Infected Blood Inquiry: Compensation Scheme
Earl Howe Excerpts(6 months ago)
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Baroness Primarolo
To ask His Majesty’s Government when the compensation scheme recommended by the Infected Blood Inquiry will be established.
Earl Howe (Con)
My Lords, the Government’s priority is to deliver compensation as swiftly as possible and with the minimum possible delay, as advised by Sir Brian Langstaff and the inquiry. The infected blood compensation authority is up and running in shadow form already and will be formally established in law as soon as the Victims and Prisoners Bill receives Royal Assent.
Baroness Primarolo (Lab)
My Lords, I thank the Minister for his reply. As a former Minister for Public Health, I offer my apologies to the victims of this health tragedy—I am very sorry indeed. Can the Minister clarify the Statement he made yesterday and explain what steps the Government are taking to ensure that people who have not received the first interim payment do so as soon as possible?
Earl Howe (Con)
My Lords, I recognise the noble Baroness’s long-standing interest in this very vexed area during her time as a Minister in the Treasury and the Department of Health. On that particular category of claimant, there is a GOV.UK page where those who have not already received payments in an interim form can register their interest. We have also said that we will pay interim payments of £100,000 to the estates of deceased infected people who were registered with existing or former support schemes, and that would apply where previous interim payments have not already been made.
Baroness Brinton (LD)
My Lords, yesterday in the Commons, John Glen, the Minister, said that there are
“a couple of categories in which there is a potential risk”—[Official Report, Commons, 21/5/24; col. 759.]
of claimants being worse off. Some of the widows have been in touch because they are concerned that the Government’s proposals will repeat the problems relating to top-up payments from the Macfarlane Trust. Sir Brian’s recommendation 13(b) to keep regular payments and merge them fully into the new scheme, supported by Sir Robert Francis, already seems to be different from what the IBCA helpline is telling these widows. Will the Minister agree to meet and to make sure that this does not happen?
Earl Howe (Con)
Yes, most certainly. That should not happen. We are determined that no eligible claimant should lose out as a result of the transition from the support payments to compensation payments; I am concerned to hear that different messages are being propounded on that. I announced yesterday the plans for the support scheme payments, but those who are legitimately in receipt of support payments have an expectation of receiving a certain sum of money over their lifetime and that expectation will be honoured.
Lord Dobbs (Con)
My Lords, something really rather terrible has been going on, because it is not just the infected blood scandal that we are suffering from. We have the Post Office scandal that has gone on for 25 years and counting, and the Hillsborough Stadium disaster lingered on for 35 years. We have the Rotherham grooming scandal, which is another three decades; the Stephen Lawrence inquiry, with the family requiring two decades to get justice; and the Mull of Kintyre helicopter crash—another two decades. Something has gone very badly wrong with our system of justice; these scandals have become endemic in our system of government. I ask my noble friend to reflect on that and to perhaps propose what we are planning to do to stop our fabled system of justice becoming junk.
Earl Howe (Con)
My Lords, I have no doubt that the same thought has occurred to many of your Lordships. The systemic moral failings exposed by Sir Brian Langstaff in relation to infected blood raise profound questions about the defensive culture of government and the public services at every level. The findings of this recent report undoubtedly have a resonance with a number of findings in other reports on high-profile calamities, and this issue merits deep reflection and honest thinking across government and the public sector.
Lord Reid of Cardowan (Lab)
My Lords, as a former Secretary of State for Health, I associate myself completely with the expressions of regret and apology issued by the Prime Minister, the leader of the Opposition and, indeed, my noble friend Lady Primarolo today. As far as compensation is concerned, as Secretary of State I managed to give some financial assistance to those suffering from hep C, but only by reversing a very long-standing policy against huge resistance. It has been noted that civil servants are sometimes unwilling to change. What has not been noted is that one institution in government has the right to prevent such things being done but does not carry responsibility if there is a mistake: the Treasury. I warn the Minister now, if he is here after 5 pm today, that the Treasury will always try to find a way, because it does not recognise moral compulsion—but that should be as important to us as legal liability.
Earl Howe (Con)
My Lords, I am sure that the noble Lord’s words will resonate with anyone in this Chamber who has had the privilege of ministerial responsibility. Having said that, I do not think we should necessarily point the finger solely at the Treasury when it comes to the responsibility that lies at every level of government in this terrible disaster.
Baroness Featherstone (LD)
My Lords, I declare my interest. As this House may know, my nephew, Nick, was a haemophiliac infected with hepatitis C and exposed to CJD and died aged 35, leaving a 10 month-old baby daughter, Niamh. Compensation should be first on the list to alleviate immediate suffering, but can the Minister tell your Lordships’ House whether the Government will seek prosecutions for those who Sir Brian’s report indicates are culpable in this most terrible of tragedies?
Earl Howe (Con)
My Lords, I do not think it is for me as a Minister to opine on potential criminal liability. All I can say at this early stage is that the Government will make all relevant information available to those conducting any future criminal investigation.
Lord Collins of Highbury (Lab)
My Lords, I echo my noble friend’s comments about the awful circumstances and the apology. Yesterday, after the repeat of the Statement, I reassured the Minister that what was required to implement all the recommendations of the report was cross-party working, and that we will continue to do that whatever the circumstances. He gave a commitment about the other 11 recommendations of the report; the Commons were due to debate it on returning from the Recess. I hope that we can keep that firmly on the agenda so that we properly address all the issues that the report raises.
Earl Howe (Con)
I am very grateful to the noble Lord. I am personally keen that we should have that opportunity. I am aware that discussions are ongoing with the usual channels to enable us to have a debate not too far from when we come back from the Recess. Clearly, it is important that these findings be given the most thorough consideration by government. They are very grave indeed. As I said yesterday, the wrongs that have been done are devastating and, in many cases, life altering. A comprehensive response will be given in due course, but that should not prevent us debating the report in the meanwhile.
Lord Kamall (Con)
My noble friend the Minister has said there is more information available on the website for victims and their families. Has his department considered how those who are digitally excluded and not very digitally proficient or able to access digital services can get more information?
Earl Howe (Con)
Yes, indeed. I know that Sir Robert Francis, the interim chair of the shadow compensation authority, has this very much at the top of his agenda in his engagement with the infected blood community.
Infected Blood
Earl Howe Excerpts(6 months, 1 week ago)
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Earl Howe (Con)
My Lords, with the leave of the House, I shall now repeat in succession two Statements delivered earlier in another place. The first was made yesterday by my right honourable friend the Prime Minister. The second was made earlier today by my right honourable friend the Minister for the Cabinet Office. The first Statement, by the Prime Minister, is as follows:
“Mr Speaker, Sir Brian Langstaff has today published the final report of the Infected Blood Inquiry. This is a day of shame for the British state. Today’s report shows a decades-long moral failure at the heart of our national life. From the National Health Service to the Civil Service, to Ministers in successive Governments, at every level the people and institutions in which we place our trust failed in the most harrowing and devastating way. They failed the victims and their families, and they failed this country.
Sir Brian finds a ‘catalogue’ of systemic, collective and individual failures, each on its own serious, and taken together amounting to ‘a calamity’. The result of this inquiry should shake our nation to its core. This should have been avoided. It was known that these treatments were contaminated. Warnings were ignored, repeatedly. Time and again, people in positions of power and trust had the chance to stop the transmission of those infections. Time and again, they failed to do so.
Sir Brian finds ‘an attitude of denial’ towards the risks of treatment. Worse, to our eternal shame, and in a way that is hard even to comprehend, they allowed victims to become ‘objects for research’. Many, including children at Lord Mayor Treloar College, were part of trials, conducted without their or their parents’ knowledge or consent. Those with haemophilia or bleeding disorders were infected with HIV, hepatitis C and hepatitis B through NHS treatment, through blood clotting products such as factor 8, including those who had been misdiagnosed and did not even require treatment. Many were infected through whole blood transfusions. Others were infected through their partners and loved ones, often after diagnoses had been deliberately withheld for months or even years, meaning that these infections should easily have been prevented.
I find it almost impossible to comprehend how it must have felt to be told that you had been infected, through no fault of your own, with HIV, hepatitis B or hepatitis C; or to face the grief of losing a child; or to be a young child and lose your mum or dad. Many of those infected went on to develop horrific conditions, including cirrhosis, liver cancer, pneumonia, TB and AIDS, enduring debilitating treatments, such as interferon, for these illnesses—illnesses the NHS had given them.
Many were treated disdainfully by healthcare professionals, who made appalling assumptions about the origin of their infections. Worse still, they were made to think that they were imagining it. They were made to feel stupid. They felt abandoned by the NHS that had infected them. Those who acquired HIV endured social rejection, vilification and abuse at a time when society understood so little about the emerging epidemic of AIDS. With illness came the indignity of financial hardship, including for carers, those widowed and other bereaved family members.
Throughout it all, victims and their loved ones have had to fight for justice, fight to be heard, fight to be believed and fight to uncover the full truth. Some had their medical records withheld or even destroyed. The inquiry finds that some government papers were destroyed in
‘a deliberate attempt to make the truth more difficult to reveal’.
Sir Brian explicitly asks the question:
‘was there a cover up?’
Let me directly quote his answer for the House: ‘there has been’. He continues:
‘Not in the sense of a handful of people plotting in an orchestrated conspiracy to mislead, but in a way that was more subtle, more pervasive and more chilling in its implications. To save face and to save expense, there has been a hiding of much of the truth’.
More than 3,000 people died without that truth. They died without an apology. They died without knowing how and why this was allowed to happen, and they died without seeing anyone held to account.
Today, I want to speak directly to the victims and their families, some of whom are with us in the Gallery. I want to make a wholehearted and unequivocal apology for this terrible injustice. First, I want to apologise for the failure in blood policy and blood products, and the devastating—and so often fatal—impact this has had on so many lives, including the impact of treatments that were known or proved to be contaminated; the failure to respond to the risk of imported concentrates; the failure to prioritise self-sufficiency in blood; the failure to introduce screening services sooner; and the mismanagement of the response to the emergence of AIDS and hepatitis viruses among infected blood victims.
Secondly, I want to apologise for the repeated failure of the state and our medical professionals to recognise the harm caused. This includes the failure of previous payment schemes, the inadequate levels of funding made available and the failure to recognise hepatitis B victims.
Thirdly, I want to apologise for the institutional refusal to face up to these failings—and, worse, to deny and even attempt to cover them up—the dismissing of reports and campaigners’ detailed representations; the loss and destruction of key documents, including ministerial advice and medical records; and the appalling length of time it took to secure the public inquiry that has delivered the full truth today.
There is layer upon layer of hurt, endured across decades. This is an apology from the state to every single person impacted by this scandal. It did not have to be this way. It should never have been this way. On behalf of this and every Government stretching back to the 1970s, I am truly sorry.
Today is a day for the victims and their families to hear the full truth acknowledged by all and, in the full presence of that truth, to remember the many, many lost loved ones. But justice also demands action and accountability, so I make two solemn promises. First, we will pay comprehensive compensation to those infected and those affected by this scandal, accepting the principles recommended by the inquiry, which builds on the work of Sir Robert Francis. Whatever it costs to deliver this scheme, we will pay it. My right honourable friend the Minister for the Cabinet Office will set out the details tomorrow.
Secondly, it is not enough to say sorry or pay long-overdue compensation and then attempt to move on. There can be no moving on from a report that is so devastating in its criticisms. Of course, in some areas medical practice has long since evolved, and no one is questioning that every day our NHS provides amazing and life-saving care to the British people. But Sir Brian and his team have made wide-ranging recommendations. We will study them in detail before returning to this House with a full response. We must fundamentally rebalance the system so that we finally address this pattern, so familiar from other inquiries such as Hillsborough, where innocent victims have to fight for decades just to be believed.
The whole House will join me in thanking Sir Brian and his team, especially for keeping the infected blood community at the heart of their work. We would not be here today without those who tirelessly fought for justice for so many years. I include journalists and parliamentarians in both Houses, especially the right honourable Member for Kingston upon Hull North, but most of all the victims and their families, many of whom have dedicated their lives to leading charities and campaign groups, pouring their own money into decades of running helplines, archiving, researching and pursuing legal cases, often in the face of appalling prejudice. It is impossible to capture the full pain and injustice that they have faced. Their sorrow has been unimaginable. They have watched loved ones die, cared for them as they suffered excruciating treatments or provided their palliative care. Many families were broken up by the strain. Hundreds of thousands of lives have been knocked off course, dreams and potential unfulfilled.
But today, their voices have finally been heard. The full truth stands for all to see. We will work together across Government, our health services and civil society to ensure that nothing like this can ever happen in our country again. I commend this Statement to the House”.
Baroness Brinton (LD)
My Lords, from these Benches, we echo the apologies made by both the Government and the Labour Benches. We are truly sorry for what has happened. We pay tribute to everyone in the infected blood community. I particularly want to thank those watching us, whether in the Public Gallery here or online. Talking to people at Central Hall yesterday, I discovered that a number of people have watched every single time this House has debated infected blood. We may not see them, but they see us.
From these Benches, we also pay tribute to Sir Brian and his team for a truly remarkable seven-volume report which speaks truth to power for the infected blood community, and we pay tribute to the parliamentarians in both Houses who have fought for justice over the decades, including Dame Diana Johnson, who currently leads them. We also pay tribute to the many charities and organisations who have worked with the IB community, be they infected or affected.
From these Benches, we will continue to hold government to account until everything is resolved. Having said that, we certainly welcome both Statements. We echo the points made from the Labour Front Bench: we believe that there are issues relating to criminal charges for corporate manslaughter and other possible crimes, so can the Minister say whether Sir Brian’s report is being forwarded to the police and the DPP for consideration?
There is one person who is not in her place today, the noble Baroness, Lady Campbell of Surbiton. She was exhausted by yesterday. She is one of the affected people in this House—but not the only one. She told me that she welcomes the government apology; her sorrow is that it took decades of personal hardship and relentless campaigning to arrive. She is delighted by the appointment of Sir Robert Francis KC, as are we; he is someone in whom the IB community has considerable trust. Finally, she said that she wants to listen hard to the community responses over the coming weeks to the events of yesterday and today in respect of the compensation intentions. Everyone will need time to process the inquiry’s findings. She and many others are completely exhausted, and that is why she is unable to be with us tonight.
Today’s compensation Statement sets out much welcome detail. As the Minister knows, from these Benches we welcome the establishment of the arm’s-length IB compensation authority, the announcement that Sir Robert Francis is the interim chair and the clarity about who is eligible, especially the inclusion of those affected, not just infected. We also welcome the different categories of tariff. Ministers have heard repeatedly in both Houses that it is vital to recognise how people’s lives have been affected in so many ways.
However, the Statement also raises some questions that are not quite so clear. First, have the Government understood that people with lived experience of infected blood must be represented at all levels on the IBCA, including the board? Both Statements were silent on that, so I wonder what guidance Ministers will give Sir Robert on involving people with lived experience.
