Victims and Prisoners Bill

Lord Bellamy Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

Moved by

[Lord Bellamy]

That the Bill be now read a second time.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, in opening this important debate, I first express the Government’s warm thanks to all those who have contributed to this Bill’s engender, notably the many organisations and individuals who have responded to consultations or made representations, successive Lord Chancellors—not least the right honourable Sir Robert Buckland KC MP and the right honourable Dominic Raab MP—and many honourable Members on both sides in the other place who have worked to improve this Bill in its passage through Parliament.

I venture to suggest that most of the issues before us are not in essence party political. I trust and hope that the general direction of this Bill, which aims to enhance and protect the position of victims in the justice system in its widest sense, will command broad support across the House. We will, I anticipate, be mainly considering the means rather than the ends. I would like to say at the outset that my door is always open to any noble Lord who would like to discuss these issues in more detail as our debates proceed. In anticipating a full and constructive debate, I particularly congratulate the noble Baroness, Lady Newlove, on her re-appointment as the Victims’ Commissioner, and much look forward to her contribution to our work.

I turn then to substance and will take the main highlights of the Bill in sequence. Part 1 further enhances the positions of victims of criminal conduct—widely defined under Clause 1—in two main respects. One is the victims’ code and the other is victim support services. First, there are important improvements to the effectiveness of the existing victims’ code, which sets out what victims are entitled to expect from the criminal justice system, as last updated and improved by this Government in 2021. The principles underlying the victims’ code are now set in statute for the first time—that is in Clause 2. Clause 6 requires the police, the CPS and other criminal justice bodies to promote awareness of the code and to keep under review how victims’ services are provided. Clause 7 requires police and crime commissioners to oversee those victims’ services and to report their findings to the Secretary of State, who in turn must publish compliance information, so that all may see how their local area is performing. This combination of enhanced statutory duties on the one hand and significantly increased transparency on the other hand will secure that victims are aware of their rights and that the victims’ code is even more effective.

Secondly, on the important question of victims’ support services, Clauses 12 and 13 require the local police, local integrated care boards—namely, the National Health Service—and local authorities to collaborate to prepare and publish a strategy for delivering victims’ support services in their area as regards criminal conduct consisting of domestic abuse, sexual conduct or serious violence. They must assess the needs of their area and indicate whether they are met. Again, those strategies must be published.

In essence, this is an anti-silo provision. Experience shows that a number of agencies operating locally do not always join up sufficiently, and they certainly do not, on the whole, develop joint strategies. The provisions are designed to break down silos and to foster join-up and transparency. They should lead to better planning, better provision of vital services and the identifying and filling of any gaps.

On a related point, victims are sometimes discouraged from coming forward for fear of intrusive investigation of their personal lives. Clauses 24 and 25 now limit requests by the police to obtain information about victims from other authorities—for example, information relating to the victim’s health, notes of therapies, et cetera—which might be used to discredit the victim in court. Those requests must now be limited to what is necessary and proportionate. This aims to curtail what has sometimes been an intrusive investigative overreach in the past.

The measures on victims in general in Part 1 are underpinned by the enhanced role of the Victims’ Commissioner, whose reports must be laid before Parliament and whose recommendations relevant authorities must publicly respond to. Further powers of joint inspection by His Majesty’s Chief Inspector of Constabulary, Chief Inspector of the CPS and Chief Inspector of Probation will further ensure that these measures take effect. In addition, there is the right of victims to go directly to the parliamentary ombudsman, rather than through their MP, as is the case at present.

All that reinforces what I hope your Lordships will see as a comprehensive effort to improve the position of victims, which is entirely in line with, and takes forward, this Government’s related work in recent years. That includes the Domestic Abuse Act 2021; the creation of the office of the domestic abuse commissioner, who, in the respected person of Nicole Jacobs, is already making a substantial mark; measures such as allowing pre-recorded cross-examinations so that the victim does not have to face the offender in court; the introduction of independent domestic violence and sexual violence advisers, about which the Bill provides further guidance in Clause 15; an increase in the money for victims’ support, which is now £140 million by 2024-25; and several other measures. No one who watched the dignified statements made by the family of Sarah Everard can be in any doubt of the importance of placing victims at the heart of our justice system.

That in essence covers Part 1 on victims. Taking the Bill in sequence, I move to a very specific victim situation: where one parent has killed the other. In response to calls for what has been called Jade’s law, Clauses 16 and 17 broadly provide that, where one parent is convicted of the murder of the other, the criminal court must, in most circumstances, make a prohibited steps order removing parental responsibility from the surviving, offending parent. The local authority, in whose area the child resides, must apply within 14 days to the family court to review that order. In other words, the last word will lie with the family court, which is bound to consider the welfare of the child as the paramount consideration.

I have spoken so far of provisions that typically affect a single victim or a small number of victims. Part 2 of the Bill moves to the situation where we have multiple victims, where there has been a major incident, and noble Lords will of course have well in mind Manchester Arena, Grenfell, Hillsborough and similar cases. Part 2 creates what has become known as an independent public advocate, or IPA, appointed where groups, very often large groups, of victims are affected by a major incident. It has become only too apparent that in the aftermath of such incidents, victims have nowhere to turn, no one to give them information and no one to deal with their needs or answer their questions. These provisions fill that gap.

Following government amendments during the passage of the Bill, the Government will appoint a standing advocate to advise the Secretary of State on the interests of victims of major incidents and their treatment by public authorities and submit and publish annual reports. These functions include advising the Secretary of State on what sort of inquiry should be held. Where there is a major incident, the Secretary of State may further appoint the standing advocate or another appointed advocate to carry out the functions indicated in Clause 33, which are: to support victims in the aftermath of that incident, in particular in relation to any subsequent inquest or inquiry; to help them understand the actions of the public authorities; to ensure victims’ views may be taken into account; and to provide support or advice to them, communicate with public authorities on their behalf, and assist them to obtain access to documents.

The broad idea is that the advocate will not themselves carry on a legal activity but can help and guide victims as to their immediate needs, how to get advice and/or legal aid and what sort of processes to expect. They can answer their questions and help them get answers to their questions from the relevant public authority, as well as advise as to what questions need to be addressed or raised before any inquest or inquiry.

