, Lady Campbell and Lady Meacher, set out why the infected blood community is concerned that there is not enough detail to give them confidence, despite the Government moving forward a bit. I just wonder if the Minister is open to a meeting, because I think we may be able to move further forward, particularly on the issue of interim payments that would satisfy both noble Lords and the wider community.

The noble Earl explained why the Government do not support Sir Brian’s approach to interim payments. He went into a lot more detail in a private meeting, for which I am grateful, but this week—or was it last week?—the Paymaster-General told the Commons that interim payments would be made through the existing schemes to the estates of those eligible for interim payment, where the deceased was registered with a current support scheme or one of its predecessors. While those in the infected blood community are content with this, they are still very concerned about the lack of timescale on interim payments where the deceased meets the criteria and the need for an assurance of one month, as we originally proposed. If it cannot be one month, we should have some idea of the timing.

I am very grateful to the noble Earl for explaining the two-tier system, where those who have not yet had interim payments but are known in the system are different from those who are not yet known. I think the community understands that as well. The victims also need reassurance where the government amendments refer to “may” rather than “must”. I know that there are some reasons for that, but, in the meetings with the community, the Paymaster-General may have to explain some of those reasons. Again, this is about rebuilding the confidence that he spoke so movingly about at the start.

The detail of the government amendments has been met with bemusement and anger by many of the community. It is partly about the timescales. I think the House is grateful that the Government are accepting Amendment 119CA from the noble Lord, Lord Ponsonby, but there is still no framework and no idea about tariffs. Worse, the threats to the victims and their families of this scheme remain. One widow told me that she was concerned that widows and children will end up worse off under the scheme than currently. So where is an impact assessment, as current payments may be stopped and there is no outline about what the tariff is? Somebody could end up with a proposal that is considerably less but has many years still to live, so how will they be protected from this happening?

Will recipients be asked to pay back support—“benefits” to you and me—that families relied on after their loved ones became infected and needed to be nursed and cared for by family members? Jobs and houses were lost and, frankly, we know that benefits have not been generous either. That is in the nature of benefits, but many people have been living this way for 30 or 40 years—now approaching 50 years for some. It would be egregious if those families were to receive compensation that immediately went to pay back decades of benefits. Can the Minister confirm that this will not happen? This is part of my Amendment 119HA, as an outline for framework tariffs and a clear statement that families will not have to pay back benefits. By the way, my amendments follow recommendations 6 and 8 in the interim report from Sir Brian, which was published nearly a year ago now.

I also have other amendments trying to give clarity for the position of the IB victims and their families. For example, there has been a lot of discussion with the Horizon postmaster victims about legal support. Will there be legal support for these families? My Amendment 119V says that they should have the option of that legal support, including people who have been supporting them at the inquiry and other places. That is not retrospective payment. It would be continuing support in the future, so that they can negotiate with the scheme.

My Amendment 121B refers to the appointment of a High Court judge as chair. I am grateful for the points that the noble Earl has made, but there is still no timescale and that remains a key issue. Could he explain to the House exactly why, and perhaps unpack a little more about whether the chair should be a judge or even a High Court judge, which is very much what the infected blood community wants?

Finally, I have laid Amendment 119YC, which uses the principle helpfully offered by the Government for their own amendment for the infected blood compensation body, to probe whether now is the time for a truly independent compensation authority overall. This body would act as the manager of all compensation schemes for victims of failures of public bodies. We do not have time this evening to discuss this in any detail, but it is appalling that we have the infected blood scandal scheme —still not sorted after over 40 years—the postmaster Horizon scheme, the Windrush scheme, the Grenfell disaster, the sodium valproate scandal, the vaginal mesh scandal and many others. The one thing common to all of these is that no Government, of any colour, have acted fairly or with reasonable speed to resolve the remedies for all these victims. Perhaps now is the time to begin that debate—not tonight, but at this time.