Secondly, the Statement confirms that anyone already registered with one of the existing support schemes will automatically be considered for compensation under the new scheme. But what about those we have discussed repeatedly in debates on the Victims and Prisoners Bill: those who are known about but whose claims have not yet been recognised and therefore are not registered? The Statement yesterday talked about documents going missing and even being destroyed. I have heard today from a victim who says that her claims, made over five years ago, are stuck because the NHS has lost two or three key pages from her records, so she cannot move forward. Can the Minister say what will happen to cases such as hers? She asked, “How can we fight a machine that is still protecting itself?”
There is a second group of people who are harder to reach, as they have not yet been identified; they may have only just become aware that they are infected with hepatitis. What arrangements will there be for them? Not only are they outside the timetable for the main compensation scheme, given what the Minister said, but they appear not to be referred to under the interim scheme arrangements as announced. What is the timescale for each of those two groups? The Minister knows about them, because we have talked about them before, so it is no surprise to him that they remain concerned about their position.
It is also good to see that those receiving compensation will be disregarded from means-tested benefits assessments, but I return to my old question: can the Minister confirm that there will be no clawing back of past benefits as new compensation payments are made? That was not at all clear in the Statement.
The Statement outlines support schemes especially for widows and how they will fit into the new scheme. I thank the Minister for making sure that they will not lose out. We look forward to seeing the details of the scheme.
Finally, the increase in the interim scheme payments of a further £200,000 is welcome. As with the main scheme, what are the proposals and timescales for ensuring that those not yet registered will get speedy support, registration and payments? That is not mentioned, either, in the timetable.
Sir Brian’s report is a wake-up call to government, including the Civil Service, the NHS and the Department of Health and Social Care, and to Parliament. We must give thanks to all who have relentlessly spoken up from the community, the press and the media and in Parliament; but for them, we would not be here today. Only through fulfilling Sir Brian’s recommendations —all of them—will there be vindication for the victims and corporate and state changes in culture in the future. We must all ensure that we never have to face a scandal like this again.
Earl Howe (Con)
My Lords, I am grateful to the noble Lord, Lord Collins, and noble Baroness, Lady Brinton, for their supportive comments. I agree with the noble Lord, Lord Collins, that if ever a cross-party approach was warranted, it is now. I have no doubt that, going forward, his party, as well as mine, will wish to see justice fully done in the way that we—I hope—are agreed on.
Lessons must indeed be learned. The Prime Minister’s Statement yesterday expressed the shock and shame that all right-thinking people will feel in response to Sir Brian Langstaff’s report, the implications of which are profound. It is important that the Government take time to digest fully the gravity of its findings. The wrongs that have been done are devastating and life-altering for so many individuals, so ensuring that nothing like this can happen again is a priority. We will provide a comprehensive response in due course.
A number of questions were raised by both the noble Lord and the noble Baroness. First, the noble Lord, Lord Collins, asked about a debate in the House of Lords. I know that this proposal is currently under active consideration by the usual channels, and I would personally welcome such a debate.
Secondly, both the noble Lord and the noble Baroness asked me about the possibility of criminal charges and whether relevant evidence would be made available in such circumstances. I can certainly give that assurance, but it is a little early to say whether the report will be sent to the police or the Director of Public Prosecutions. We will consider the report in depth over the coming days and weeks, and it is no part of the Government’s wish to stand in the way of justice being done across the piece.
I am delighted that Sir Robert Francis has been welcomed as the interim chair of the compensation authority. He is trusted by the community, and I know that he wishes to work very closely with representatives of the community on both the way that the scheme as proposed is validated and the way that the compensation authority is established and is working. In other words, the provision that we have made in the Victims and Prisoners Bill for committees and sub-committees to be set up within the compensation authority will allow Sir Robert to populate those committees as he wishes, and as he is asked to do, with representatives of the infected and affected communities. I have little doubt that there will be arrangements at board level to ensure that the views of those committees and sub-committees are reflected in the board’s considerations going forward.
The noble Baroness asked whether there would be any clawing back of past benefits. I can assure her that there will not be.
As regards those who are not known about and who may feel that they have a claim—some, perhaps, lacking the evidence to prove a claim—we will address situations of that kind in the guidance that comes forward, and provide a means for those people on a page of GOV.UK to feed in their interest and their claim to entitlement in as simple a way as possible. The application scheme that we are setting up will be electronic; the aim is to make it as simple and as user-friendly as possible. Support will be provided for those who need it, and I will be happy to write to the noble Baroness with more specific details of how different groups of people will be able to access the compensation authority in due course.
Baroness Meacher (CB)
My Lords, I will say just a few words from these Benches—we are a little depleted this evening. I strongly support the words of the noble Lord, Lord Collins, and the noble Baroness, Lady Brinton. They were very constructive and helpful. I also want to say how much I personally appreciate the fact that the noble Earl, Lord Howe, is responsible for this area of work. We are incredibly lucky to have such a committed and devoted Minister who, I feel absolutely confident, will pursue this and ensure that the compensation is properly provided to the people who so desperately need it. The noble Earl will, I know, collaborate; he had a very good meeting with a small number of us and it was very clear that he will welcome continued collaboration, and I certainly look forward to that. I give a special welcome to the Front Bench for the noble Earl, Lord Howe.
Earl Howe (Con)
I am, as ever, very grateful to the noble Baroness, Lady Meacher, for her kind words. I can assure her that it has been a privilege for me to be involved as a House of Lords Minister in working through these proposals and to be standing here today to announce them. I am more than ready to continue that work as we fashion the compensation scheme, together with Sir Robert Francis and those impacted by this scandal.
Lord Lansley (Con)
My Lords, as a former Secretary of State for Health, I very much share the sense of failure that was forcefully expressed by the Prime Minister in the other place yesterday. From my personal point of view, I want to say how deeply sorry I am for the pain and misery that so many of the victims and their families have experienced.
I remind my noble friend that that is exactly the same expression of regret that I made in another place on 10 January 2011, and which my noble friend at this Dispatch Box repeated on the same day. At that time, as my noble friend will recall, we had conducted a review over some months, following Lord Archer of Sandwell’s independent inquiry. We believed, on the basis of the ministerial review of Anne Milton, the Member of Parliament for Guildford, that we were substantially meeting—and enhancing—the level of support payment for relief that would be provided to victims and their families and meeting many of their needs. Clearly, it was inadequate, and the Prime Minister has expressed that view.
Can my noble friend say whether the Government will now focus very hard on the question of why I, he, our ministerial colleagues, and other Ministers and other Secretaries of State—I heard Andy Burnham say more or less exactly the same thing yesterday—believed that we were doing what was needed and what was right at that time but did not share the view that we needed to make compensation payments on the scale of those that were made in Ireland because we did not share the same liability as had been accepted in Ireland?
That was clearly not true. Ministers were repeatedly advised that something was true which was not true. That is not to absolve us, because we take responsibility as Secretaries of State for our departments and for what has been done or has failed to be done during our time in office, and collectively we must accept that responsibility. However, this must be a case of never letting the scale of that failure within government be repeated in the future in any other circumstances. I hope that my noble friend can say that that internal examination, based on the inquiry, will be proceeding forthwith.
Earl Howe (Con)
I am grateful to my noble friend and well remember the Statement that he refers to, which I repeated in this House in January 2011. He is exactly right. Both he and I were advised at the time that there was no comparability between the situations in the Republic of Ireland and the United Kingdom—that they were entirely different. That was not true, but it was the advice that we received. We did as much as we could, I am sure my noble friend will agree, to honour the spirit of the late Lord Archer’s report, which was at the time a very thorough piece of work, although he did not have access to all the evidence, as we now are aware. So it does raise the question of how successive Secretaries of State for Health in the Labour Government, the coalition Government and no doubt beyond were advised in the way that they were by officials. This is a question that merits the closest scrutiny and I undertake that that will be done.
Baroness Featherstone (LD)
I was not going to speak, because I find it very emotional. For anyone in this Chamber who does not know, my nephew died aged 35. He was a haemophiliac. He was infected with hepatitis C and exposed to CJD. He left a 10 month-old daughter. But I wanted to put on the record my admiration and heartfelt thanks to Sir Brian Langstaff. It was an absolute miracle that he chaired this inquiry, because he did not hold his punches yesterday, did he?
I also want to put on record my thanks to Theresa May, whom I worked with in the Home Office and whose ear I bent regularly. She was the first politician to do things right by commissioning this inquiry. Although it has taken five years and has been agonising for all those people—including my sister, who lost her son and now has Alzheimer’s—yesterday felt at last like a day of reckoning when justice was finally done. She campaigned for 40 years for that day, against all the odds. She was treated by civil servants and Ministers as if she was dirt on their shoes, quite frankly. I cannot even begin to express it.
There is so much that I would like to say, but, as this is meant to be questions, I will just say that I had evidence. I met Sir Chris Wormald. He lied to my face then apologised in writing afterwards. This was all given in evidence to the inquiry. Yes, all the things that the Minister has said will be done must be done, but there are so many of these situations. Denial and cover-up seem to be systematic, whether it is Grenfell, Bloody Sunday, Hillsborough or any of those things. This duty of candour has to really mean “never again”. I am sick and tired of hearing “never again” after all these inquiries. If it is not “never again”, there will be some recompense to those who were affected but it will not change anything. In this country, when it feels like everything is going to hell, this is an opportunity to perhaps turn it around and make sure that we become the good, honest Government and citizens that we always should have been.
Earl Howe (Con)
My Lords, I very much identify with the remarks of the noble Baroness and extend my personal sympathy to her with regard to the death of her nephew.
She referred to the duty of candour. It is perhaps not surprising that Sir Brian Langstaff has made such a recommendation. We need to think about it very carefully. As the noble Baroness will know, this House passed an amendment, proposed by the party opposite, to consider a duty of candour as part of the Victims and Prisoners Bill. I am still not sure that Bill is the right place for it; I think we need to take a longer run at this issue in the light of the full dimensions of Sir Brian’s recommendations.
However, it is not an issue that is going away. Nothing can ever compensate those who have lost loved ones or had their lives ruined by this terrible disaster. However, we can create a scheme that delivers monetary compensation speedily, efficiently and accessibly, in a way that is consistent with the proper management of public funds. Above all, the scheme must treat people with the kind of respect, dignity and compassion that the noble Baroness says was singularly absent along the way for those who required help and support.
These are basic rights which too often people impacted by the scandal have been denied. They need to feel that there is a system there to support them that is collaborative, sympathetic, user-friendly and as free of stress as possible. I know that that is the aim that Sir Robert Francis has at the top of his mind as well.
Baroness Finn (Con)
My Lords, Sir Brian’s report highlighted within government a culture of evasion, chicanery and half-truths that has perpetuated the anguish of victims and relatives for decades. I was particularly disturbed to read in volume seven of Sir Brian's report his conclusions on the destruction of several key documents by civil servants that were central to both his inquiry and earlier civil litigation before the courts. He found that it was,
“more likely than not that the authorisation to destroy the files was because the documents contained material dealing with delays in the UK to the introduction of the screening of blood donations for Hepatitis C, which was anticipated (or known) to be a live issue at the time. If this is right, it was a deliberate attempt to make the truth more difficult to reveal”.
Does the Minister agree, first, that it is to be condemned that civil servants sought to destroy evidence that potentially hid their own complicity in events; secondly, that it is disturbing that not a single official has been able to recall who gave the order to destroy these documents, or why; and, thirdly, that it is a great shame on the Civil Service that not a single individual has been held accountable for destroying evidence in this way?
Earl Howe (Con)
My Lords, I share my noble friend’s profound disquiet and shock at some of the facts that Sir Brian Langstaff has uncovered—not only as regards the actions of civil servants but also his exposé of moral failings on the part of individuals and institutions at every level of our system of government. These failings, and in some cases cover-ups, over decades raise profound questions about how in the future we can ensure integrity, honesty and transparency in the business of government—as the Civil Service Code and the Ministerial Code currently require.
The recommendations that Sir Brian Langstaff has made, particularly in the area of learning lessons and ending what he called the “defensive culture” of the Civil Service, will receive the most serious consideration across government and we will publish a comprehensive response to all his findings in due course.
Baroness Finlay of Llandaff (CB)
My Lords, my own profession is covered in shame with the findings in this report. The noble Baroness, Lady Campbell of Surbiton, should really be with us tonight. She went through everything with her first husband, who died; I remember his funeral well and the whole story was a tragedy. There will be recommendations that affect clinicians, as well, coming out of this. The Prime Minister’s Statement says:
“Of course, in some areas medical practice has long since evolved”.
I wish it was in every area of practice. To hear that people have been treated with disdain is frankly shameful.
I know there is a review by the Department of Health and Social Care going on at the moment. The review is taking evidence—it is on the website—on the duty of candour. I hope that that will be looked at very carefully, particularly in the light of the report. In terms of records, we have heard about Civil Service records but also patient records being lost, with patients being unable to access their own records and having to go through complex processes even today. That is something that at a personal level I feel needs to be considered as well, in order that people can access information.
I would like to ask the Minister what plans there are to work with the professional bodies to ensure that the findings here mean that there is proper candour, that whistleblowers are empowered to say what they need to say, that open conversations do occur over diagnosis and where people want access to the records, and that it is recognised that clinical studies do not need more regulation on top of them but need to be freed up to be really open and honest, because we move things forward in medicine through clinical studies and it would be really sad if the concept of trials fell into disrepute because there has been disrepute in the past and because things have been badly conducted. Some aspects, particularly of medical research, have changed and improved, but it is essential that people benefit from better care.
I know that my noble friend Lady Campbell of Surbiton welcomes the appointment of Sir Robert Francis, whose background and experience are exemplary. On behalf of her and the rest of your Lordships, I thank the noble Earl, Lord Howe, for keeping his door constantly open, seeing every one of us and managing people with great compassion.
Earl Howe (Con)
I am grateful to the noble Baroness for those remarks, and I associate myself with all that she said about the noble Baroness, Lady Campbell of Surbiton. She, of all our colleagues, has been personally affected by this awful scandal, and has lost a husband in the course of it. I am by no means alone in having enormous admiration for her. Although I well understand why she cannot be with us today, following an exhausting day yesterday, we are all sorry not to see her.
The noble Baroness, Lady Finlay, was right to express a view about how we should not inadvertently turn off the tap on innovation and medical advances in the health service by adopting an overly risk-averse approach. That would be the wrong thing to do. At the same time, it is fair to remind ourselves that, since the 1990s, there have been huge changes in the way that the NHS is regulated and the checks and balances that exist for clinical trials and the like.
Certainly, our blood supply is now one of the safest in the world. Over the last decade, the Government and system partners have delivered major initiatives to advance patient safety across the NHS. They include the patient safety strategy and the Patient Safety Commissioner —thanks to my noble friend Lady Cumberlege. The NHS is subject to greater oversight and regulation today—some have said that it is perhaps excessive, but I do not agree—but with a modern focus on patient safety and on evidence-based medicine, with a constitution brought in by the last Labour Government that sets out the rights of all of us to care and to treatment free of charge.