An important aspect of this is that in advising the Secretary of State on the treatment of victims by public authorities, the standing advocate will be able to hold public authorities to account in relation to the Hillsborough charter, which, as your Lordships know, was signed by the Government on 6 December as part of the Government’s response to Bishop Jones’ Hillsborough report. On that day, the Lord Chancellor made a Statement in the other place setting out the Government’s response, which I repeated in this House that evening. The charter sets out in detail how public authorities are to behave, in particular putting the public interest ahead of the interests of their own organisation. I pay tribute to the noble Lord, Lord Wills, and many others in pressing for this reform—in particular, of course, the Hillsborough families, who have endured so much and whom I trust we all salute.

I come to Part 3 and Clause 40, inserted in the other place on Report, which provides for the setting up of a public body to administer compensation to yet another group of victims: those affected by the infected blood scandal. I understand that a Statement is being made in the other place at this very moment by my right honourable friend the Minister for the Cabinet Office and Paymaster-General, and I further understand that that Statement will be repeated in this House tomorrow by my noble friend Lady Neville-Rolfe. I think that in those circumstances, I should leave that matter there for the moment. I am sure we will return to it in Committee. I am also glad to tell the House that my noble friend Lord Howe will be assisting us on this aspect of the Bill.

I turn finally to the “prisoners” part of the Bill, Part 4, although I suggest respectfully that this part of the Bill is as much about victims as it is about prisoners. We should approach this part of the Bill from a victim’s perspective. This part has the following aspects. First, there is the public protection test, to be applied where the Parole Board is considering the release of a prisoner eligible to be released on licence. Under the existing law, which is in the Crime (Sentences) Act 1997, the Parole Board must be satisfied that

“it is no longer necessary for the protection of the public that the prisoner should be confined”.

Clauses 41 and 42 of this Bill strengthen that principle by providing that the public protection test is met only if there is

“no more than a minimal risk”

that, if released,

“the prisoner would commit a further offence … which would cause serious harm”.

Serious harm is defined as the commission of one of the serious offences listed in Schedule 18B to the Criminal Justice Act 2003. This approach effectively tightens up the public protection test to be applied both to recognise public concern and, as importantly, to protect future victims.

Secondly, Clause 44 introduces a new procedure for the release by the Parole Board of prisoners convicted of murder, unlawful child death, terrorism, rape or rape of a child. If the Parole Board directs the release of such a prisoner, and the Secretary of State considers that such a release

“would be likely to undermine public confidence”

and that the Upper Tribunal might consider that the release test was not satisfied, the Secretary of State may refer the case to the Upper Tribunal for a further judicial consideration of whether the release test is, in fact, met. We saw only three days ago that a double murderer, Lawrence Bierton, was released again and then killed for a third time, having been released on licence. This new mechanism is aimed at that kind of case to protect victims—notably future victims—and ensure public confidence in the system.

Other provisions affecting the Parole Board include the inclusion of persons with law enforcement experience on Parole Board panels and provisions that the chair of the Parole Board should not sit on individual decisions and that the latter is removable by the Secretary of State in the event of a loss of public confidence.

I turn now to IPP prisoners, dealt with in Clause 48. Noble Lords will know of the difficulties arising from those imprisoned under IPP sentences, which were abolished in December 2012. They were described by the present Lord Chancellor as

“a stain on the justice system”.

At the same time, this issue poses an acute conflict between, on the one hand, the situation of the individual prisoner and, on the other hand, the protection of the public.

Any Government have to focus on the risk to public safety and the risk to future victims. In broad terms, the total number of IPP sentences ever imposed was just over 8,000. The present situation is that approximately 1,270 prisoners have never been released, and almost all have now served their original tariff. The only reason they have not been released is that the Parole Board has determined, often on several occasions, that they are not safe to be released. However, if an IPP prisoner is released on licence, under the existing law 10 years must elapse before they can apply to the Parole Board to determine that licence. There are about 3,100 prisoners on licence in the community and a further 2,920 have been recalled to prison. Sadly, there are 23 prisoners in secure hospitals.

The effect of Clause 48 is fourfold. First, the period before which an offender may be considered for licence termination is reduced from 10 years to three years from first release. Secondly, that three-year period does not reset in the event of a recall, so even if recalled a prisoner may, as it were, bank those three years from the date of first release. Thirdly, after those three years there is a presumption that the licence should be terminated. Fourthly, even if the Parole Board rebuts that presumption and maintains the licence, it automatically terminates after a further two-year period if the offender can do a further two years in the community without being recalled.

I know that this sounds rather complex but, in broad terms, the result is expected to be that over the next couple of years or so, the licences of the majority of those who are currently in the community will terminate. Many will terminate as soon as this Bill becomes law. For many if not most of the recalled population, when they are next released by the Parole Board, their licence will terminate after two years if there is no intervening recall. For those still in prison who have never been released—admittedly, a most difficult group but one that includes many violent and sexual offenders—there is now a detailed action plan by HMPPS that is much more specific to each prisoner, overseen by a specific IPP progression board and involving an external challenge group. The latter consists of representatives of the families, some of whom I have met together with the right honourable Damian Hinds, the Prisons Minister at the time. The relevant prison authorities will work on a bespoke sentence plan for each remaining prisoner as well as supporting those on licence in the community. I hope that your Lordships will see this twin-track approach—additional support for the unreleased and a substantial relaxation of the licence arrangements for those in the community—as marked progress in this difficult area.

Finally on prisoners, Clauses 55 and 56 prevent whole-life prisoners marrying or entering into a civil partnership unless exceptional circumstances exist. This is in response to a recent case in which surviving families of the victim of a most serious murder were openly mocked by the convicted offender, who trumpeted his right to marry, causing distress to many.

In conclusion, I hope your Lordships will accept that this is a balanced Bill that substantially enhances the position of victims in our system. After all, any one of us may have been, or may one day be, a victim. I commend this Bill to your Lordships, and I beg to move.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I thank all noble Lords for their contributions. I congratulate the noble Lord, Lord Carter of Haslemere, on his magnificent maiden speech. I hope your Lordships will forgive me but, following a five and half hour debate at a relatively high level, I do not wish to close my door now, having previously said it will remain open, by being too definitive on the various points we have discussed.

I will take briefly three points. First, I will have to come back to the issue of legislative consent, and we will need to explore it further, given the inter-relationship between the various authorities and responsibilities. I acknowledge the existence of that issue. Secondly, on the impact assessment, about which certain comments have been made, I have gathered during the debate that it probably needs to be looked at again and perhaps revised and expanded. That is another task to be completed. Thirdly, I gather that at Report stage in the Commons the Government gave an undertaking that restorative justice would form part of further guidance to the relevant authorities when commissioning various services. At the moment, that is as far as I can take the issue of restorative justice, important though it is.

