Victims and Prisoners Bill

Debate between Baroness Hamwee and Earl Howe

Report stage
Tuesday 23rd April 2024 Lords Chamber

[Baroness Hamwee (LD)]

My noble friend Lord Marks of Henley-on-Thames wanted to speak to these two amendments but is unable to be here today, for which he apologises.

In Committee, the Government’s position, which was entirely sympathetic in principle—the noble Earl is rarely unsympathetic—was that the Law Commission is going to consider this in any event, so we should wait for it to do so before pressing the matter further. However, my noble friend says that that is not good enough. There is no reason for a further report before proceeding with the provision of free legal representation and advice for rape victims. If we wait for the Law Commission then there will have to be a further consultation, but that is not necessary—Liberal Democrats do not say that consultations are not necessary lightly—and then there has to be the process of producing a report and then, finally, a Bill. All in all, that is a long delay on an issue on which the principle is uncomplicated and, in any event, conceded. We support these two amendments.

[Earl Howe (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby, and, in her absence, the noble Baroness, Lady Thornton, for Amendments 77 and 78, which, as we have heard, seek to require the development of proposals for schemes to give victims of rape access to free independent legal advice and representation.

I agree that it is extremely important that victims are aware of their rights and confident in those rights, particularly when preparing for trial and when requests for their personal information are made. While it would be novel to provide access to free legal advice and representation for just one type of crime, we recognise that, if there is one category of people who are especially vulnerable, it is victims of rape and sexual offences. We also recognise that victims of these crimes are more likely to receive requests for sensitive personal information as part of an investigation, and that there are calls for independent legal advice to help victims with that situation as well.

That is why the Bill tackles the problem in a different way, by introducing measures designed to minimise requests for information, as my noble and learned friend Lord Bellamy explained in the previous group of amendments. Through the Bill we are placing a new statutory duty on the police to request third-party material relating to victims only when necessary, proportionate and relevant to a reasonable line of inquiry. Following the amendments tabled by my noble friend Lady Bertin, which the Government have accepted, there will also be a requirement that the Requests for Victim Information code of practice must state that the police and other law enforcement agencies should start an investigation with the presumption that requests for counselling notes are not necessary or proportionate.

My noble friend’s amendments also mandate that counselling notes can be requested by police only if they are likely to have “substantial probative value” to a reasonable line of inquiry. This higher threshold will ensure that police are not routinely requesting counselling notes and that the privacy of these victims is respected.

As I have said, we do not want to create a hierarchy of support by granting government-funded legal advice to victims of just one type of crime. Alongside that, there are some complex and sensitive considerations regarding the introduction of independent legal advice for such victims. In particular, we have to be mindful of the role of the victim as a witness in proceedings and avoid anything that might have an unintended impact on the defendant’s right to a fair trial. This concern emerged very explicitly from the pilot scheme run in the north of England. I direct that point particularly to the noble Baroness, Lady Hamwee, and, in his absence, the noble Lord, Lord Marks; we need to take account of the findings from that pilot, which expressed those concerns. A subsidiary but still important point is to consider the potential impact on timeliness as a result of another process being inserted into the system. That was another concern that arose in the pilot.

These are all far-reaching considerations which, I suggest, require expert input before any statutory measures are considered. The Law Commission’s review will consider all these factors, including—the noble Lord, Lord Ponsonby, may like to note—the impact of existing schemes in other jurisdictions. When it publishes its report later this year, its findings and recommendations on independent legal advice will provide us with the robust evidence base that we will need should we wish to go forward and develop the sort of policy proposals that the amendment points us towards. Therefore, it is right for us to wait for those findings.

There is a further point of principle which I ought to flag: it really is not appropriate to place a duty on the Secretary of State in primary legislation to develop policy, especially without any specification of what such proposals should entail and who is responsible for implementing them once they have been developed. Once again, it is much better that we await the Law Commission’s recommendations.

I know how important this issue is to noble Lords opposite, but I hope that I have given the noble Lord, Lord Ponsonby, sufficient pause as regards his original intention to divide the House. There are some good reasons why the amendments should not be pressed, which I hope I have been able persuade him of. I therefore very much hope that he will withdraw Amendment 77 and not move Amendment 78.