While I am the first to echo the guilt expressed by the Prime Minister yesterday, I think that we can look forward to a period of greater transparency and openness and greater patient safety in the light of the changes that have been made in recent years.
Victims and Prisoners Bill
Earl Howe ExcerptsTuesday 30th April 2024
(6 months, 4 weeks ago)
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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.
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.
Infected Blood Inquiry
Earl Howe Excerpts(7 months ago)
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Baroness Chapman of Darlington (Lab)
My Lords, as a result of this scandal, two people die on average each week. It now seems that children, even babies, were experimented on in the 70s and 80s without their parents’ consent. As my right honourable friend Diana Johnson said yesterday:
“These disturbing revelations raise serious criminal and ethical issues for the NHS and the medical profession”.—[Official Report, Commons, 23/4/24; col. 802.]
Last week, the Government laid amendments to the Victims and Prisoners Bill after the Commons forced the Government to act, but we were disappointed to see that the Government are attempting to wriggle out of the three-month time commitment to introduce a mechanism for compensation payments to be made. My noble friend Lord Ponsonby has tabled an amendment that would reinstate the commitment to act within three months. This will be considered next week. Will the Government accept the amendment?
The Government accept the moral case for compensation, so can the Minister confirm what progress has been made on setting up the basis for a compensation scheme for those infected by contaminated blood and whether the Government will respond to every recommendation in the Infected Blood Inquiry report? How long after publication will the Government publish their full response to the recommendations? What preparatory work is being done by the Treasury on this issue, and will the Minister commit to making this publicly available?
We learned this morning of the sad passing of our loved and respected friend Lord Field of Birkenhead, a steadfast champion for justice on this and many other issues. I can do no better this afternoon than to consider Frank’s words. In his statement to the inquiry, he said:
“I do not know how to value the life of someone lost due to Factor 8, but I know that it is worth more than £20,000.”
He said this with reference to a meeting that he led in 1989. This has gone on for far too long. The time to act, as Frank said, has now long passed.
Earl Howe (Con)
My Lords, the story of infected blood is one of unimaginable suffering, inflicted on thousands of individuals and families over decades. It is undoubtedly an unparalleled tragedy in the history of the NHS.
I pay tribute to the late Lord Field for all the work he did in championing the cause of so many people who required justice in one form or another. The Government are determined to deliver justice to the victims as swiftly as we can. The Infected Blood Inquiry’s final report will be published within a month, on 20 May. We will update Parliament through an Oral Statement on next steps as soon as possible thereafter. Meanwhile, as the noble Baroness has said, the Government have tabled amendments to the Victims and Prisoners Bill, which we will debate next week. They are designed to deliver on the Government’s commitment to pay compensation and will set up the legal framework to do that.
Baroness Brinton (LD)
My Lords, from the Liberal Democrat Benches we also pay tribute to Lord Field, who campaigned actively for infected blood victims from 1989. As with Lord Cormack, he will be greatly missed by the infected blood community.
Yesterday, Dame Diana Johnson rightly highlighted the appalling experiments which were carried out on an estimated 380 children. In particular, the parents of the children at Lord Mayor Treloar school were not even aware that their children were part of a research study. This was first highlighted by “World in Action” in 1975. Caroline Wheeler and the Sunday Times have campaigned rigorously on this for the last three decades, and to continue to remind people. It appears that the Government need reminding yet again that this is long overdue. I too have laid amendments to the Victims and Prisoners Bill for next week’s debate. The deadline for the compensation scheme is important, but victims need mandatory provision of support and legal advice. Interim payments are needed for those who have not yet received them: for those who are known about, within three months; for those who may not be confirmed, as soon after as possible.
Finally, we thank the Government for setting up the arrangements for the compensation body, but we hope that a High Court judge and a shadow board will also be appointed within three months.
Earl Howe (Con)
As the noble Baroness rightly says, it has been known for many years that many dozens of children with haemophilia at Treloar school in Hampshire were infected with HIV and hepatitis C in the 1980s through contaminated blood products. We are acutely aware of the distress and suffering of those individuals and of the bereaved families of those who have died. We expect Sir Brian Langstaff’s report to reveal the full circumstances of how this appalling tragedy came about.
The Government’s aim is to deliver compensation to those eligible as speedily as possible. Government amendments to the Victims and Prisoners Bill are designed to do this. One particular amendment will set up an arm’s-length body to deliver the compensation scheme, as recommended by Sir Brian. It will provide for interim payments to a particular group who have so far received no compensation, and for early commencement of the ALB and the interim payments. The ALB will be set up straightaway in shadow form, led by an interim chief executive, so that the practical work for delivering compensation can begin as soon as possible.
Viscount Hailsham (Con)
My Lords, in noting what my noble friend the Minister said, on the matter of compensation, I am sure he will agree that those who received inflected blood products, or their estates if they are deceased, should receive early compensation. That also applies to dependants who can establish clear financial loss. Beyond that, should we not be a bit cautious about compensation? Otherwise, the bill will be colossal.
Earl Howe (Con)
My noble friend is quite right to highlight what is likely to be a very significant impact on the public finances as a result of compensation in this area. It is important that any decisions on compensation funding are taken carefully. I think the House would expect the Government to work through the associated costs to the public sector while considering the needs of members of the community and the very far-reaching impacts this scandal has had on their lives.
Baroness Campbell of Surbiton (CB)
My Lords, I am sure the Minister appreciates the deep mistrust the community has regarding this Government. It has, for 40 years, struggled to have its voice heard and its needs met. Bearing this in mind, could he expand on the ways the Government intend to involve the community from here forward in all the developments? As there has frequently been such mistrust, we owe it to the community to involve it at every stage of the way.
Earl Howe (Con)
My Lords, I fully recognise the point that the noble Baroness has just made. My right honourable friend the Minister for the Cabinet Office is preparing to engage with members of the infected and affected communities at the beginning of May in a succession of meetings. Further than that, we agree that it is critical for those infected and affected to have a role in the infected blood compensation authority itself. We intend to utilise the provision for committees and sub-committees to make sure that the community is represented on these groups. It is right that the exact committees and board make-up is defined once the shadow body is established, with the input of the infected blood community. The message I would give is that we want to work collaboratively with stakeholders to achieve the right outcome.
Lord Turnberg (Lab)
My Lords, this has been an unimaginable tragedy, and we must move to compensate those who have been affected by it as quickly and as well as we can. One part of it is worth thinking about, which is trying to ascribe malign intent to those who were involved in giving this product in the hope that it would stop the bleeding and potential death of children. That was the intent in using factor 8 at the time. It had tragic consequences and many mistakes were made, but we must not assume malign intent on the part of the people involved.
Earl Howe (Con)
The noble Lord makes a very good point. For me to comment further would be wrong. What we need to do is wait for Sir Brian Langstaff’s final report on 20 May, which should, we expect, reveal some of the underlying facts that the noble Lord alluded to.
Victims and Prisoners Bill
Earl Howe ExcerptsMonday 25th March 2024
(8 months ago)
Lords ChamberRead Full debate Victims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 31-VIII Eighth marshalled list for Committee - (21 Mar 2024)
Lord Ponsonby of Shulbrede (Lab)
My Lords, it has been a short and interesting debate. The noble Baroness, Lady Lawlor, introduced the amendment from the noble Lord, Lord Jackson. On this side of the House, we will listen to the Minister’s response very carefully. I agreed with the sentiments that she expressed to the extent that the Parole Board should be cautious and fair, and that there needs to be a balance between victims, the process and the prisoners.
The point where I depart from her—which is really the substance of her amendment—is that it should be by default that parole hearings are conducted in public. I am not sure that I would go as far as that but, nevertheless, I agreed with a lot the points that she made. As I said, I look forward to the Minister’s response.
I move on to Amendment 171B in the name of the noble Lord, Lord Marks, which was spoken to by the noble Lord, Lord German. I think the noble Baroness, Lady Prashar, summed up the points succinctly: that giving the Parole Board discretion is desirable. Each case is different and, if the Parole Board has more discretion, it can reduce the potential impact on victims—I understood that point. It can also reduce the number of repeated applications, which have a cost to the public purse, where there may be no real change in circumstances. If one were to give the Parole Board more discretion, it might reduce that impact on victims. Again, this is an interesting amendment, and I look forward to listening to the Minister’s response.
Earl Howe (Con)
My Lords, in their respective absences, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, and my noble friend Lord Jackson for their amendments, which have been so ably spoken to by my noble friend Lady Lawlor and the noble Lord, Lord German.
I will turn first to Amendment 174A, tabled by my noble friend Lord Jackson. This would create a presumption for parole hearings to be conducted in public and a power for the Secretary of State, in effect, to direct a public hearing, contrary to any opposing view from the chair of the Parole Board.
The provision for public parole hearings was introduced by the Government in 2022 in amendments to the Parole Board Rules statutory instrument. This allows any hearing to be conducted in public if the chair of the Parole Board decides that it is in the interests of justice to do so. Prior to this, the rules required that all hearings be held in private.
Hearings are private by default, but applications for public hearings can be made by anyone directly to the Parole Board. The criteria used by the chair to decide applications have been published by the Parole Board on its website. The individual decisions are also published. Since the provisions were introduced in 2022, three public hearings have been held and a further five have been agreed by the Parole Board, which will be heard in the coming months.
The provisions are operating as intended, because the rule changes were made with the understanding that most hearings would continue to be held in private and only a small number of public hearings would be held. This amendment would, in effect, reverse that position, so that all hearings were public by default and a private hearing would take place only with the agreement of the Secretary of State in response to any representations made by the chair of the board.
The amendment also proposes that the Secretary of State should be the person to decide whether a hearing takes place in public. I am afraid I must push back on that idea. Noble Lords will be aware that the board is a quasi-judicial body which makes court-like judicial decisions. As part of its consideration of case, the board will decide whether an oral hearing is necessary or whether a case can be completed on the papers alone. If, having decided that a hearing is necessary, the board is then responsible for the arrangements, conduct and management of that hearing.
It would be out of step with the rest of the process if we gave the Secretary of State a power, in effect, to force the board to hold a public hearing against its wishes. As the body responsible for the hearing, the Government believe that it is right that the board has the final decision on whether the hearing should be public or private.
I hope the Committee will accept that not all cases will be suitable to be heard in public; for example, because of particularly sensitive evidence or the concerns of the victims. It is vital that the risk assessment is not compromised, and witnesses are able to provide full and frank evidence to the board.
The current provisions in the Parole Board Rules mean that the board and the Secretary of State have to consider these issues only in response to an application. The amendment would require them to consider the merits and contact the victims in every single hearing—more than 8,000 cases a year. It would be an enormous administrative burden with very little obvious benefit to the parole system or to the individuals affected by it.
In conclusion, I recognise the disappointment and frustration that may be caused when a public hearing application is rejected, especially where the victim is the applicant. Public hearings are a comparatively new element of the parole system. The Government are committed to improving further the openness and transparency of parole. However, we submit that a complete reversal of the current approach is not merited at this time. On this basis, I hope that Amendment 171A can be withdrawn.
I turn to Amendment 171B, tabled by the noble Lord, Lord Marks of Henley-on-Thames, and spoken to by the noble Lord, Lord German. This seeks to allow the Parole Board to direct the period of time which should elapse before a subsequent application to be considered for release can be made. As things stand, under the Crime (Sentences) Act 1997, the Secretary of State has ultimate responsibility for referring a prisoner’s case to the Parole Board within two years of the previous review.
This amendment would transfer this responsibility to the board and allow them to set the interval between reviews of anywhere between 12 months and five years. The current system already provides for flexibility in the time set for the prisoner’s next parole review. His Majesty’s Prison and Probation Service—HMPPS—considers a range of factors in deciding when to refer the prisoner to the Parole Board on behalf of the Secretary of State. Reasons must be given for the length of the interval between reviews. These include the Parole Board’s reasons for declining to direct the prisoner’s release at the conclusion of the last review and the interventions required to allow them to progress.
Giving responsibility for setting the period between parole reviews to the Parole Board could potentially result in hearings being set too soon, before interventions have been able to take effect, increasing the number of adjournments and causing further distress for victims. This is not to say that the board does not play an important role. Its insights provide valuable information for HMPPS staff, but HMPPS is best placed to make these decisions.
There is then the question of what the period between hearings ought to be. This amendment aims to increase the maximum interval from two to five years. I fully understand why this is being proposed, but it might be helpful if I outline why it would not be lawful; the noble Baroness, Lady Prashar, has already referred to this. Where indeterminate sentence prisoners have served their tariff—that is the minimum term set by the judge at sentencing—they are then eligible for a parole hearing. Unless the Parole Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined, they will remain in prison. If they are not released, my advice is that subsequent reviews must be conducted speedily and at reasonable intervals to satisfy the requirement of Article 5(4) of the convention. I note and take on board the comments of the noble Baroness, Lady Prashar, in this connection.
I appreciate the motivations at play here. Parole reviews can be difficult for victims. I sympathise with the desire for a longer interval between reviews. I stress to the Committee that the Government always consider victims where the parole system is concerned. I hope we have demonstrated this principle in other measures we have taken. We understand the points raised by the noble Lord, Lord German, that, in essence, greater transparency of the parole system is inextricably linked to the involvement of victims.
Since October 2022, victims have been able to observe Parole Board hearings, as part of a testing phase currently running in the south-west. The testing has now progressed to include the Greater Manchester probation region. During the hearings, victims are supported by a Probation Service victim representative, who discusses the parole process with them. Their VLO will ensure that, if appropriate, they are signposted to relevant support following the hearing.
Business of the House
Earl Howe Excerpts(8 months, 1 week ago)
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Earl Howe
That Standing Order 44 (No two stages of a Bill to be taken on one day) be dispensed with on Tuesday 19 March to enable the National Insurance Contributions (Reduction in Rates) (No. 2) Bill to be taken through its remaining stages that day and that, in accordance with Standing Order 47 (Amendments on Third Reading), amendments shall not be moved on Third Reading.
Earl Howe (Con)
My Lords, on behalf of my noble friend the Lord Privy Seal, I beg to move the second Motion standing in his name on the Order Paper. It may assist the House if I set out the plan for this Bill agreed in the usual channels.
The Bill’s Second Reading will take place today, with the debate in the name of my noble friend Lady Vere on the Spring Budget. Noble Lords have until 11 am tomorrow, Tuesday 19 March, to table amendments for Committee on the Bill, and should approach the Public Bill Office in the usual way. Committee and all remaining stages will take place tomorrow. If there is a need to have further substantive stages after Committee, these will be announced in the Chamber in the usual way.