Having made those preliminary points, I also add a brief word on scope. The Bill does not deal with what could be described as purely operational decisions by the police, such as the failure to make an arrest or not turning up to a domestic burglary or something of that kind. That is for another way of complaint, through the police complaints systems. The Bill does not address the difficult problems victims experience simply because there is a backlog in the criminal justice system. That is for another day. It also does not address—and I do not think it would be in scope to address—certain points made in this debate about sentencing and how we come to sentence offenders.

The first group of points made is about Part 1 and victims, with the essential point being that the Bill does not go far enough. In the Government’s view, the Bill goes a very long way. It is not just a gentle nudge, as has been suggested; it is a tremendous shove in favour of victims. It combines real efforts to change culture, greatly improve transparency and give proper statutory duties to various bodies, including police and crime commissioners and others, to get this organised. It requires cross co-operation and involves further resources.

As I think I said in opening, we have quadrupled the money available to victim services over the last few years. I take entirely the points made by, for example, the noble Lord, Lord Bach, that further clarification and development of these ideas could be very helpful. Others have said that bodies such as the Metropolitan Police, for example, would welcome further guidance, clarity and work on exactly how we can make this structure effective.

I think we all agree that we want to make an effective structure; the question is how to get there. At the moment, at least, to bring in a rather blunt statutory duty—in effect, a law giving victims further rights to sue and to bring in more lawyers, more legal proceedings and so forth—is not the right way to go, in the Government’s view. We do not want more satellite litigation. The real issue is how we effect cultural change.

How do we get there? The Government’s position at the moment is that this structure provides a very positive basis for effecting that much-needed cultural change, not least through the existence of transparency and, for example, the power of the Secretary of State to publish where local areas are on all these things and the powers of local police and crime commissioners to invigorate their local communities in all these respects. In the Government’s view, that is the way to go.

In relation to victims, there have clearly been many—perfectly understandable—references to particular kinds of victims, notably children. I briefly point out that child victims of crime and exploitation are encompassed within the Bill’s definition of a victim, and child criminal exploitation is in fact defined in statutory guidance for front-line practitioners in publications such as Keeping Children Safe in Education and Working Together to Safeguard Children. However, the point that we need to think very hard about is how we protect child victims, and it is certainly a point we should jointly further reflect on and consider.

Indeed, in relation more generally to women and girls in the justice system, victims of domestic violence, stalking, grooming and anti-social behaviour, and persons whose first language is not English, those are all examples of particular victims that we need to make sure are encompassed within our remit. Proper attention should be given to those particular kinds of victims. Those points are well made and, if I may briefly use an Americanism, will be taken under advisement.

In broad outline, that is the victims part of the Bill. As far as the IPA is concerned, the Government’s position is that this is a major advance, particularly the creation of a standing advocate who can advise the Secretary of State and, when appointed on a major incident, “look after” the victims. At the moment the Government do not think that it is useful to give this standing advocate a sort of roving power to conduct their own inquiries or demand their own documents and so forth, because of the risk—among other things—of real duplication in major inquiries such as Manchester Arena, Hillsborough or Grenfell. We already have very effective procedures. Bishop Jones’s inquiry was very effective; it was a non-statutory inquiry set up by the Government, and it got to the bottom of things. The Government are not convinced that we need yet another operator operating in this area.

I think that my noble friend Lady Sanderson asked about smaller incidents. Let us take an incident such as the Shoreham air disaster, where 11 people were killed. Leaving to one side the question of whether that was a major incident, in that example there was the Air Accidents Investigation Branch, a criminal case and an inquest. Do we really need yet another body investigating, demanding documents and imposing more costs on the whole system? The Government are not yet convinced, certainly at this stage, that we should go any further than we have gone in the Bill, which is already a very long way. That is the general position of the Government at the moment.

I listened very carefully to noble Lords, particularly the noble Lord, Lord Meston, on the issue of parental responsibility and whether we should go further and include other cases. There are already procedures for effectively taking away, or at least hollowing out, parental responsibility that exist in family law in the family courts and the Government do not feel that we should go any further at the moment.

On infected blood, noble Lords will be able to ask questions of my noble friend Lady Neville-Rolfe tomorrow when she updates the House on the Government’s position. I have no doubt that we will come back to that in the fullness of time in Committee.

On IPP prisoners, the present proposals, I hope and trust, will deal quite effectively with prisoners who are currently in the community and who have a prospect of being released—I think they will deal with that. I think that we all recognise that our real problem is the hard core of about 1,200 prisoners who have not been released. It is very important to say that the Government have not given up on those prisoners. In the last two years, 400 prisoners who had not previously been released have been released. There is very detailed work going on in the Prison Service; I am very happy to share with noble Lords more detail about that, if it is of use. It relates to particular sentencing plans for particular prisoners, so that they have an individual sentencing plan for further support in the community when they are released, and for a much more active IPP progression programme. So we are still working towards the release of these prisoners when it is safe to do so. The Government currently see that as a much more sensible and justifiable approach than the alternative of the re-sentencing exercise.

As noble Lords know, the basic problem with the re-sentencing exercise is that you are raising expectations that people will be released. But the people we are dealing with have been found not to be safe to be released, so how are we going to tackle that? Are we going to take the view, “We’ll just release them”? As in the case of Mr Bierton that I mentioned in my opening speech, do we say “We don’t care whether further offences are committed by these highly dangerous people, we’re just going to release them because that is what justice demands”? The Government ask: what about future victims? What risks are you taking; is it worth the risk; can you take the risk? The Government are not prepared to take that risk. But they are prepared to work very hard for these prisoners, to give them at least some hope of an eventual release. That is the Government’s present position on these issues.

[Lord Moylan (Con)]

My Lords, it is with the greatest respect that I intervene on my noble and learned friend. I genuinely congratulate him and welcome his personal and very human engagement with this problem, which I know he has wrestled with the whole time he has been a Minister—I think it is fair to say that it has always been on his agenda. But I add, in fairness, that the Prison Service releases daily people into the community who would be assessed as dangerous if the Government had the option of retaining them in custody. That is because they have reached the end of a definitive sentence.

It is a risk that we have learned to manage. It does indeed occasionally go wrong—of course it does—and there are future victims; the point made by my noble and learned friend is not empty. However, we manage it. The fact is that of these people we are discussing, very few committed crimes that were egregiously heinous or violent, compared to many others who have, before and since, being given determinate sentences that see them released into the community at the end of that sentence, if not earlier.