[Lord Waldegrave of North Hill (Con)]

I join other noble Lords and Baronesses in paying tribute to my noble friend, who has been extremely generous with his time in meetings. I am quite certain that he personally has been pushing in the direction that has led to really major progress. I declare an interest as a former Secretary of State and therefore a witness to the Langstaff inquiry.

The three months is excellent; the shadow organisation set up before the final report is good; the shadow CEO is excellent. I am interested in Amendment 119HA, from the noble Baroness, Lady Brinton. Like her, I would like the reassurance sought in her proposed new subsection (2):

“In assessing compensation under the scheme, no account should be taken of any past support payments”.


The structures of the tariff-based compensation and so forth seem right and sensible. If we can have reassurance on that also, it would be very helpful.

The major item in the noble Baroness’s amendment is one that sets off tremendous alarm bells in the former Chief Secretary lobe—or half—of my brain. The idea of letting the chair set the tariffs, even with these structures around them, would have been very alarming to me, as a former Chief Secretary, and would be alarming to any future person who has to be accountable for public expenditure.

None the less, I still hesitate on it, because every noble Lord has spoken about the requirement to rebuild trust, and my noble friend himself began his speech with that. If it were possible to provide criteria for the payments such that the chair was enabled to be independent within those criteria, that would rebuild trust in a formidable way. I would be very interested to hear what my noble friend has to say on that.

Rebuilding trust is the primary task, as it has been among the terrible casualties of this disaster—trust in the state, trust in the NHS and doctors, trust in everybody. Trust in Ministers, of course, has been severely damaged and we may have to take exceptional steps in this really unparalleled scale of disaster to rebuild that trust. Precedent is always a terrible weapon to deploy against anything, but one hopes that there would be a few precedents for disasters on this scale in the future. I would like to probe my noble friend a little further on that, but I end by thanking him again. I was privileged to work with him as a colleague in the past, and it is no surprise to those of us who have worked with him that he has been not only efficient but empathetic and careful, in the best sense of the word, in his dealings certainly with me and, I suspect, with other Members of this House as well.

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Moved by

[Baroness Brinton]

119HA: Leave out subsections (1) and (2) and insert—
“(1) The amount of a payment under the infected blood compensation scheme is to be determined in accordance with a framework of tariff-based compensation for eligible infected and affected persons, at rates which broadly take account of but are not limited by current practice in courts and tribunals across the UK and sums payable in other UK compensation schemes, and allowing an assessed basis for defined financial losses.(1A) The rates of compensation in the framework under subsection (1) must be based on the advice of the independent clinical and legal panels and set by the Chair, adopting the measures set out in Recommendation 5 of the Infected Blood Inquiry’s Second Interim Report.(1B) The awards which may be claimed under the tariff- based compensation under subsection (1) framework must be as defined at Recommendation 6 of the Infected Blood Inquiry Second Interim Report. (2) In assessing compensation under the scheme, no account should be taken of any past support payments made under other support schemes or their predecessors.”

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[Baroness Brinton (LD)]

My Lords, I am very grateful for everything the Minister has said to the House, including going through all the amendments in detail, and in particular for his offer to meet. I thank all the infected blood community organisations and people who have been working with many Peers around the House for their contributions. Six petitions on infected blood compensation were presented in the House of Commons today. That is how important this is. They are very keen that my Amendment 119HA, which summarises the key issues in Sir Brian Langstaff’s interim report, is voted on and those issues heard. On that basis, I wish to test the opinion of the House.

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Tabled by

[Baroness Brinton]

119V: After subsection (2) insert—
“(3) Applicants must have the option of access to independent legal help for the purposes of making their claim and any appeal.(4) The firms of solicitors who have represented core participants in the Infected Blood Inquiry must be the solicitors from which applicants may choose representation, with fees payable capped at public service rates.(5) Such legal fees must be paid by the IBCA and not the applicant and cannot be deducted from any award.”