Business of the House
Earl Howe Excerpts(8 months, 1 week ago)
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Earl Howe
That, in the event of the Supply and Appropriation (Anticipation and Adjustments) Bill having been brought from the House of Commons, Standing Order 44 (No two stages of a Bill to be taken on one day) be dispensed with on Tuesday 19 March to allow the Bill to be taken through its remaining stages that day.
Earl Howe (Con)
My Lords, on behalf of my noble friend the Lord Privy Seal, I beg to move the first Motion standing in his name on the Order Paper.
Victims and Prisoners Bill
Earl Howe ExcerptsMonday 26th February 2024
(9 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, this group of probing amendments, which have the aim of ensuring decent and necessary payments to all those bereaved in this disastrous scandal, has given the Committee the chance to consider the appalling plight of the victims of the infected blood scandal.
We welcome Clause 40, in particular Clause 40(3)(a), which says that:
“In exercising its functions, the body must … have regard to the need of applicants for speed of provision, simplicity of process, accessibility, involvement, proactive support, fairness and efficiency”.
It is only to be hoped that the Government live up to the promise of that clause in future, because they have signally failed to do so in the past.
If this Bill has taught us anything, it is that all victims of crime, major incidents and appalling and deeply shocking medical errors such as this, as well as other administrative disasters such as the Post Office Horizon scandal, have so many needs that resemble each other. We need early admissions of responsibility and culpability. We need government and administrative bodies to face facts. We need to ensure that victims have early access to the services and support they need and that such services and support are in practice provided in full and in good time.
Of course, one of the tragic aspects of this scandal is that the need for speed is particularly severe. It is worth reminding ourselves that, since Sir Brian Langstaff’s interim report of April 2023, more than 70 victims have died. The noble Lord, Lord Bichard, gave evidence to that inquiry, as did the noble Lord, Lord Owen. Both spoke eloquently of its conduct, and it is worth remembering the conclusion of the noble Lord, Lord Bichard, that the state let people down and should accept responsibility. He spoke of defending the indefensible, and the noble Lord, Lord Horam, echoed his words. Delaying compensation is denying responsibility. As all noble Lords who have spoken have said, there is no reason at all to wait any longer—certainly not until the Government have digested at length the contents of Sir Brian’s final report. Any such delay would be a travesty of Sir Brian’s principal call, which was for urgency.
Sir Robert Francis’s recommendations, in his report in June 2022, on the way that compensation should be handled, along with Sir Brian’s report, now need urgent implementation. It is to be hoped that the work of the expert panel—established under the chairmanship of Jonathan Montgomery, who is the chair of Oxford University Hospitals NHS Trust, which was not a mile away from involvement in the crisis—does not delay or water down the recommendations of the two reports. It is right to say that the campaigners are deeply concerned, as the noble Baroness, Lady Campbell, stressed.
In opening the debate, my noble friend Lady Brinton and the noble Lord, Lord Owen, pointed out the strength and determination of this very long campaign. We mourn Lord Cormack, whose involvement in the campaign was also extensive and long lasting.
The noble Lord, Lord Owen, spoke of the difficulties facing doctors, and the lack of political will needed to ensure self-sufficiency in blood products in this country. We can only hope that the noble Lord’s optimism in expecting the Government now to react quickly and finally, following the report due in May from Sir Brian Langstaff, is justified. My noble friend Lady Featherstone and the noble Baroness, Lady Campbell, added their accounts of personal tragedy, and thereby movingly added to the demand for urgency.
We know that the Horizon case led to definitive action only following ITV’s television drama. It should not be the same with the infected blood scandal, but we understand that ITV has commissioned Peter Moffat to write such a drama, so perhaps public opinion will come to the rescue once again. The burden of my speech, and the speeches of all noble Lords who have spoken today, is that this should not be necessary in a civilised and compassionate democracy.
Earl Howe (Con)
My Lords, in arriving, as we now have, at Part 3 of the Bill, I should like to begin by thanking all noble Lords who have spoken so powerfully and movingly on a set of events which many regard as constituting the worst disaster in the history of the National Health Service. The story of those who received infected blood as part of their NHS care and treatment is one of unimaginable suffering and terrible tragedy over more than four decades. It is a story that is still not yet over. The victims’ suffering has been made even worse by an absence of full justice for those individuals and, alongside that, a failure to reach—as far as may be possible—a sense of closure.
The official public inquiry currently under way, under the chairmanship of Sir Brian Langstaff, is the start of delivering the justice that is needed. The inquiry has been informed by the expert work of Sir Robert Francis, and Sir Brian has so far published two interim reports on his findings, with his final report due on 20 May. Meanwhile, in the other place, Clause 40—as it is now—was added to the Bill to speed up the delivery process.
The Government accept the will of Parliament that arrangements should be put in place to ensure, as far as reasonably practicable, that the victims receive justice as quickly and efficiently as possible. Therefore, my desire—and, I trust, that of all noble Lords—is to see the Bill added to the statute book as soon as is reasonably practicable. The Government are well aware that every passing season sees more suffering, death and bereavement. We are therefore eager to avoid more needless delay.
Ministers have already taken action and given a number of undertakings. First, we have promised that within 25 sitting days of Sir Brian Langstaff’s final report being published, we will make a Statement to Parliament setting out the Government’s response. The period of 25 days is not a target but a deadline. We will issue our response as soon as we possibly can.
Secondly, in response to a recommendation from Sir Brian, we have made interim payments amounting to £440 million to infected individuals or bereaved partners registered with existing infected blood support schemes.
Thirdly, in readiness for Sir Brian’s final report, we have appointed Sir Jonathan Montgomery to chair an expert group whose remit is to advise the Government on some of the legal and technical aspects of delivering compensation. I realise that some have questioned Sir Jonathan’s appointment because of his former connection with Bayer. Noble Lords may wish to note that Sir Jonathan ceased to be a member of the Bayer bioethics council on 31 October 2023. The council was an independent advisory group which had no role in the day-to-day operations of the company. It has had no executive power in the operational business of Bayer.
I emphasise that nothing in the work of the expert group is intended to cut across the conclusions of the inquiry or the advice of Sir Robert Francis—quite the opposite, actually. The expert group is there to enable Ministers to understand certain technical issues and thus enable decisions to be taken more quickly.
On the amendment passed by the House of Commons, which we are now considering, noble Lords will understand that the provisions of any Bill need to be legally coherent and should not cut across the integrity of the statute book. There are two principal defects with Clause 40: first, its coverage does not extend to the whole of the United Kingdom. The Government are clear that infected blood is a UK-wide issue. For that very reason, the infected blood inquiry was set up on a UK-wide basis. In March 2021, we announced uplifts to achieve broad financial parity across the UK’s infected blood support schemes, increasing annual payments to beneficiaries across the country as a whole. Maintaining a commitment to parity across the UK is extremely important.
We also need to agree on a set of arrangements that are workable and, above all, work for victims. It is therefore essential for the UK Government to engage with all the devolved Administrations with those aims in view. That is what we are now doing. My right honourable friend the Minister for the Cabinet Office met counterparts from the Welsh Government, Scottish Government and Northern Ireland Executive earlier this month to discuss this matter; those discussions will continue.
The second principal defect of Clause 40 is that in proposing the establishment of an arm’s-length body, as Sir Brian recommended, it does not also propose any specific functions for that body. The Government’s intention, therefore, is to bring forward an amendment on Report which will correct these two deficiencies and add further standard provisions to ensure a more complete legal framework when setting up an ALB. I plan to engage with noble Lords in advance of Report to discuss the content of the government amendment once it has been drafted.
Lord Marks of Henley-on-Thames (LD)
The Minister mentioned that there will be government amendments on Report to address the deficiencies in Clause 40 that he has identified. Does he envisage having the opportunity, between now and Report, to prepare amendments to address some of the other legal impediments—for example, to widening the cohorts—that he has identified? That could accelerate clarification and speed up the process.
Earl Howe (Con)
I anticipate using every opportunity available to engage with noble Lords on not only what the amendments will comprise but what we intend to do thereafter. As the noble Lord will appreciate, there is a wealth of regulations in this space. I venture to say that quite a lot of the detail of the arrangements will be contained in regulations, which will be laid as soon as possible. To the extent that I can go into detail on what those regulations will contain, I shall be happy to do so, but I hope that the noble Lord will understand that I am not in a position to do so today.
Baroness Meacher (CB)
I apologise for interrupting the Minister. He referred to the payment of £100,000 to a lot of people in 2022, but is he aware that the whole point of Amendment 134 is to fill the gaps for all the people who did not receive an interim payment? When he referred to speeding up their response to the Langstaff inquiry, that was a verbal commitment, as I understand it. The point is that these people need an urgent payment of £100,000; as I understand it, they have not received any compensation, so it is urgent. We are talking about something that happened 50-odd years ago. The idea that we still need more time cannot be right, so I hope that the Minister can reassure us that absolutely everything will be done to get a payment of £100,000 out to the groups of people who have not yet received compensation—immediately and within a month of the passing of the future Act, as the amendment says.
Earl Howe (Con)
I perfectly understand the noble Baroness’s strength of feeling on this long-standing scandal. It may be of some reassurance to her if I repeat the words of my honourable friend the Minister for the Cabinet Office in the other place, who said in December:
“The victims of the infected blood scandal deserve justice and recognition. Their voice must be heard, and it is our duty to honour not only those still living and campaigning but those who have passed without recognition”.—[Official Report, Commons, 18/12/23; col. 1147.]
I met the Minister for the Cabinet Office to discuss these matters. My right honourable friend assured me that this is indeed his highest priority, and I undertake to the Committee that I will continue to work closely with him ahead of the next stage of the Bill.
I am grateful to noble Lords for their contributions to the debate and for highlighting so compellingly the issues that bear upon this appalling human tragedy. Ministers will reflect carefully on all that has been said. I hope my response has provided the noble Lord, Lord Ponsonby, and the noble Baroness, Lady Brinton, with enough by way of assurance—although I wish I could reassure them even further—about the Government’s intended course of action to enable the noble Lord to withdraw his amendment and for the other amendments in the group not to be moved when they are reached.
Baroness Brinton (LD)
Before the Minister sits down, I would like to ask him a couple of questions. I am grateful to my noble friend Lord Marks, who asked exactly the question I wanted to know about: what is going to happen between Committee and Report?
In other instances, it has been quite speedy to set up a shadow body—after all, the Government now know how to do it. Is there any capacity to start setting up a shadow body that will be ready to go?
We do not yet know the timetabling for the Report days, but clearly Members of the Committee are going to need to see the Government’s amendments in enough time, particularly—to pick up the point raised just now by the noble Baroness, Lady Meacher—to try to address the deficiencies if those who are not currently included remain so.
Earl Howe (Con)
On the noble Baroness’s latter point, I hope to have extensive discussions with noble Lords about the Government’s amendments and their intended and literal effect.
On setting up a shadow body, I myself asked that very question. There are some issues here. I am advised that it would not save any time. There are still a number of decisions to be made on the government response to infected blood, and clearly we cannot pre-empt those decisions by establishing an arm’s-length body without clarity on what its precise functions or role would be. As I have said, our intention is to table amendments on Report that will correct the defects in Clause 40 and have the desired effect of speeding up the implementation of the Government’s response to the inquiry.
However, I will take that point away to make sure that there really is no advantage in not having a shadow body. The Government have done that before in other circumstances and it is worth thoroughly exploring as an option. I think I will be told that any idea of a shadow body would need to be considered alongside its interaction with the passage of the legislation and the Government’s response to the recommendations of the second interim report, and indeed the report as a whole, but I hope the noble Baroness will be content to leave that question with me.
Lord Ponsonby of Shulbrede (Lab)
My Lords, this has been an important debate. In fact, I go further: it has been a historic debate, because in a relatively short debate we have had the noble Baronesses, Lady Featherstone and Lady Campbell, who spoke about very close relatives who have been affected by this tragedy; we have had the two noble Lords, Lord Bichard and Lord Owen, who gave evidence to the inquiry; and the noble Lord, Lord Owen, in his speech, went back the furthest, if I can put it like that, to 1975. There are Members who have spoken in this short debate who have tracked this issue for the many decades that it has lingered.
Nobody is questioning the best intentions of the noble Earl, Lord Howe; he has been involved in this issue in a number of ways over many years. My amendments are essentially probing amendments, and I acknowledge the letter that the noble Earl has sent to us. We will not press the amendment, but I was going to ask the same questions as the noble Lord, Lord Marks, and the noble Baroness, Lady Brinton, about process. The Government have said they will table amendments on Report, and the Minister said there will be an opportunity for noble Lords to see the amendments before then and to discuss them, but we may want to table amendments to his amendment and we will want to make sure we have ample time to do that. I know the noble Earl understands that point, but I repeat it from these Benches as well.
Earl Howe (Con)
My Lords, I am grateful to the noble Baroness, Lady Brinton, for her amendment, which, as she explained, would require the Government to publish a timeline for the payment of interim payments for victims of the Horizon scandal. As she knows, the amendment takes us back to a subject that the House has discussed several times in recent weeks. In all parts of your Lordships’ House, there is a strong desire to see justice for the victims of the Horizon scandal—in particular, to see them receive prompt financial redress. The Government share that desire.
The effects of the scandal on some postmasters have been, to put it at its mildest, truly awful. Some of them have lost their livelihoods, their homes or their health—or even all three. Others have faced serious financial impacts. The noble Baroness’s question is therefore extremely pertinent.
For reasons of history, there are three separate compensation arrangements in place; I hope that the Committee will allow me to put them on the record. One is for people who have had convictions for criminal offences overturned. A second, which is delivered by the Department for Business and Trade rather than the Post Office, is to top up the compensation settlement for unconvicted postmasters made at the end of the original so-called GLO High Court case, which exposed the scandal. The third—the Horizon Shortfall Scheme or HSS—is for postmasters who were neither in the GLO group nor convicted.
In two of the streams, we have recently announced fixed offers of settlement: £600,000 for those with overturned convictions and £75,000 for the GLO group. These fixed offers allow postmasters to receive substantial compensation without delay or hassle. Of course, those with larger claims will not generally want to accept these sums. They will instead, quite rightly, have their compensation individually assessed. For both groups, substantial interim payments are made promptly. Further payments are available to those facing hardship while their full claims are being assessed. We have undertaken to make first offers within 40 working days of receiving a completed application for the GLO scheme.
The HSS is already well advanced. All 2,417 of the people who applied by the original scheme deadline have had initial offers. More than 2,000 of them have accepted settlements and been paid. Late claims are still coming in—some stimulated by the ITV drama, in fact—and are being dealt with promptly.
However, two crucial drivers of the pace of compensation are not controlled by either government or the Post Office. First, the overturning of convictions has, of course, been in the hands of the courts, and it has been frustratingly slow. We believe that more than 900 people may have been wrongly convicted in this scandal, but, to date, only 97 of them have had their conviction overturned. The process has been not only slow but uncertain. In too many cases, the evidence has been lost or destroyed over time, and many postmasters have understandably lost all faith in authority and cannot face the prospect of yet another court case to clear their name.