[Lord Bellamy (Con)]

My Lords, my noble friend makes a perfectly fair debating point—and we are debating, so it is perfectly fair that he makes a debating point—but it is a debating point at the end of the day. The point is: are you prepared to take the risk of 1,200 dangerous people being released from prison? The Government are not prepared to take that risk. We can of course discuss it further, but I am just explaining what the Government’s position is: it is better to work with those prisoners to ensure that they are safe to release eventually.

That probably takes me on to the issue of public protection and related issues. First, perhaps I may clarify what seems to be a muddle that has arisen about the statement in the Bill that it is compatible with convention rights. The Bill is perfectly compatible with convention rights: it does not take away any convention rights at all. Section 3 of the Human Rights Act is a procedural provision only, which gives the court an—to use a neutral word—unusual power to reinterpret what Parliament has said in a manner that may not have been and probably was not Parliament’s original intention so as to render a particular provision compatible with the convention.

On the provision in the Bill disapplying Section 3, which at least one member of Sir Peter Gross’s commission thought we should get rid of, and on other parts of Section 3, Sir Peter himself recommended a rather complicated hierarchy of different ways of applying the section. It has been quite a difficult section to apply. Case law has gone all over the place over the years, although it has settled down more recently. It introduces uncertainty where the Government want to have certainty in this area: that this is the test for public protection for these prisoners, that is what Parliament has said, and that is the end of the matter.

If that was found to be incompatible with the convention in any case, hypothetically, the court would have to make a declaration of inapplicability, and Parliament would have to deal with it. But the underlying issue is the constitutional balance between the courts and Parliament. That is quite an issue, and it has not gone away, but that is how the Government understand this particular point.

As regards the question of the Parole Board and all the various provisions affecting it, it is worth making the point that when these very high-risk offenders are released, they live in the community. Who speaks for the people in the community who have to live with them? Are they represented at all in this system? The only person who can represent the interests of the community with whom released prisoners have to live is the Secretary of State. All we are doing is saying that if there is some doubt about the application of the public protection test, it is wise from the point of view of the system—

[Baroness Chakrabarti (Lab)]

I am sure that the noble and learned Lord understands the irony of that statement, set against his statement that victims’ rights should not be put on a statutory, enforceable footing.

[Lord Bellamy (Con)]

I am not sure that I entirely understood the noble Baroness’s point, but it is perfectly true that I am thinking—rather, the Government are thinking; I should not put it in personal terms—about the potential victims of people who have been released and the actual families of those who have suffered at the hands of the offender. We are simply saying that there might be some very high-profile cases where it is sensible for there to be a second judicial look. That is a very much modified position from the position originally in the Bill, but it is, I hope, a sensible one.

I have used up my time, but I hope that I have covered most things. I apologise to noble Lords whose specific points I have not met. Anyone is fully entitled to write to me or ask me questions and I will, of course, answer them. If I may just finish with the words of the right reverend Prelate the Bishop of Manchester, who was kind enough to say he was going to be kind to the Bill. Let us be kind to the Bill and—

[Baroness Brinton (LD)]

It is very generous of the Minister to say, as he has done with other Bills, that we should write to him with concerns, but given that he said at the start of his response that he was going to take a high-level approach, it might be helpful if he were to write to all of us about the issues we have raised. There might then be a subsequent correspondence. However, if we are thinking about tabling amendments, rather than waiting for us to write and say, I think he has most of our questions.

[Lord Bellamy (Con)]

I warmly thank the noble Baroness for that intervention. I will ask my officials to go through this debate, identify at least the principal questions and see whether we can write to the House on the various points that have been made.

On that note, given the season of the year in which we find ourselves, we may not quite have reached

“Peace on earth, and mercy mild, God and sinners reconciled”,

but I hope we have taken the matter forward. I beg to move.

Bill read a second time.

Moved by

[Lord Bellamy]

That the bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the bill in the following order:

Clauses 1 to 42, The Schedule, Clauses 43 to 62, Title.

Motion agreed.

Victims and Prisoners Bill

Lord Bellamy Excerpts

Committee stage
Wednesday 24th January 2024 Lords Chamber

[Lord Hampton (CB)]

My Lords, I apologise for my lateness—I got slightly confused about the Northern Ireland Bill and when it was coming.

I will speak to Amendment 4 in the name of my noble friend Lord Russell. I follow my noble friend and the noble Baroness, Lady Newlove, so there is very little more to be said. The only thing I can say is that ASB is so important. ASB is far more common than we know and far more common than the police will say. It must be taken seriously. I have a friend whose father was the victim of ASB over many years and actually snapped. He attacked the person who was causing it and ended up with a custodial sentence himself. So you can turn victims into perpetrators with this and it needs to be defined in this Bill.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I thank noble Lords very sincerely for their most moving and constructive speeches. I will first respond to the invitation of the noble Baroness, Lady Thornton, to conduct these proceedings in as open and consensual way as possible. In the other place, my right honourable friend Minister Argar did precisely that, and I propose to follow exactly the same approach, and to discuss as widely as we can the various difficult issues that are in front of us. That is an essential function of this Chamber.

To a great extent—I think my noble friend Lady Newlove accepted this, up to a point—we have made very considerable progress in support of victims generally over the last few years. But the problems that remain are, in particular, that victims are still often unaware of their rights, that the required services are not provided, or that the relevant authorities are not accountable. So the questions in front of us are not so much points of principle as questions as to how we change the culture of a system to make sure that victims are properly supported, as they should be.

I suggest, in shorthand, that essentially we should seek four things. First, victims should be aware of their rights and entitlements under the code. Secondly, those services should be accessible. Thirdly, those responsible for providing them should be accountable. Finally, the system should be affordable; speaking on behalf of the Government, I am bound to make that point. Essentially, we have four As: awareness, accessibility, accountability and affordability. It is within that framework that I will respond to the various points that have been made, with great conviction and sincerity, about the definition of “victim” in the current draft of the Bill.

We are dealing with five questions all together. One is about carers and those who suffer vicarious harm, which is raised in Amendment 1 in the name of the noble Baroness, Lady Brinton. The second is about people who have been victims of a defendant who has subsequently been made the subject of a hospital order as distinct from another criminal sanction. Thirdly, there is the question of anti-social behaviour. Fourthly, there is the question of homicide abroad. Finally, where the criminal conduct has been caused by another family member, there is the question of whether they are still a victim; that is raised in the amendment by the noble Baroness, Lady Jones. I will take those points, and probably in that order.