That is why, on 10 January, the Government announced that they will be introducing legislation to overturn all the convictions resulting from this scandal. We recognise that this is an unprecedented step, but it is necessary if justice is to be done. I can tell noble Lords that, this afternoon, my honourable friend in another place has made a Statement about that legislation. We hope to introduce this legislation within a few weeks. I am sure that it will be widely supported across the House and in the other place, and that it will therefore be able to progress quickly. We hope to see it become law before the summer, with prompt compensation to follow.
That takes me to the second area where we do not have control of the timescale: postmasters and their lawyers need time to formulate claims and gather evidence, with some needing specialist reports from medical or forensic accounting experts. Setting arbitrary deadlines for the submission of claims would, I suggest, be deeply unfair to postmasters, and we therefore should not do it.
That is why the House recently and enthusiastically passed the Post Office (Horizon System) Compensation Bill, which implemented the Williams inquiry’s recommendation to remove the arbitrary deadline of 7 August 2024 to complete the GLO compensation scheme. It remains the Government’s goal to complete that scheme by August, but if postmasters need longer, that is fine.
The Government are determined to see financial redress delivered as quickly as possible for all postmasters, including those whose convictions will be overturned by the forthcoming Bill. However, setting a fixed timetable would entail rushing postmasters into major decisions about their claims and the offers they receive. I hope that, on reflection, the noble Baroness agrees that we should not do that, and will therefore feel able to withdraw her amendment.
The noble Baroness asked me a number of detailed questions. If she will allow me, I will write to her as fully as possible in response to her particular questions about legal advice, the Green Book, the logjam of claims and a number of others.
Baroness Brinton (LD)
I am grateful to the Minister for his response. As ever, it was thoughtful and very helpful.
I laid the amendment principally because it seemed to me that there were two issues. The first was about everything being done, where possible, by August, which seemed encouraging but clearly is not going to be hit in many cases. The detail that I gave to the Committee in the speech is what worries me more: there seems to be a chasm between Post Office Ltd and the postmasters about what is eligible in damage. I do not think it is just about whether people can get access to information, because of this proviso. I will be grateful for any letter, but would the Minister be prepared to meet between Committee and Report to discuss the detail? The most urgent thing, from their perspective, would be a grant for legal advice, given the complexity of applying. If that can be speeded up in any way, shape or form, that would be enormously helpful.
I suspect I will bring something back on Report, though probably not the same thing at all. In the meantime, I beg leave to withdraw the amendment.
Baroness Thornton (Lab)
My Lords, I do not need to add much to the words of the noble Baroness, Lady Brinton, because she has explained exactly why this is an important matter. I was slightly astonished when I read the amendment that this was the case and that this was something that we would need to remedy, so I look forward to the Minister’s response.
Earl Howe (Con)
My Lords, I too am grateful to the noble Baroness, Lady Brinton, for this amendment, which, as she explained, would require the Crown Court to automatically impose a restraining order on anyone convicted of a child sex offence; that would apply regardless of the type or length of sentence passed. There is no need for me to underline the horror of child sex offences and the lifelong harm that is inflicted on the victims. I therefore have a great deal of sympathy with the intent behind the amendment to do even more to try to minimise the impact of that harm, as well as protect the community from any further offending.
Restraining orders are a discretionary power available to judges to impose in cases where there is a need to protect people from harassment or conduct that causes fear of violence. The current regime allows for such orders to be imposed where there is sufficient evidence on conviction, post conviction or post acquittal. At present, applications for restraining orders are considered by the Crown Prosecution Service on a case-by-case basis, recognising that there is a need to keep a victim safe and take their views into account. Actions prohibited by the restraining order, such as going to certain locations or contacting the victim, may be a breach of the order which is punishable by imprisonment for up to five years. Variation or discharge of the restraining order must be undertaken by the court.
When dealing with child sex offences, the court has a range of sentencing options available that may include life sentences. The vast majority of offenders who are released are subject to licence conditions that could include conditions to protect the victim, such as prohibiting contact. Breaching the terms of any licence condition can result in an offender being recalled to prison.
Offenders are also subject to notification requirements, commonly known as the sex offender register, where individuals convicted or cautioned for a sexual offence must provide certain details to police, including address, national insurance number and bank account details. Furthermore, they will also be managed under Multi Agency Public Protection Arrangements, or MAPPA, for the duration of those requirements that, in many cases, will be for life.
Other measures to protect victims are also available. The sexual harm prevention order, or SHPO, can be made in relation to a person who has been convicted of a broad range of sexual offences, committed either in the UK or overseas. No application is necessary at the point of sentence, but courts may consider it in appropriate cases. Otherwise, applications can be made by the police, or other agencies, in preparation for the offender’s release on licence.
The prohibitions imposed by the order can be wide-ranging, such as limiting forms of employment that may involve contact with children or restrictions on internet access. The orders may be for a fixed period not exceeding five years but are renewable. More than 5,000 SHPOs were imposed in the year 2022-23, which shows that the courts are using the tools and powers available.
While I support the well-meaning intention of the amendment, I do not believe it is necessary, because there is a wide-ranging and effective set of measures to monitor and control offenders. I also suggest that the point at which these additional measures would be needed are when someone’s licence comes to an end; until then, conditions such as non-contact and exclusion can be in place on the licence. So it would be better to take decisions on the controls necessary at the conclusion of the licensing period, rather than attempt to predict them at the point of sentencing.
Requiring the Crown Court to automatically issue a restraining order as a condition of release in every case caught by this amendment would constrain the court’s discretion not to issue an order where it was not needed or desired. From a practical perspective, a mandatory restraining order imposed on an offender at the point of sentence, which could be many years before the end of the sentence, would be a duplication of some of the other controls I have already set out and it could create practical difficulties down the line, especially where the sentence is very long.
We also must remember the voice of the victim, which plays an important part in decision-making. Where an offender has received a custodial sentence of 12 months for violent or sexual offences, which of course include sexual offences against children, victims will be automatically referred to the victim contact scheme. Where the victim is a child, a parent or guardian may join the scheme on their behalf. If they choose to join the scheme, a victim liaison officer will inform them when the offender is going to be released and help them to request licence conditions that will apply upon the offender’s release, such as prohibitions on contacting the victim or entering an exclusion zone.
In conclusion, I hope I have adequately explained the wide-ranging provisions already available to safeguard victims, which we should allow the courts to impose as they see fit, according to the circumstances of a given case. I hope that, on reflection, the noble Baroness agrees and feels able to withdraw the amendment. In saying that, I make it clear, as I often do, that I am happy to talk to her after Committee to explore these matters further.
Baroness Brinton (LD)
I am very grateful to the Minister and I thank the noble Baroness, Lady Thornton. I am very grateful for his explanation of the system, but my difficulty with his response is that it does not make sure that the victim does not have to be proactive to go back to the court and make a statement, if they are very clear.
I hear what the Minister says about a sentence of more than 12 months, and I may return on Report with a slightly different amendment. This is a particular problem for victims of child sexual abuse of those who are discovered to have abused others and who present other issues. It is not just a one-off case that we are trying to resolve. In the meantime, I withdraw the amendment.
Baroness Thornton (Lab)
My Lords, I echo the worry of the noble Baroness, Lady Brinton, about this, partly exactly because it may not solve the victim’s problem that the noble Baroness, Lady Fox, outlined in proposing this amendment. We have also talked a lot about the unevenness of the criminal justice system’s data collection and everything else; I wonder how on earth it would do this, to solve what is probably a very small problem—but a challenge, absolutely—and whether there may be another way of resolving it. I look forward to the Minister’s remarks.
Earl Howe (Con)
My Lords, I am grateful to the noble Baroness, Lady Fox, for explaining the background to her amendment. It would require by law that the criminal justice agencies—the police, prisons and probation—identify and record any change of gender identity by a sex offender as a condition of their release on licence. It would also require the police to record the offender’s name and birth sex as a condition of their release on licence.
It may help if I outline the measures we already have in place, which I think address the spirit of this amendment. Part 2 of the Sexual Offences Act 2003 requires sex offenders who have been convicted of an offence in Schedule 3 to that Act to notify the police of their personal details annually and whenever they change. Those details include information such as names, including aliases, and addresses. They also include details of activity such as foreign travel and residence in a household with children.
Sex offenders subject to the notification requirements in Part 2 of the 2003 Act are managed under the Multi Agency Public Protection Arrangements. MAPPA is a statutory arrangement, through which the responsible authority—the police, prisons and probation—work together and with other agencies to discharge a statutory duty to co-operate, to assess and manage the risk posed by registered sex offenders and others living in the community.
In February 2023, the Ministry of Justice and His Majesty’s Prison and Probation Service created a presumption that all transgender female prisoners, whether they have a gender recognition certificate or not, would not be held in the general women’s prison estate. The Prison Service is able to verify, with the gender recognition panel, whether an offender has a gender recognition certificate. Any difference between an offender’s birth sex and assumed gender will therefore be recorded and made known to the probation and police services through their co-operation under MAPPA.
The MAPPA responsible authorities use the VISOR database to share information about registered sex offenders. VISOR enables the recording of sex, gender identity and gender presentation. An offender’s legal sex will be changed on VISOR only if they have provided a GRC to the police, probation or prison service. However, MAPPA agencies are still able to have regard to an offender’s change of gender where it is necessary to manage their risk, or prevent or detect crime.
Victims and Prisoners Bill
Earl Howe ExcerptsTuesday 13th February 2024
(9 months, 2 weeks ago)
Lords ChamberRead Full debate Victims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 31-V Fifth marshalled list for Committee - (9 Feb 2024)
Earl Howe (Con)
My Lords, as the noble Lord, Lord Wills, so ably explained, this group of amendments covers a number of issues: the appointment of the standing advocate, the function of the standing advocate, the appointment of additional advocates, and a review of the scheme’s effectiveness.
I will deal first with the noble Lord’s Amendment 123A, which would set a duty on the Secretary of State to appoint a standing advocate within one month of Royal Assent. The Government entirely share the noble Lord’s desire for the standing advocate to be in place as soon as possible once the Bill becomes law. However, we have a few concerns about the proposed amendment.
First, Part 2 of the Bill will be commenced by regulations made by the Secretary of State. That is the appropriate commencement mechanism for this type of provision. Secondly, it has always been our intention to run a fair and open competition for the office. Obviously, there is due process involved in that, which necessarily occupies a certain amount of time. Thirdly, as I hope the noble Lord will appreciate, the Government will want to carry out all relevant due diligence prior to making the appointment, and this process will also take a little time.
If the Government were to proceed as the noble Lord suggested, it would necessitate a direct appointment by Ministers. Of course, that is theoretically possible, but such appointments are normally used to address a short-term need and are typically for posts that last 12 to 18 months or something of that sort. This point also relates to the noble Lord’s other amendments on the appointment process, which would require the Secretary of State to obtain the approval of a relevant Select Committee and to hold a Motion for resolution before making the appointment, or to give an Oral Statement if it is refused.
It may help if I outline the Government’s current intentions for the recruitment process. Given the nature of the role and the tireless efforts and campaigning of so many people—not least the noble Lord, but also other parliamentarians, Bishop James Jones and, in particular, the Hillsborough victims and their families—for the establishment of the IPA, it is of the utmost importance that we get this right. On that basis, the Government intend to recruit the standing advocate through the public appointments process.
To remind noble Lords, theprocess is operated under the Governance Code on Public Appointments and is regulated by the Commissioner for Public Appointments. The scheme will ensure that the competition for the role is fair, open and transparent. It will provide the opportunity for anyone with the appropriate skills and experience to apply and help to ensure that we will have as a diverse a range of candidates as possible to choose from.
I would also like to reassure the noble Lord, Lord Wills, that the public appointments process already provides the opportunity for the appropriate Select Committee to interview a proposed candidate. If it would be helpful, I am open to discussing this point further with the noble Lord. Indeed, it is within the discretion of Select Committees to encourage potential candidates to apply. They can also hold a statutory officeholder to account once in post, as the noble Lord well knows. Additionally, we have also taken the step of ensuring, within this legislation, that the IPA will be subject to the scrutiny of the Parliamentary and Health Service Ombudsman, which adds a further layer of accountability. Taken together with the pre-appointment scrutiny that the public appointments process already affords Select Committees, it is the Government’s belief that no changes to the process are required at this time.
I now turn to Amendments 123D and 124B. These add a specific mention so that the clauses apply only when additional advocates are appointed. I do not think these amendments are necessary; the legislation as drafted already covers the point the noble Lord is trying to make. Ultimately, the clauses in question are intended to allow the standing advocate to provide a leadership function to any additional advocates appointed alongside them. Where no additional advocates are appointed, the leadership function would not be needed or executed. These amendments are therefore not necessary.
Amendment 124A in the name of the noble Lord, Lord Wills, seeks to grant the standing advocate the right to request all the relevant powers to establish an inquiry; to impose a duty on the Secretary of State to answer any requests from the standing advocate within two weeks; to impose a duty on the Secretary of State to make an Oral Statement to the other place should they refuse any request; and to impose a duty on the Secretary of State to demonstrate that they have had regard to various factors while considering the public interest. The noble Lord, Lord Marks, asked me to clarify the Government’s policy intention in this area. The Government have always been clear that the purpose of the IPA scheme is to support victims of major incidents, rather than undertaking their own independent investigations. Our position remains unchanged. This amendment would run counter to the policy intention.
The noble Lord, Lord Wills, quoted the words of my noble and learned friend Lord Bellamy in explaining the rationale for the Government’s approach. Briefly, the Government are of this view because they believe that giving the IPA investigatory powers could conflict with the work of other investigative authorities and risks duplicating or undermining them. I acknowledge all that the noble Lord said about the intended effect of his amendment. I am sure that he will know that, in recognition of the desire here and in the other place to see the IPA having a greater role in reviews, the Government announced additional functions for the standing advocate. The standing advocate’s functions, as set out in Clause 29, give it the ability to advise the Government on the most appropriate form of review mechanism in relation to a major incident and what the scope of that review should be. It will also have a vital role in relaying the views of victims in relation to this decision. The Government believe that this is the most appropriate form of involvement for an advocate to add value, without duplicating or undermining other processes.
While I obviously regret that the noble Lord and the Government are not at one on this issue, I hope he will welcome the shift that the Government have made. I did not close my ears to what he said; I also listened carefully to my noble friend Lady Sanderson. I would of course be happy to discuss this further with him and my noble friend in the coming weeks, as I know would my noble and learned friend Lord Bellamy. For now, I hope that the noble Lord will not feel the need to move the amendment.
My noble friend Lady Sanderson asked me what engagement has taken place with victims in shaping the role of the advocate. I can tell her that, since March, we have written to victims and given them an inbox, and we are happy to keep those conversations going while operationalisation continues. We have also met the representatives of the Grenfell and Hillsborough families. Further to that, we wrote to the victims of Hillsborough, Grenfell and Manchester at each stage of the Bill where amendments were being made, and very much welcomed their engagement.
On the question of whether, if Horizon occurred today, the victims could write to the IPA and ask it to look into the matter, the advocate would be able to ask questions of public authorities, such as the Post Office, and could advise the Government if it became aware of a developing situation. However, it could not currently represent Horizon victims, because this would be retrospective. If an IPA had been in place at the time that that scandal emerged, then they could have spoken to it.
On the question of whether the advocate could support victims at inquiries, at statutory inquiries the chair is able to make provision for legal representation for core participants. The advocate would not represent victims in a legal capacity at either inquests or inquiries.
The noble Baroness, Lady Hamwee, asked about—
Lord Marks of Henley-on-Thames (LD)
I am sorry to intervene on the noble Earl. I may be an amendment or two later than the point in the speech which I address, but is he sure that Horizon would count as a major incident, bearing in mind the definition of major incident in Clause 28(2), where a major incident
“means an incident that … occurs in England or Wales after this section comes into force, … causes the death of, or serious harm to, a significant number of individuals, and … is declared … by the Secretary of State to be a major incident for the purposes of this Part”?
I can see that Horizon caused serious financial harm, but is that the harm envisaged? I am not sure that it is. Would the Secretary of State be entitled to declare a major incident in the Horizon circumstances?
Earl Howe (Con)
I think we have already debated the latitude that the Secretary of State enjoys in interpreting the word “significant” when we debated the previous group of amendments. The noble Lord has asked a very fair question; I perhaps should not have rushed into an answer to the question I was given on Horizon in particular. It might be wise if, rather than go further at the Dispatch Box, I wrote to the noble Lord about the Horizon case specifically.
The noble Baroness, Lady Hamwee, asked about the IPA’s secretarial and admin support; that was also touched on by the noble Lord, Lord Marks. We will be coming to that in the fourth group of amendments, so if they will allow, we can defer the point to that debate, which my noble friend Lord Roborough will be responding to.
Lord Wills (Lab)
My Lords, I am grateful to everyone who has spoken to this group of amendments. I think everyone, with the exception of the Minister, has spoken broadly in support of them. As always, I am particularly grateful to the Minister for his extremely courteous and open response to quite a weighty volume of amendments which covered quite a lot of ground.
On the basic question of further engagement with Ministers and officials, I would be delighted. I am extremely grateful for the offer, and I hope we can arrange something in the very near future, in good time before Report, to deal with some of these questions. Quite a lot of them are details of drafting, and I may well have misunderstood the intent of the drafting. It may be that some further clarification is needed. These are details in the drafting of the amendments, and I am very grateful to move forward on them. The review question, dealt with in Amendment 133ZA, is similarly complex, and I am glad that, when we spoke a few days ago, the Minister and the noble and learned Lord, Lord Bellamy, seemed to welcome the principle. It would be good if we could clarify that and bolt it down to something practical that will work.
Amendment 124A is on the crucial question of fact-finding and transparency. I think the noble Lord, Lord Marks, referred to it as a modest amendment. If I had any hope of the Government accepting something more radical, I would have been far less modest, but I do not, I am afraid. The Minister’s response confirmed my worries about this. He repeated what has always been the Government’s position: that the role of the advocate is essentially a pastoral one—that advising the Secretary of State, as the Minister just described, is really only a baby step away from what is essentially a pastoral role. That really is not sufficient. Merely reiterating the Government’s purpose does not justify the purpose; it only shows that, for some reason I really do not understand—I really do not understand it, because I can see no practical benefit of it at all, to anybody—the Government are resistant to giving the public advocate further powers.
It is not a question of defensiveness over a particular issue. As the Minister said, the Bill is not retrospective at the moment, although I welcome his indication that he may be able to introduce that element of retrospection. I am frankly baffled. Timeliness is so important for victims who are suffering unimaginable trauma and grief, and all of whom, in their different ways, are seeking closure, because they fail to understand what has happened to their loved ones, out of a clear blue sky, and are given no explanation for why what happened has happened. As the magisterial report on Hillsborough by Bishop James, the former Bishop of Liverpool, shows, these delays allow those in power to construct false narratives about what happened. We saw that graphically at Hillsborough, when the Sun newspaper and the former Prime Minister told lies about football fans who lost their lives because of the negligence of the police.
Earl Howe (Con)
I meant to respond to the very pertinent points the noble Lord made on the cost and duration of public inquiries. He is, of course, quite right. This is a matter of concern. It is not for a trivial reason that your Lordships’ House is looking at this very issue in one of its special committees at the moment. However, one of the advantages, as we see it, of the IPA will be that he will be able to recommend to the Secretary of State a non-statutory route to inquiring or looking into incidents. I am sure that his or her voice in making such a recommendation will, for entirely the reasons that the noble Lord cites, be a very powerful lever in the process.
Lord Wills (Lab)
I am grateful to the Minister; he pre-empted me, as he could see where I was going to go next with this. He is quite right that the Inquiries Act 2005 is increasingly widely recognised as clunky and in need of revision, but that is not for now. That is inevitably going to be a lengthy process, and certainly for another Parliament, but we have this Bill in front of us.
Giving the public advocate power to advise the Secretary of State has no teeth at all. We know how Ministers take advice: sometimes they do and sometimes they do not. In the meantime, the victims, for whom this Bill is intended, go on suffering. While the Secretary of State decides and deliberates and moves on, is sacked, reshuffled and all the rest of it, the victims go on suffering the agony of not knowing what has happened to their loved ones, while over and again those in power use taxpayers’ money to construct false narratives. There is no end in sight to that in this Bill.
We have the opportunity to give real power to the independent public advocate, speaking on behalf of victims who have been left abandoned, over and again, for years and decades. The person who is meant to represent them “may” be given the power to advise the Secretary of State, who can then do what he or she likes, with no accountability—nothing. I urge the Government to look again at this.
Notwithstanding the obvious problems with public inquiries, here is a chance to do something. We have the model. The Hillsborough Independent Panel, which was set up by a Labour Government and championed by a Conservative Home Secretary and Prime Minister in the right honourable Theresa May MP, with cross-party support, is universally accepted as a model of how these things can operate. Yet the Government persist in rejecting the possibility for the independent public advocate to set up something like that in future.
Why? We know that it can save money. We know that it can produce a timely explanation of what happened, which is of incalculable benefit to victims. Yet the Government go on resisting it. Timeliness, cost benefits and transparency; what is not to love about those virtues? Yet the Government resist it. As I say, I am baffled. We will return to these issues on Report. I am grateful to everyone, and particularly to the Minister, for his approach to all this. I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, this group concerns the obtaining of the views of victims by the standing advocate and their being taken into account, or relayed to the Secretary of State so that they can be taken into account. The central point was that made by the noble Baroness, Lady Newlove. If victims of major incidents are to be given a voice and that voice is to be heard, they need, under this scheme, the standing advocate to be that voice—a voice that co-ordinates and articulates the victims’ response. It will often be a joint or combined voice and the stronger for that.
Under Amendment 124, the type of review or inquiry held would be the subject of the views that must be obtained and relayed. It is a matter on which the views of victims are strongly held. They are often views that are in conflict with the views of the Government. That is a central point about independence.
The next point under this amendment is their views on
“their treatment by public authorities in response to the major incident”.
Again, this is an area of not invariable but regular conflict between victims and government. The questions that arise are, “Was enough done to avoid the incident?”, “Was what was done done in time?”, and “Were sufficient resources devoted to relief and recovery after the incident?”. All those are crucial issues on which the voice of victims needs to be independently heard and taken into account.
Amendment 125 concerns the appointment of additional advocates and says the Secretary of State must seek victims’ views on whether to appoint additional advocates and whom to appoint. Again, that is a requirement that is plainly right, because the identity of the advocate and the appointment of additional advocates matter to victims, who are extremely concerned to know that the investigation and any inquiries are going to be properly carried out.
Finally, the views of the victims to be taken into account include the views that they express before the termination of an appointment of an advocate. Again, that is self-evidently right. We have in a later group an amendment tabled by the noble and learned Lord, Lord Hope of Craighead, removing the right of the Secretary of State to remove the standing advocate on such grounds as he thinks appropriate. I put my name to that. That is an important amendment that we will address when it comes, but it goes hand in hand with this amendment because the purpose of both reflects the reality that inquiries into major incidents may cast light on failings of government or organs of government that may cause the Government embarrassment.
One of the chief virtues of the independent public advocate system proposed in this Bill is precisely its independence of government. It is therefore essential that an advocate appointed to represent victims’ interests should be clear and free to carry out those functions fearlessly. If that involves criticism of government or individual Ministers, those criticisms should be made and investigated. The views of victims on the termination of an advocate’s appointment will therefore be central to that process. They should be central to any consideration of the termination of an advocate’s employment. That should not be left to the Secretary of State without regard to the views of victims.
Earl Howe (Con)
My Lords, I express my thanks to the noble Baroness, Lady Thornton, and the noble Lord, Lord Ponsonby, for these amendments, which bring us to an important dimension of any major disaster or incident: the need to give families a voice in decisions about the support they receive. I have a great deal of sympathy with the aims of these amendments. I will take them in turn.
Amendment 124 would require the standing advocate to obtain the views of victims of major incidents regarding any review or inquiry held into the incident and their treatment by public authorities, and then communicate those views to the Secretary of State. Let me say immediately that there is no disagreement here between the noble Baroness and the Government as regards the desired outcome. We agree that an important function of the standing advocate will be to champion victims’ voices to the Government and facilitate better engagement between them and government in the aftermath of a major incident. We agree that part of this involves the standing advocate understanding the views of victims and relaying them to the Secretary of State.
It is the Government’s intention that through Clause 29(2)(a) the advocate will communicate the views of victims of a major incident to the Secretary of State. This could include their views regarding any government-initiated review or inquiry into the major incident and their treatment by public authorities. This will provide victims with agency in the process, which is vital. It is therefore a matter of the best way to deliver this policy. The Government’s position is that it is best achieved without the Bill being overly prescriptive, and with Clause 29(2)(a) providing the foundation. A particular advantage of this approach is that the standing advocate would be able to advise on the full range of review mechanisms, including non-statutory inquiries—as I said a while ago to the noble Lord, Lord Wills—which by their nature cannot be specified in legislation. These are valuable options and can be very successful. The Hillsborough Independent Panel has already been mentioned as a good example.
The noble Lord’s Amendment 125 would require the Secretary of State to consider the views of victims before making the appointment of additional advocates. The intention behind the appointment of additional advocates has always been to prevent a single advocate being overwhelmed, or to ensure where necessary the specialist knowledge needed to provide swift and tailored support to victims. One of the key functions of the standing advocate, as outlined in Clause 29, will be to advise the Secretary of State as to the interests of victims, and the Government would consider this to include advice on whether additional advocates are needed and who may be suitable to appoint. This advice could include the views of victims which they had gathered.
Furthermore, as the Secretary of State has already committed, we will publish a policy statement that will give additional detail about the factors the Secretary of State will consider when appointing additional advocates, including the needs of victims. We believe this to be a better and more flexible approach to ensure that additional advocates can be deployed swiftly when needed. I am concerned that if we were to proceed as the noble Lord suggests with this amendment, a consultation process with the victims would be required prior to any further advocates being appointed. A consultation has the potential to unduly delay the appointment of further advocates and reduce the agility of this scheme to react to the developing situation. Furthermore, the last thing that we would wish to impose on victims during their grief is an additional bureaucratic consultation process.
I come lastly to the noble Lord’s similar Amendment 128, which says that the Secretary of State must consider the views of victims before an advocate’s appointment is terminated. There are a few scenarios in which we imagine that the Secretary of State will use his or her discretion to determine the appointment of an advocate using this power. I will speak to this in more detail in response to the amendment from the noble and learned Lord, Lord Hope, in a later grouping. However, I believe it would be helpful to briefly summarise those scenarios.
First, should additional advocates be appointed, it is right that the Secretary of State has the ability to scale down the number of advocates should the need no longer exist when the peak of activity is over. Secondly, the Government have always been clear that we will prioritise rapid appointment of an advocate following a major incident to ensure that victims are supported from an early stage. However, it may be necessary, following a greater understanding of the developing needs of the victims, or conversely the capacity of an advocate, to substitute one advocate for another. Thirdly, this power may be used to replace an advocate who does not command the confidence of the victims. I hope that those explanations are helpful to reassure the noble Baroness as to the intent behind this provision.
Lastly, as with the noble Baroness’s Amendment 125, I am concerned that, should the Secretary of State be required to carry out a consultation process with the victims, that would severely cut across the ability of the scheme to be flexible and adapt quickly to changing demands.
I believe that victim agency—if I may use that word again—is important, and that has come through strongly during the passage of the Bill, not least in another place. While the amendments serve as a reminder of that principle, I do not believe they are necessary.
Victims and Prisoners Bill
Earl Howe ExcerptsWednesday 7th February 2024
(9 months, 3 weeks ago)
Lords ChamberRead Full debate Victims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 31-IV(a) Amendments for Committee (Supplementary to the Fourth Marshalled List) - (6 Feb 2024)
Baroness Brinton (LD)
I am very grateful to my noble friend for so admirably speaking to Amendments 78 and 79—I will not cover them again—and to all noble Lords who have spoken. I want to focus my contribution initially on Amendment 106, which I have also signed. I have talked to Stella Creasy both about her own experience and about mine.
I had two incidents with my stalker-harasser. The first was at the beginning of the 2005 election, when, coming out of a Sky studio, I was told that my local newspaper wanted to speak to me about the fact that I was under investigation by Special Branch for electoral fraud—which was the first I had heard of it. It transpired that the person who was then identified as my stalker had reported me to Special Branch for falsifying my nomination papers and had then issued a press release for the weekly deadline of my local newspaper—which rather left me in a difficult position to discuss it.
A few hours later, my agent and I sat with two officers from Special Branch, who were extremely helpful. They were clearly more senior than the police officer that Stella encountered, because they were very clear that this was malicious. Worse than that, it was an intent to waste police time and money on an investigation that had no cause. They had briefly examined the allegation about why my nomination papers were false and deemed that this was malicious too. As a result, the whole problem went away, other than a severe talking-to to the person who had made the complaint.
Three years on—I think I mentioned this in one of the earlier sessions—one of the letters to the newspapers about me alleged that I was not fulfilling my role as a foster parent correctly by being a candidate. They had also reported me to social services. At that point, it became extremely helpful for the social worker, whom we knew quite well, to be able to ring Special Branch and say, “There is a malicious campaign going on,” and the whole thing just stopped. Is that not what should happen in every single case where it is clearly malicious?
I echo the comments of the noble Lord, Lord Russell, about Waltham Forest. It seems to me that they have lost sight of the actual case here. While it is important that both Stella Creasy and her children are appropriately protected, to do so following a malicious complaint in the terms of that complaint seems to me to be completely and utterly wrong.