As regards Amendment 1, moved by the noble Baroness, Lady Brinton, as I read it, the definition of “victim” is not confined in its present form to victims of serious sexual or violent behaviour; it is very broad, extending to all crimes. It refers first to persons who have been subject to witnessing a crime. The Government’s position is that those who have witnessed a crime are already covered fairly explicitly in the definition in Clause 1.

That takes us on to the difficult question of how far you go on the carers of victims and others who have suffered indirectly rather than directly. On that point, the Government’s present thinking is that we should have a system that serves the direct victims primarily, and that we cannot, at this stage at least, extend the definition of a victim too far. If I may say so, there is force in the points made by the noble Baroness, Lady Fox: if one makes the concept of a victim too wide, one may well finish up with a system that is not as workable as it otherwise would be. There are all kinds of people who are, in one sense, victims but who are not necessarily the direct victims to whom we must give priority. The job of a Government is to make decisions as to how to prioritise services. We are very pressed on resources on all fronts, so I urge your Lordships to take that point into account and to consider that the definition of victim in Clause 1 is already very wide. I will come to certain points made in that connection in a moment. It would not be the right approach, by statute, to extend that already broad definition any further than it is. Broadly speaking, that is the Government’s position on Amendment 1.

On the point about hospital orders in relation to Amendments 8, 12 and 19, the question is whether the victim is a person who has been subject to criminal conduct. A person may well be the perpetrator of criminal conduct but still finish up being ordered by the court to be detained in a secure hospital, rather than serve a criminal sentence. The Government’s position is that many of the victims whose perpetrator has finished up in front of a mental health tribunal are already victims under the Bill. They are covered so long as the conduct is criminal. Your Lordships may have seen the tragic case in Nottingham this week, where the defendant, who was clearly schizophrenic and should never have been on the streets, was convicted of manslaughter on the grounds of dismissed responsibility. It was criminal conduct, so those unfortunate families are victims. The point that is rightly made—

[Baroness Watkins of Tavistock (CB)]

If the Minister would not mind giving way, I will clarify—I am sure that this is what he meant—that there are many people who are successfully treated for schizophrenia who live in the community. I think that he is referring to an individual who was very ill and who sought the charge of manslaughter yesterday because of diminished responsibility. I would not want the impression to be given in Hansard that people cannot live their lives—quite challenging lives—with schizophrenia in the community.

[Lord Bellamy (Con)]

I entirely accept that point. I have in my own family direct experience of a similar situation. That particular individual had already committed a number of crimes and there was a warrant out for his arrest. That is a very specific case and that is the context in which I made my comment.

On the assumption that, in many of these cases, we have someone who is already a victim under the meaning in the Bill, the problem rightly identified is that the procedures of the mental health tribunal do not, at the moment, quite correspond to the procedures in the main courts, particularly on the right to give a victim statement. The Government’s position is that that is not a satisfactory state of affairs; they are working with the authorities in the mental health tribunal and others to operationalise how we have the same system for mental health tribunals as for the main courts system. I hope to be able to give your Lordships further information that will enable your Lordships to say that this point—which is rightly being made—is being addressed by the Government. As soon as I am in a position to give further information about that, I will. The point of principle that a number of noble Lords have made is accepted; there is no dispute about that.

We then come to the equally difficult question of anti-social behaviour. Again, the first question is whether the victim has been subject to criminal conduct. Strictly speaking, whether or not the police have taken any action is not decisive of the question of whether the conduct is criminal. It may well have crossed the criminal threshold and, if it has, the victim should be entitled to relevant circumstances.

If the conduct has not crossed the criminal threshold, that is a more difficult situation because the scope of the Bill is victims of criminal conduct, and it is quite difficult for the Government, at least at this stage, to contemplate bringing within the scope of this Bill conduct that is not criminal. But a lot of anti-social behaviour is criminal, so how are we going to tackle this? Again, I am not in a position to give your Lordships as much detail as I would wish, but there will shortly be before your Lordships the Criminal Justice Bill currently making its passage through the other place, which will tackle and address a number of legitimate concerns about anti-social behaviour by enhancing the powers available to the police and other local agencies under the Anti-social Behaviour, Crime and Policing Act 2014.

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[Lord Bellamy (Con)]

My Lords, I entirely accept the points that my noble friend is making, and I am very happy to have a further meeting to discuss this, the interrelationship between the bits of legislation that we are dealing with, the interrelationship between the various authorities and who exactly is responsible for what.

[Lord Russell of Liverpool (CB)]

My Lords, to further emphasise that, I think it would be helpful to the Committee to recognise the sheer scale of anti-social behaviour. Some freedom of information requests looking at the period between 2019 and 2021 identified that, believe it or not, there were 3.5 million reports of anti-social behaviour, so it is on a similar scale to stalking on an annualised basis. Those are probably the largest two areas of cases involving victims across England and Wales.

Those statistics were done across 34 out of the 43 police forces. They demonstrate the huge variability across the country, police and crime commissioner by PCC, and police force by police force. That is the problem. Some areas are doing really well with existing resources, without needing extra money. With proper leadership, organisation and training, they are doing a really good job. Kudos to the Government and the Minister for achieving good results in some areas. The challenge for the Government is: what is the problem with taking action to ensure that is replicated efficiently and systematically right across England and Wales? The evidence is clearly that it is not. If the authorities can do it within existing resources, we are not talking about huge amounts of extra money. That is not the issue; the issue is the way they go about what they do.

[Lord Bellamy (Con)]

I am grateful to the noble Lord for that intervention and entirely accept the point he makes about the variability across the country. Although this evening we are not on Clause 6 and supplementary Clause 11, for example, or Clause 10, about code awareness and reviewing compliance by criminal justice bodies, one of the main drivers of the Bill is to raise the standard of victim support equally across the country; to publish league tables; to have the data; to put pressure, if you like, by almost shame and stigma on those that are not performing as well as they should so that it is publicly known; and, in extreme cases, to give directions that they need to improve and so forth.

The steps we need to think about are how we make the various parts of the legislation consistent and operational, what role the code plays in anti-social behaviour when it is criminal conduct, as it often will be, and how we operationalise the way in which particular police forces and other agencies offer consistent services across the country. That is my thought on this point.

[Baroness Brinton (LD)]

On this particular point about anti-social behaviour, Louise Lotz was a friend of mine. The problem was that her local police force did nothing about the earlier stages of anti-social behaviour. One of the things that this amendment is trying to achieve is that police forces just watch the pattern of anti-social behaviour; if they see it going up, their response should also start to change. I wonder whether the Minister will take that into account. I look forward to joining any meeting about that as well.