From these Benches, we support all the other amendments that have been laid, and I thank the noble Baroness, Lady Bertin, for introducing amendments on third-party materials and therapy and counselling data. I also thank the noble Baroness, Lady Thornton, for her Amendments 78 and 79. As my noble friend Lord Marks outlined, this is absolutely at the heart of giving victims justice during a process and after a process. They are, perhaps, very detailed amendments— I am very aware of the point made by the noble Lord, Lord Thomas of Cwmgiedd, about the police needing a balance, but there is a way through that. At the moment, the balance is entirely against the rights of the victim, and I hope that the Minister will be able to respond in a positive way.
Earl Howe (Con)
My Lords, with this group of amendments we arrive at a particularly sensitive and emotive set of issues, as noble Lords have so movingly described. I shall do my best to provide responses to each of the amendments in as constructive and informative a way as I can.
I start by addressing Amendment 101, in the name of my noble friend Lady Morgan and spoken to by my noble friend Lady Bertin. The amendment seeks to revise the Government’s new Clauses 44A to 44F, which place a duty on authorised persons, including the police, to request victim information only when it is necessary and proportionate in pursuit of a reasonable line of enquiry. It would instead require agreement before the police could request victim information.
To pick up a point raised by the noble Lord, Lord Russell of Liverpool, when we were developing this legislation we wanted to consider very carefully the desirability of aligning the provisions around requests for victim information and the extraction of information from digital devices. Where possible, we have ensured consistency between those provisions.
The new victim information clauses in this Bill do not grant new powers to authorised persons; instead, they place safeguards around requests for third-party material. This is unlike the powers governing the extraction of material from devices in the Police, Crime, Sentencing and Courts Act, which give new statutory powers to authorised persons to request a device and extract information from it on the basis of agreement.
My noble friend’s amendment is based on the principle of victim agreement, but there is a key point we need to remember here. Unlike the information contained on a personal device, the victim does not own the material held by a third party, and therefore cannot agree to its disclosure. That does not mean that the victim’s views are immaterial, and I will come on to that, but the decision to release this information instead lies with the third party. The third party, of course, must be able to fulfil their own obligations under the Data Protection Act 2018, which governs the processing of personal data by competent authorities.
When considering digital information, it is likely that information held on a device could be accessible via other sources: that is, messages between a victim and suspect could be accessible from the suspect’s device. That is unlikely to be the case for third-party material. Therefore, it would not be appropriate to mandate that a victim agree to a request before the third party can disclose the material, because that may prevent the police accessing vital information relevant to the case.
Furthermore, a suspect’s right to a fair trial is already enshrined in law as part of the Human Rights Act 1998, which new measures must not contravene. This amendment could prevent authorised persons accessing information they need to support a reasonable line of inquiry, whether it points towards or away from a suspect. Investigators should always work to balance the public interest in obtaining the material against the consequential impact on the victim’s privacy.
Of course we recognise that it is best practice for investigators to work with and consult victims, so that their views and objections can be sought and recorded. That is why we have supported police in doing so in the draft statutory code of practice that we have published alongside the Bill.
Amendment 106 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 gathered during a safeguarding investigation where the complaint was not upheld.
It is of course right that people are able to flag genuinely held concerns about children whom they believe to be vulnerable. It is also right that social services fulfil their duty to treat each safeguarding case seriously and to make inquiries if they believe a child has suffered or is likely to suffer harm. However, equally, malicious reporting and false claims made to children’s social care are completely unacceptable. They not only cause harm and distress to those subject to the false claims but divert crucial time and resources from front-line services and their ability to undertake investigations into cases where there are genuine safe- guarding concerns.
Current data protection legislation sets out that data controllers must respond to any request from a data subject, including requests for erasure, and then must consider the full circumstances of a request—including the context in which the data was provided—before refusing. Where a data subject is dissatisfied with the response to their request, the current rights of appeal allow a data subject to contest a refusal and, ultimately, raise a complaint with the Information Commissioner’s Office.
I assure my noble friend that, as part of its decision-making process, the ICO will take into consideration circumstances where a malicious claim has been made that may or may not amount to criminal conduct. Where a complaint to the ICO is upheld, the ICO can tell the organisation to assist with resolving the complaint, such as providing information or correcting any inaccuracies. The ICO can make recommendations to the organisation about how it can improve its information rights practices, and can take regulatory action in the most serious cases.
I hope that the process I have set out reassures my noble friend, and the Committee, that the current data protection legislation provides adequate protection. Therefore, in our view, additional provision is not needed.
Baroness Thornton (Lab)
Can the noble Earl clarify that he is saying that it is up to the victim to take the action?
Earl Howe (Con)
The law is there to enable them to do that. However, where they have an advocate, that person can act on their behalf. I recognise what the noble Baroness is implying in that question. All this is an extremely stressful and traumatic process for the individual involved.
Baroness Brinton (LD)
May I pick up on the Minister’s response to the noble Baroness, Lady Thornton? The whole problem in this group is about the onus that is continually placed on the victim. It would be really helpful for the victim and those supporting them if there were an ability to short-cut some of that access. It would be enormously helpful if the Minister could go back and perhaps seek advice from the ICO about whether there are exceptional circumstances like that, because it is such a burden.
Earl Howe (Con)
I will be very happy to do that because I fully recognise the seriousness of the issue, and in particular the appalling events that Stella Creasy had to endure.
Lord Russell of Liverpool (CB)
The noble Earl has laid out, in his usual exemplary way, the way that the system is meant to work and the way it is designed. I suggest that the acid test would be to go to the officials concerned in Waltham Forest and ask them to describe, without leading the witness, exactly how they see what the noble Earl has just described—how they understand it—and how they therefore see what they can and should do. I suspect the results would be some distance away from what the noble Earl has just described, and therein lies the problem. It is fine to have a system, a process and a code that are meant to work, but if they are not working, which they clearly were not in this case, to put the onus on the individual victim to try to rectify that does not seem like justice, and neither does it seem sensible or proportionate.
Earl Howe
I have heard the strength of feeling on this, and I will be more than happy to take the issues raised back to my colleagues and officials in the department. I will be happy to write to noble Lords about this, and I would also be happy to arrange for my noble friend and interested Peers to meet me, or my noble and learned friend Lord Bellamy, to discuss the issues that have arisen.
I turn to Amendment 103, tabled by the noble Lord, Lord Hampton. We recognise the importance of ensuring that the distinct needs and experiences of children are reflected in the code of practice that the noble Lord mentions, and that is why we have included specific guidance in the draft code for handling victim information requests for children. I agree with the noble Lord that it is essential to make sure that the final code reflects best practice in this area, and that is why my noble and learned friend Lord Bellamy has instructed officials to review the list of statutory consultees for this code of practice.
I turn next to the amendments tabled by the noble Baroness, Lady Thornton, which 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 confident in their rights and are aware of those rights, particularly when preparing for trial and when requests for their personal information are made; I found much that I could agree with much of the contribution from the noble Lord, Lord Marks.
We wanted to ensure that our understanding of this issue is as comprehensive as possible and, to that end, the Government asked the Law Commission to consider the merits of independent legal advice for victims as part of its comprehensive review into the use of evidence in sexual offence prosecutions. The consultation closed in September last year, and we expect the final report to be delivered in the autumn of this year. To avoid making changes at this stage that could pre-empt the outcome of the Law Commission’s review, and to ensure that we are considering all the evidence as a whole, we will consider the Law Commission’s report and respond in due course. There is no reason why the tenor of this debate should not form part of the Government’s deliberations once we have the Law Commission’s report in our hands.
Perhaps I could add something around the therapeutic support issue. Victims of rape should not be told that they cannot access the therapeutic support that they need to heal from the trauma that they have endured. The Crown Prosecution Service pre-trial therapy guidance is absolutely clear that therapy should not be delayed for any reason connected with a criminal investigation or prosecution. The guidance sets out clearly that it is for the victim to make decisions about therapy with their therapist and that criminal justice practitioners should play no role in the decision-making process.
In the rape review action plan, we recognised that victims of rape frequently experience intrusive requests for personal information. To improve that situation, we have taken a number of actions, including legislating through the Bill to introduce a statutory code for the police to ensure that requests for victim information are made only when necessary, proportionate and relevant to a reasonable line of inquiry. The police must also provide full information to the victim on what information has been requested, why it has been requested and how it will be used. A draft code of practice has been published. When it is finalised, it will be statutory, and police will have a duty to have regard to the code when making requests. I hope that that is helpful.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am grateful to the noble Earl for giving way. I ask whether the code will, in fact, introduce what the noble Baroness, Lady Newlove, called a privilege against requests made for records of therapeutic interventions. That is one of the problems: therapy is deterred by the fear of a future request for notes to be disclosed. That is a very serious issue.
Earl Howe (Con)
I recognise the seriousness of the issue. I have no advice in my brief on that, but I will be happy to write to the noble Lord on that point.
Baroness Newlove (Con)
My Lords, it is exactly as the noble Lord, Lord Marks, said. He put it so succinctly, more so than I did—I would go on, because I am so passionate about this.
I have admiration for the noble Earl. What worries me in all this legislation is that it is so simple to say, but when it is enacted on a traumatised rape victim, it is not as simple as joining the dots. I am up for having further conversations, but this is for the professionals. While we can stand here and say this, I am still going through the criminal justice system, and believe you me: I could write another book on how it does not do a service to victims—and I am in the position that I am in, as is the noble Baroness, Lady Brinton; it does not follow.
For rape victims, it is really hard-hitting when they are going to a SARC centre to be forensically examined, and they are talking to individual people. While we want to have trust and faith in our police officers, the police are so not like what we will have in statutory guidance. Also, what do we class as reasonable? Everybody within our criminal justice system has a different definition. It should not be for the victim to think, “What is reasonable?”, when they just want to do what is best.
I really want this to work, but I wish we could be cautious and understand that the people we are talking about are traumatised. They may have been raped not once or twice: it could have been in their home. Everything is intrusive, and it is down to the victim to have a voice to go forward. I wish we could get that in the guidance and the legislation, because it is their lives that we are speaking about and it is their lives that we need to put back on a level playing field.
Baroness Bertin (Con)
My Lords, I will also come in on this. I have huge respect for the noble Earl, and I have huge respect for the police, but I am afraid I cannot accept the idea that all 43 police forces and all chief constables will look at, understand and know the code of conduct, and that this will somehow be better than a judge saying that something is right or wrong when it comes to releasing therapeutic records. I would certainly like to meet him and others about this, ahead of Report.
Earl Howe (Con)
My Lords, I am the first to agree that a code of practice takes us only a certain distance. We also need to ensure that there is proper training for police and others. We had a short debate about this earlier in the week, and I hope I gave some useful information to noble Lords on that front. I am, of course, very happy to speak to my noble friends about this—as I am sure my noble and learned friend Lord Bellamy will be, once he gets better. It is not a simple matter, and I did not intend to suggest that it is.
On the amendment tabled by my noble friend Lady Bertin, as I have already said, it is vital that victims of crime can access the justice system and get the support they need without fear that their privacy will be violated. I am aware of concerns that deeply private information about victims, including notes from counselling sessions, have sometimes been used inappropriately to discredit victims—in particular, victims of rape and serious sexual offences—seeking justice through the criminal justice system. This can, as the noble Lord, Lord Marks, pointed out a minute ago, prevent victims from accessing the support they need in the first instance. That should not be the case, and I am grateful to my noble friend for raising the topic through the amendment.
My noble friend’s amendment seeks to put in place a judicial barrier for disclosure of counselling records and, with some exceptions, to create a requirement for the court not to grant access to this material where the disclosure was made in confidence by the victim to a person providing support services in a professional capacity.
Through the Bill, we are placing a new statutory duty on the police, as I have said, to request victims’ information from a third party only where necessary and proportionate in pursuit of a reasonable line of inquiry. Police must also provide information to the victim on what information has been requested, why, and how it will be used.
As I have outlined, the Government have asked the Law Commission to examine the trial process in sexual offence prosecutions and consider the law, guidance and practice relating to the use of evidence. This review will include consideration of whether a court direction should be required before accessing third-party material such as counselling records, and consideration of international examples where this system is in place.
Baroness Chakrabarti (Lab)
I am grateful to the noble Earl for giving way. I have not spoken in this group so far, because I agreed with everything said by the proposers and did not want to take up the Committee’s time, but, in the light of what I have just heard—in general, but also specifically about counselling notes— I feel moved to. A general obligation on necessity and proportionality is not going to cut it, I am afraid, because counselling and therapeutic notes are special. Just as legal advice is special, and subject to special protection in the courtroom, there is no reason why we cannot act to make such notes special too.
I appreciate that the noble Earl is heroically stepping into another’s brief, no doubt at short notice, but I think that it is for the department to reflect on the quality of thinking so far. Waiting for the Law Commission will take too long. There are already too many women who have not come forward to report their rapes because of the well-publicised problem with counselling notes. They are being counselled by public authorities to choose between counselling or taking their criminal case forward—this is totally unacceptable.
My goodness, the irony of relying on general principles in the Human Rights Act is perhaps the richest I have heard in a long time, given some of the positions that senior members of the Government are taking on that Act and the ECHR. I hope the noble Earl will reflect on these answers or urge others responsible to reflect.
Earl Howe (Con)
My Lords, having tasked the Law Commission, as we have, with preparing a full-scale set of recommendations in this area, it would be unthinkable for us to pre-empt its report. I am afraid I must disagree with the noble Baroness. I realise how emotive and stressful an area this is for anyone who is intimately involved in it day to day, but that is how we have to proceed.
Baroness Bertin (Con)
I want to make a technical point about the Law Commission review, which I have full respect for. As I understand it, the commission will not be looking into pre-charge situations, so the amendment would still stand as that subject is not being tackled by the Law Commission. I reiterate that I just do not buy the idea that police officers all around the country are necessarily going to have the right training to enact the responsibilities that we are putting on them. We really will be pursuing this, I am afraid.
Earl Howe (Con)
I hear what my noble friend has said. I was able to give what I hoped was helpful information in our debate on Monday about police training, but it is by no means an overnight process, as I am the first to acknowledge. Still, work is under way, and it is surely an important ingredient in the mix.
We think that the Law Commission is best placed to conduct a holistic review of the existing system and to make recommendations for improvement where necessary, and the Government are most reluctant to make changes at this stage that could pre-empt the outcome of its review. However, we can all look forward to closely reviewing and responding to its findings and recommendations when they are published later in the year.
Before I turn to Amendment 173, I shall address the point raised by the noble Baroness, Lady Finlay, about victims with limited mental capacity. There are general points in the code about enhanced rights if the victim’s quality of evidence is likely to be affected because of a mental disorder. They may be supported by a registered intermediary if a mental disorder affects their ability to communicate. Some communications under the code might be done with a nominated family spokesperson if the victim’s mental impairment means that they are unable to communicate or lack the capacity to do so.