[Lord Bellamy (Con)]

I certainly take that into account. I again think that we collectively need to understand a little more about what the Criminal Justice Bill progressing through the other place is doing about this, because the problem of anti-social behaviour is that it exists and is not being controlled. That Bill is trying to address that problem. Here we are dealing with the victims, which in some ways is the end result, rather than the fact that it is happening in the first place, so tackling it and what is happening in the first place is probably a very important aspect that we need to understand further. I take all these points, and I think we should take it further collectively as soon as we can.

Then we come to the difficult issue of homicide abroad. I hope that nobody infers that the Government do not have enormous sympathy for those who suffer these very difficult situations, but I respectfully suggest that a crime of homicide committed abroad is in a slightly different category, as far as the victims’ code is concerned, from a crime of homicide committed in this country. Clearly, the various rights under the code —for example, the right to make a victim statement—as well as the nature of the offence, what the criminal processes are and so forth are rather different if we are talking about a crime that has been committed in South America or somewhere outside this country. The responsibility for looking after victims of homicide abroad falls primarily on the Foreign, Commonwealth and Development Office, which offers support through the homicide service. Noble Lords may well say that it is not adequate support or enough support.

[Baroness Newlove (Con)]

I have worked with the Foreign Office on this as well, and every time I have gone there, its first point of call is “We don’t have many resources; there’s not much money; we make the money from passports; it is only a small number of families that come through”. If we keep putting it to the Foreign Office, it will keep batting it the other way. Not only are we talking about families dealing with countries with different languages which are trying to get financial gain and who also have jobs to hold down but we have a Foreign Office that really does not do much for them and they feel lost. I appreciate what the is Minister saying, but I think it is about resource. I am not asking for lots of resources, but I want them to work collaboratively to help those families resolve the issues.

[Baroness Finlay of Llandaff (CB)]

If there has been a homicide abroad and those families are living here, there is a real danger that the message will be that the Government think that that homicide does not matter as much as a homicide that happened here. The Government might say that they do not have the resources. I pointed out that it is about 80 homicides per year—the numbers are not huge—but those people who are so severely traumatised, retraumatised and carry on being further damaged by the experience often become enormous consumers of resources because of mental health services, because they are unable to work and so on, and eventually they may need benefits. There are all kinds of things that they may need. It is a false economy to look at it in terms of resources to the FCDO. I hope that the Minister will meet me and others to discuss ways that the victims’ code could be asterisked where there are things that may not be as appropriate if the homicide occurred here, but it would say that the lives of British citizens are of equal value wherever they are in the world and that whether it was a terrorist attack, a homicide here or a homicide overseas, those lives are of equal value.

[Lord Bellamy (Con)]

My Lords, of course I am prepared to meet the noble Baroness, Lady Finlay, and any other noble Lords on this point to discuss it further. There is certainly a point about the signposting in the code, what the code should say about all this, whether we should give further additional priority to homicides abroad, and exactly what the role of the Homicide Service is and other related resource issues, as well as where the earlier point I raised about priorities comes in: we cannot do everything. This is an important topic for further discussion, and I do not rule out examining further how far we can go in response to the very legitimate concerns raised.

I hope the noble Baroness, Lady Jones, will forgive me for coming to her last, but I think her point was about the definition of a victim where the person is a victim as a result of the criminal conduct of a close family member. The obvious example would be a road incident where somebody who had been driving over the limit or driving dangerously had killed themselves, leaving behind bereaved children. On the wording of the code, those children would be victims. The Government do not think that even in those circumstances should we reduce or limit the concept of a victim. It is conceivable that somebody could be a perpetrator and a victim at the same time, because if you have driven dangerously, had a crash and killed your child, you may both be guilty of criminal conduct and a victim of your own conduct, as it were. That may be a highly theoretical and hypothetical example, but the Government are not proposing any change to Clause 1 in relation to those very tragic kinds of case.

I hope I have dealt with the main amendments proposed in this first group, and I respectfully invite your Lordships not to pursue them at this point.

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[Baroness Brinton (LD)]

My Lords, on these Benches we add our thanks to the Children’s Commissioner for her very helpful round table and briefing notes. We also thank Hestia. I thank other noble Lords for their amendments, which specify children in the definition of a victim. The noble Lord, Lord Ponsonby, and my noble friends Lady Hamwee and Lady Benjamin made strong arguments to include who victims of abuse and criminal exploitation are, as well as those who are victims of modern slavery or human trafficking.

The amendment in the name of the noble Lord, Lord Hunt of Kings Heath, is a salutary reminder that children can be damaged by verbal harm. Intense and repeated verbal abuse is damaging. That is somewhat different from the point the noble Baroness, Lady Fox, was trying to make, which was about young people having arguments about matters of principle and offence; that is not what we are talking about.

Some years ago, I lived next door to a family who used the most extraordinary bad language to their toddler, time after time. The example I can just about repeat in your Lordships’ House was his name, which was “Paul, you little bleeder”. It went on, from worse to worse. As he grew up, we heard his own language mirroring that of his parents. One of the reasons that the noble Lord, Lord Hunt of Kings Heath, is right to propose this is that a child like that needs help and support from other agencies, as do his parents. It can be within a house, or it can be separate, but it is very different from the argument the noble Baroness, Lady Fox, was trying to make, and I hope she would accept that.

In a later group, probably next week, we will come to a group with much more detail about the protection required for child victims. All these amendments would ensure that definitions at the start of the Bill recognise that child victims have as many needs as adults. Agencies need to remind themselves that child victims may not always present in the same way as an adult and may not always need the same services as an adult. As the right reverend Prelate the Bishop of Manchester said, the lessons of Rochdale show that too many agencies do not always see children as victims. There, I am afraid that the police and some other agencies saw them as perpetrators. That is absolutely unacceptable.

I apologise again to the noble Baroness, Lady Fox, but I am picking up on the arguments she made about the lack of sympathy from officialdom and police. She went on to argue that it is important that people recognise that these children are victims. But this is not about sympathy; it is about getting help and support for these children. Sympathy may be part of it, but these amendments are not put forward to get sympathy for children; it is to change their lives, and to recognise that they are victims and will need specific services thereafter.

I am mindful of Nicky Campbell and others who were abused at the schools he attended and how their experience of not getting support early in their lives has affected them for their entire lives. This is not just an issue about children; it is about how those children grow up and manage their own lives. As I said at the end of the previous group, one can save money in the longer run on services by ensuring that victims—in this case child victims—get support as early as possible.

Finally, I echo the points made by my noble friend Lady Hamwee in Amendment 7 on the child victims of modern slavery or human trafficking. Hestia’s briefing was very helpful in reminding us that everyone in a family unit, especially the children, is affected by modern slavery and human trafficking, the consequences of which have long-standing impacts. So it is becoming clear from all parts of the House again that we need a separate definition of child victims. Their experiences, needs and the services they seek are all different.

[Lord Bellamy (Con)]

My Lords, I thank all noble Lords who have contributed to this very important debate on how we assist, support, improve, validate and value children who have suffered various kinds of abuse. The question—I respectfully suggest it is a somewhat technical question—is whether we need to amend this Bill, whether we should do it through further sections of the code, and how we should approach the problem.

The Government’s position at the moment is that a child who is a victim of abuse and exploitation which constitutes criminal conduct is already a victim under the Bill. So the large numbers of children, rightly referred to, who have apparently suffered domestic abuse in the past—children who have been through the recent domestic abuse inquiry and so forth—would, in the ordinary meaning of words, I think, have been subject to criminal conduct under Clause 1(1)(a). As the noble Lord, Lord Meston, pointed out, a child is undoubtedly a person, and the Government’s position is that this is very largely covered.

The phrase “child criminal exploitation” in itself implies someone who has been exploited by criminal conduct—which is already covered. So I hesitate to recommend to your Lordships that we need to further complicate the Bill itself, or the Act as it will eventually become, one hopes, by having further definitions. I accept the point made by my noble friend Lady Sanderson that there probably is some confusion at the moment in some of the guidance out there, and there is probably a great deal of inconsistency in how it is applied by different authorities in different parts of the country. As I said earlier, one of the purposes of the Bill is to ensure a much more even and consistent approach across the country by all relevant agencies.

It is important to clarify two things—and I respectfully suggest we should do this in the code rather than the Bill. The first is that we need, perhaps, to clarify that the phrase “criminal conduct” in the Bill does not imply that there has been a prosecution, let alone a conviction. It is whether, on the facts, this is a person who has suffered from the relevant conduct. Secondly, I suggest to your Lordships—and I cannot officially commit the Government tonight because I do not have the authority to do so—that we need when revising the code to have a detailed section on children, and special reference to the particular problems that have been rightly raised tonight, so that everybody has full guidance on what they are supposed to do with child victims of various kinds. That is probably a more apt way of proceeding than trying to redefine what we are talking about in the Bill. With the greatest respect, I suggest that “child criminal exploitation” is a somewhat difficult concept to define.

I could add that the act of manipulating, deceiving, encouraging, coercing or controlling a child almost certainly amounts to a criminal offence in itself—it does under Part 1 of the Modern Slavery Act, and we have been talking about modern slavery. We also have the wide terms under the Serious Crime Act 2007, in which encouraging or assisting an offence is also an offence. So I respectfully suggest that almost all the examples one can think of are already covered by the definition of “victim” in other Acts. At the moment the Government are not persuaded that we should be tinkering further with this particular definition, but I see the force of the argument that we need to have special mention and explanation as regards children when we come to revise the code and the guidance that accompanies it, and the duties of the various agencies to provide their services.

I suggest that the same broad analysis covers the important point raised by the noble Lord, Lord Hunt of Kings Heath, in relation to verbal abuse. It is already in Clause (1)(4)(a) that “harm” includes physical, mental, emotional or economic harm. I think that most kinds of verbal abuse are covered—but, again, this is a matter that is more for the way one drafts the code than it is for the Bill itself. That would be, I think, the Government’s position at the moment.

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[Baroness Hamwee (LD)]

My Lords, I did not quite catch what the Minister said when referring to Clause 1(2)(a). Was he saying that a child who is the child of a victim of modern slavery will fall within

“seen, heard, or otherwise directly experienced”?

I am not sure what “directly experienced” extends to. Is his argument that the child of a victim of this particular crime would fall under Clause 1(2)(a)? I am sorry; the Minister talked about it but I did not quite hear.

[Lord Bellamy (Con)]

My Lords, I think that is the Government’s position. In most cases the child will experience the effect of criminal conduct, that being the effect on the mother. That is a sufficiently direct nexus, as it were, to bring it within the scope of the clause.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have spoken on this group. The gist of the Minister’s summing up is that he believes that all the examples given in this short debate are already covered in the Bill. I think he said that there may be a detailed section in the code covering children; I understand that that was not a firm commitment but, nevertheless, it is a step forward.

The Minister gave a number of examples of why the Government want a more explicit recognition, but I gave a specific example where I argued that the black-letter law on the recognition of children could—and does—affect the accessibility of victims’ services. When local authorities look at how to allocate services, there is potentially a hierarchy there. We think that children should be at the top of that hierarchy, equal to domestic abuse victims; that was the specific example that I gave to the Minister.

Nevertheless, this has been an interesting debate on which I and others will reflect. I agreed with every word of what the noble Baroness, Lady Brinton, said about my noble friend Lord Hunt’s amendment. He clearly tabled it to raise awareness—one of the Minister’s four As—and he has effectively achieved that goal. I will be interested to see whether he wishes to take it further. For now, I beg leave to withdraw my amendment.

Victims and Prisoners Bill

Lord Bellamy Excerpts

Committee stage
Wednesday 31st January 2024 Lords Chamber

We had a good exchange last week about the importance of restorative justice, which the noble Lord, Lord Hodgson, mentioned just now. I think we all agree that of most importance are the use of the word “appropriate”, and making sure that those services are properly resourced and supported to ensure that this happens. We are keen to support these amendments, and I look forward to what the Minister has to say.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I thank all noble Lords who have spoken to this group of amendments. The Government appreciate the considerable work that goes into preparing amendments and arguments and bringing issues before this House.

By way of a brief reminder, in general terms the Government have a threefold approach to the Bill. The first is to set out general principles of the victims’ code included in Clause 2(3), supplemented by regulations in subsection (4). The second approach is to put the detail and the operational information that victims need in the code, rather than in the Bill. I commend to your Lordships the latest draft version of the code, published in June 2023, which sets out the 12 rights in a particularly user-friendly way. The third approach is to create a system whereby victims are aware of the code, and the relevant criminal justice bodies comply with their obligations under the code. The mechanism for this is set out in Clauses 6 to 10, supplemented by guidance under Clause 11.