The Law Commission is looking at the impact of rape myths on people with disabilities or mental health conditions and how the current legislation and practice of the use of intermediaries is working in respect of complainants in sexual offence cases with disabilities and disorders.
Baroness Newlove (Con)
My Lords, I am grateful for that response to the noble Baroness, Lady Finlay. I did a report on registered intermediaries. Again, I mean no disrespect to the Minister, because this is a very passionate area that we are speaking about, but we have a shortage of registered intermediaries, and they are the ones who train the police to get the best evidence.
I am concerned about people with autism or special needs, and even victims who have nothing apart from their trauma. My concern is that there is a shortage of registered intermediaries, and the reason is that they were not getting paid to do the job. I ask the Minister to write to me to see where we are on that position. While he has given a copy-and-paste response, in a sense, it does not help to fix the problem for people with special needs.
I have met a couple of victims of rape who were disabled. They thought they were raped because they were disabled, but it has never left me that when they went through the court trial they found that those people were on the web and looking at disabled people. It was not because that victim was disabled. So I am concerned. The Minister does not have to answer now, but I ask him to write to me about where we are on registered intermediaries after that report six or seven years ago.
Earl Howe (Con)
I would be happy to write to my noble friend.
Amendment 173 seeks to extend Clause 24 to the whole of the UK. At the moment these measures apply to England and Wales, on the basis that policing is a devolved matter. This aligns with the territorial extent of the majority of measures within the Bill. We have also taken the decision to limit the scope to England and Wales as, following engagement with the devolved Governments, it is clear that there is no appetite at present for these provisions to extend further.
Baroness Thornton (Lab)
I assume the noble Earl is asking me to withdraw my amendment.
I thank all noble Lords who have taken part in this debate. The noble Earl will be able to report with some veracity to his noble friend, who we hope will be back with us next week, that there is a complete degree of unity across the Committee about the need for action on all these amendments.
I thank the noble Earl for the fact that there has been some movement; I think that at least two meetings will flow from this group of amendments. I thank the noble Baroness, Lady Finn, in place of the noble Baroness, Lady Morgan, for her introduction and the suggestion that we should meet to discuss Amendment 106 and take that discussion forward together.
On Amendment 106, we have talked about my honourable friend Stella Creasy, who I have known since she was about 16 or 17 years old, but the briefing we got told us of many other examples of people who had been harassed. As one anonymous case said:
“Out of the blue Z received a call from their local police sharing details of a complaint made about the treatment of her children. The anonymously submitted complaint made a series of false claims accusing Z of neglect and abuse ranging from failing to feed or clothe their children correctly or take them to the dentist and GP. Social services were able to confirm that Z’s children attended school, the dentist and were registered with their local GP. Despite a lengthy investigation Z is no further in understanding who made this complaint, and their children’s record remains”.
She feels wretched about that fact. Of course, that carries forward to what happens to those children. Every time that mother has to fill in a form or a job application in public services of some sort, the fact that the report exists on the record is material.
Many noble Lords hold positions. I am a non-executive director of the Whittington Hospital and have had to go through the usual CRB checks to hold that position. If this was me, I would have to have declared that. That is what happened to Stella Creasy and all these other women who have been harassed and about whom vexatious complaints have been made. It is not just that this is unfair and a continuation of harassment; it has a material effect on those people and their children. We need to find a remedy for this issue.
I turn to the other amendments. I thank the noble Baroness, Lady Bertin, for her introduction and for the way in which she talked to her amendments. The noble Baroness, Lady Newlove, made her usual powerful and informed contribution. The words of the noble and learned Lord, Lord Thomas, were very wise. The noble Baroness, Lady Finlay, champions some of the most vulnerable people in our society. The noble Lord, Lord Marks, was perfectly correct in saying that the effects of Amendments 78 and 79 in my name would be only beneficial, not just for the victims of rape but for all the authorities and for their conduct in dealing with these victims.
The question is: can we wait another couple of years for the Law Commission to report and for the Government to consider it and take it forward? I was interested in what the noble Baroness, Lady Bertin, had to say. This issue may not fall within the scope of what the Law Commission is considering. We all need to know that, so that the discussions we might have with the Minister can be resolved in a spirit of information. I praise the noble Earl who has had to stand in for dealing with all these issues in his normal informed and courteous manner.
Finally, Amendment 115 on not delaying therapy is vital. As my noble friend Lady Chakrabarti said, the idea that you have to choose between therapy and justice is so abhorrent that we cannot wait another couple of years to be able to sort that out.
I thank the noble Earl. I look forward to the meetings and conversations we will have between now and Report, when I suspect we will return to many of these issues. I withdraw my amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I open by agreeing with the last point made by the noble Lord, Lord Marks, that the overall path of this group of amendments is consistent with the harm panel’s recommendations.
In debating the group, I can see that there may be drafting improvements to be done. I am particularly grateful to the noble Lord, Lord Meston, for the points he made regarding the drafting of particular amendments.
I remind noble Lords that I sit as a family magistrate in London, and have been one for about 10 years. About 80% of the work that we deal with in our practice is private law, and so very much the types of cases that we are considering in this group of amendments.
I am grateful to my noble friend Lady Chakrabarti for the way she divided this group into two—Jade’s law and then the amendments that focus on using the family court to perpetrate or perpetuate abuse, which is almost always abuse of the woman.
I will not go through the amendments individually, because they have been fairly widely debated, but I will make some particular points, the first of which is on Amendment 82, which the noble Baroness, Lady Fox, questioned and spoke to. The point she made was about the medicalisation of parental alienation, and I think she argued that the courts should decide.
Some noble Lords in the Committee will have taken part, about three years ago, in the Second Reading of the Domestic Abuse Bill, as it was then, when the noble Baroness, Lady Meyer, spoke passionately about parental alienation. She absolutely believes that parental alienation is real, and that she experienced it with her own sons. In my experience of when domestic abuse allegations are made, which is fairly frequent, it is not an unusual scenario where the woman is making accusations of domestic abuse against the man and the man is applying for a child arrangements order to restart contact with his children, and he is making allegations of parental alienation. When that happens at magistrates’ level, we kick it upstairs.
We know it is a complex area, where, as the noble Lord, Lord Meston, said, there has been recent advice from the president on this matter, and we know that, particularly when there are wealthy individuals involved, there will be any number of experts who are brought into the court to try to resolve cases. We see these allegations a lot at my level, and we try, if possible, to resolve them there, but if they are persisted with, we will put them up to district judge or circuit judge level.
I want to reiterate what the noble Lord, Lord Meston, said about the Crown Courts putting in place protection orders to prohibit repeated applications and that this should be a decision for the family court. It is something that is routinely done in the family court, when you see persistent applicants who are abusing the process, and I argue that it is usually evident when we see it and they are orders that are regularly put in place.
The other point that the noble Lord, Lord Meston, made, was on Amendment 89, which I support. He questioned the degree of drafting in the amendment. The point I would make is that while there may well be shortcomings in the drafting, the direction of travel is clear and consistent with the rest of the amendments in the group. That may well be something that this side of the House would want to persist with at later stages of the Bill, depending on how the Minister replies to this debate.
In summary, family courts present some of the most difficult cases that I deal with. You see more tears in a family court than in any other court structure. I had a meeting this morning with a group representing fathers. This is an unusual group: you do not see them that much, and not much lobbying material has been sent to me regarding this or the Bill as a whole. The group that came to see me this morning was called Dads Unlimited, and its particular interest is in male suicide and male self-harm. The point that it was making to me—I must admit that it had some pretty persuasive data—was that, when men are involved in the family court system and making applications to court, they hide their mental vulnerabilities. They do not go to see their GP, and they do not want to talk about it, because they believe that it will be used against them when they are making their applications to court to restart contact with their children.
This is a difficult issue, and I think everybody understands that. Nevertheless, these amendments are trying to codify and build in protections to reduce abuse within family courts as far as possible, and I support them.
Earl Howe (Con)
My Lords, I begin by thanking the noble Baroness, Lady Chakrabarti, for tabling this group of amendments, which take us deep into the heart of the family court and its proceedings. The noble Baroness speaks compellingly and with great passion on these matters. I think she would agree with me that family court proceedings involve some of the most sensitive and difficult decisions that any court has to make, resulting as they do in often profound consequences for parents, children and whole families.
All the amendments in this group have noble aims. They seek to protect vulnerable children and victims of domestic abuse, and that is an agenda that I and the Government strongly support. I shall address each in turn, but I need to start by airing what I see as a difficulty running through these amendments: in one way or another, a number of them seek to curtail the family court’s discretion to take individual decisions on a case-specific basis on what is in the best interests of the children involved. With enormous respect to the noble Baroness, whose experience is much wider than mine, we need to be a bit careful here. The paramountcy principle, enshrined originally in the Children Act, provides the bedrock of all family court decisions. It is a principle that I firmly believe we must protect and uphold.
I start with Amendment 89. As the noble Baroness explained, it seeks to exempt from the provisions of Clause 16 victims of domestic abuse who then kill their abuser; this is Jade’s law, as she mentioned. None of us can have anything but the deepest sympathy for people who find themselves dealing with these extremely difficult and challenging situations. That is why my response on this amendment is that the Bill already allows for this protection. Clause 16 gives a clear route to protect victims of domestic abuse who have killed their abuser. It allows the Crown Court not to suspend parental responsibility in cases of voluntary manslaughter where it would not be in the interests of justice to do so. Our intention in including this exemption is that it could be used in situations where a victim of domestic abuse kills their abuser after a campaign of abuse. I hope the noble Baroness will find that assurance helpful.
Lord Meston (CB)
My Lords, I hesitate to interrupt, and I understand the drift of what the noble Earl is saying, but all I was suggesting was that, although I fully understand the desirability in many cases of having Section 91(14) orders—and suggest that in these extreme cases they should be the norm—it should not be done in the Crown Court but should be part of the mandatory requirements at the review hearing that will follow shortly afterwards in the family court. It should, at the very least, be something in the statute that the reviewing family court should be required to consider.
Earl Howe (Con)
I am very grateful to the noble Lord for those comments and will ensure that they are fed back to my noble and learned friend Lord Bellamy, and the department as a whole.
Baroness Chakrabarti (Lab)
I take the opportunity of this conversation to request that, when the noble Earl feeds back to the noble and learned Lord, Lord Bellamy, the point made by the noble Lord, Lord Meston, he emphasises that the concern here was not the Crown Court versus the family court and disrespect for any court’s expertise; it was for families being dragged into another process, possibly without legal aid, and going through the trauma of that procedure when they have just lost a loved one to murder by the spouse or partner. If, somehow or other, the Government could consider—the noble Earl dropped some breadcrumbs when he spoke of the duties of local authorities—a way to relieve the burden on the families who have to spend money and go through further trauma, that would be very welcome.
Earl Howe
I take the point about burdens placed on families at exactly the point they should not be, and I will feed that in.
Amendments 85 and 96 seek the automatic suspension of parental responsibility in cases where a parent has been convicted of sexual offences
“against the child, or a child in the family”.
I understand the motivations behind the amendments, but there are good reasons for limiting Clause 16 to instances of murder and manslaughter. Where one parent has killed the other, the children involved will, in many cases, have no one left to exercise parental responsibility apart from the perpetrator. It is absolutely right that, in those circumstances, those caring for the children are spared the burden of commencing family proceedings to restrict the offender’s parental responsibility.
Where a parent has committed another serious offence, the situation is very different. The other parent will, in most cases, be able to exercise their own parental responsibility and, if required, apply to the family court to restrict the offender’s parental responsibility. Legal aid is available for these applications.
There is a further point here. There may, and almost certainly will, be many cases in which an offender is not seeking to abuse anyone, or even to exercise their parental responsibility, and the children and family involved therefore have no interest in going through court proceedings to see their parental responsibility formally restricted. In those scenarios, it is unlikely to be in the best interests of the child and their family to be drawn into court proceedings that would inevitably be triggered by the automatic suspension, and the further distress that this will cause. Again, these amendments have a worthy aim but there is already a clear legal route for these restrictions to be put in place, and I hope that provides some reassurance.
Amendment 110 seeks to ensure that only experts regulated by the Health and Care Professions Council can undertake psychological assessments in family court cases. As the noble Baroness knows, the instruction of an expert within the framework of Section 13 is a matter for judicial discretion. There are, however, clear rules governing the use of experts in the family court. Practice direction 25B covers the role of experts in the family court, and an annexe outlines the 11 standards that experts must comply with. Where an expert’s profession is not regulated, it details the alternate obligations to ensure compliance with the appropriate professional standards.
I have already mentioned the Family Justice Council’s draft guidance on responding to allegations of alienating behaviour. The guidance notes that only experts regulated by the HCPC should give evidence in cases where alienating behaviours are alleged. Despite the measures already in place, and the upcoming guidance, it is clear that concerns exist. Officials are considering what else can be done in this area. I am mindful that we are dealing with an existing system of judicial discretion, so I am keen that any additional action does not disrupt the safeguards already in place but addresses the legitimate concerns that have been raised.
I am grateful to the noble Baroness for what she said on this topic. I hope she is reassured that we are taking seriously the issue of unregulated experts and seeking to resolve this matter through the appropriate route.
Amendment 111 seeks to remove the presumption of parental involvement in domestic abuse cases and to prohibit unsupervised contact between any person and a child where they are awaiting trial, are under police investigation, are on bail, or are going through criminal proceedings for domestic abuse, sexual violence or a child abuse-related offence. I recognise how important the issue of parental involvement is. However, the existing legislation, namely the Children Act 1989, provides sufficient safeguards to address these concerns. Section 1(6) of that Act, first, requires courts to consider whether a parent can be involved in the child’s life in a way that does not put the child at risk of suffering harm. The presumption of parental involvement applies only if that test is met. The presumption, where it does apply, is also rebuttable where there is evidence that the involvement will not further a child’s welfare. The court must treat the child’s welfare as its paramount concern.
In addition, practice direction 12J clearly sets out the factors that the court should consider when deciding whether to make an order for a parent to have involvement with a child. The court must be satisfied that the physical and emotional safety of the child and the parent can be secured before, during and after any contact.
I appreciate the aims of this amendment, and the noble Baroness will be aware that the Government are currently reviewing how the courts apply the review of the presumption of parental involvement, which will be published in due course. However, as there is already a clear legislative route for the court to determine if parental involvement should be prevented to protect the child. I therefore believe the proposed amendment is unnecessary.
Next, I will address Amendment 117, which seeks to prevent the family court from ordering a victim of domestic abuse to disclose their medical records to their abuser, unless there are exceptional circumstances. The Family Procedure Rules give the court the power to control the disclosure of evidence. Rule 22 provides that the court may give directions about the type and nature of the evidence it can order, alongside outlining the nature of the evidence required to reach a decision. The court will also decide how any evidence should be placed before the court. Rule 4.1(3)(b) gives the court the power to make an order for disclosure and inspection, including the disclosure of documents, as it thinks fit.