I have reiterated that framework because, in the Government’s view, a lot of the debate we have had today is about what should be in the Bill and what should be in the code, in guidance or elsewhere in the framework. There may be no disagreement in principle about the importance of many of the things we are discussing, be it restorative justice or the right to object to a charging decision, but the question we are on now concerns the way the Bill should be drafted. The broad view of the Government on most of the amendments in this group and subsequent groups is that the matter is either already covered in the code or should be covered in the code, rather than being expressly on the face of the Bill. That is the Government’s broad position.

Turning to the amendments, I take first the amendment moved by the noble Baroness, Lady Gohir, relating to multiple perpetrators and the fact that in some cases if only one perpetrator is charged, the victim may be aggrieved because other perpetrators were not charged. First of all, this is a good example of how it should work; the principle of a right to challenge, from the victim’s point of view, is set out in Clause 2(9). The implementation of that principle in this context is in code right 6, which refers to the victim’s right of review scheme in respect of various police and CPS decisions. The noble Baroness rightly draws attention to an apparent lacuna in the CPS part of the scheme, which currently does not cater for the situation where only one of several perpetrators is charged. The Government are very happy to look again at that issue and to discuss with the relevant agencies how that lacuna should be addressed.

As the Government see it, this is a very good example, rightly drawn to public attention, of a possible gap in the code that should be addressed by making improvements to the code rather than putting the issue directly in the statute. The draft code itself, in its present form, will be subject to further consultation anyway under Clause 3 if and when the Bill is passed. That is essentially the Government’s position on Amendment 13.

I take next the important issue of restorative justice, of which the Government are wholly supportive. Amendment 14, in the name of the noble and right reverend Lord, Lord Harries, and Amendments 16, 17, 22, 32 and 52, in the name of, in particular, the noble Baroness, Lady Bennett, aim to ensure that on the face of the Bill victims should have access to restorative justice—that is the broad thrust of it—and that the Secretary of State should issue guidance about that.

The Government entirely accept that restorative justice is extremely important; again, I salute, if I may, the words of my noble friend Lord Hodgson in raising this issue so eloquently. However, important though it is, the Government do not feel that restorative justice should be elevated above all the other victim services by being specifically included in the Bill. Once you start including specific services in the Bill, either you have a very long list or you have to prioritise certain things. The Government’s view is that the structure should be that the Bill contains short principles, and almost everything else is in the code or guidance. To do otherwise is to introduce rigidity and might have the somewhat perverse effect of concentrating what are admittedly limited resources on some specified kind of support at the expense of other, equally valuable, kinds of support.

[Lord Harries of Pentregarth (CB)]

I think we are all very sympathetic to the idea that a huge amount could go in the code and the guidance, certainly as far as restorative justice is concerned. But the third part of what the Minister said the purpose of this Bill was is to ensure that the criminal justice system knows what its responsibilities are. Surely some things could go in there, including restorative justice. Will the Minister look particularly carefully at the evidence produced by the noble Baroness, Lady Newlove, about how at least 27% of people would have taken up restorative justice if they had been asked? Would he not come to the conclusion, perhaps, that it is only if it is on the face of the Bill that that situation will be remedied?

[Lord Bellamy (Con)]

My Lords, as the noble and right reverend Lord invites me, I will look again at that evidence and the whole argument. However, in relation to this aspect, noble Lords should be aware that access to all the supporting services and processes in the criminal justice system are already part of the principles under Clause 2(3). In the implementation of those rights, access to justice is already specifically provided for under right 3 in the present draft code, which, among other things, requires the police to provide all the information you need to exercise that right.

[Baroness Brinton (LD)]

My Lords, the problem with Clause 2(2) is that it is followed by Clause 2(3), which starts by saying, “The victims’ code must” but then in all its sub-paragraphs says simply that things “should” be provided, so it is watered down. I apologise for being pedantic on this point but it goes to the heart of what the Minister is trying to do. I believe he is saying to us that there is enough in the Bill that will support victims in regulation, but the problem is that there is no watertight “must” in the Bill as it stands.

[Lord Bellamy (Con)]

My Lords, I think we will come to the “must”/“should” point a bit later when we discuss the amendments proposed by the noble Baroness, Lady Chakrabarti. If I may, I will deal with that issue in general, in an umbrella way, in that context.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I want to pick up the point made by the Minister about victim services going into the code rather than into the Bill. I feel I should apologise that although I have three degrees, none of them is in law—I often regret that these days—so perhaps I am wrestling with some technical questions here.

It seems to me that we are not just talking about restorative justice as a victim service. If you have been a victim of a crime, it goes to court, the police investigate and the criminal is punished; all those might be regarded as victim services but they are all in other Acts—they already exist as an absolute legal right that is laid down. What we do not currently have in any Bill is a right to restorative justice that is balanced. We are saying that restorative justice needs to be in there with an equal or at least appropriate level of weight, and it will not have that unless it is in the Bill.

[Lord Bellamy (Con)]

My Lords, if I may say so, what one should put in the Bill and in the code are matters of judgment and balance. In relation to restorative justice, which we are on, there have already been extensive discussions in the other place. The Government have said, first, that the code should include the right of victims to receive more information about restorative justice, particularly at the point of sentence, and that the importance of restorative justice services should be included in guidance to police and crime commissioners under Clause 11. I think that partly meets, and maybe substantially meets, the point made by the noble and right reverend Lord, Lord Harries, that you need to have in writing somewhere an emphasis on supplying restorative justice. The Government’s position on restorative justice is that that is a proper recognition of the importance of restorative justice.

One should also bear in mind in this context that restorative justice does not just happen; it also needs the consent of the offender, and is quite a delicate operation. You need a facilitator, and so forth. It is one of many services, mechanisms and procedures that are available. The Government’s position is that we should not spell out in the Bill all the mechanisms and procedures that are available but we should work hard to ensure that the code itself, the guidance thereunder and the arrangements for awareness that we will be discussing in due course together raise the profile of restorative justice so that it has its proper place in the system among other things. That is the Government’s position. No one is denying the importance of restorative justice. No one is saying it is a waste of time or should not be there; on the contrary, we are saying that its profile should be raised. The only argument is about how we do that, and Government’s position is that we do not do it by an amendment to the Bill itself.

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[Baroness Hamwee (LD)]

My Lords, I am quite a localist normally, but is this not the very point? A single point of contact that is not prescribing what is available locally but is “signposting”—to use the right reverend Prelate’s word—should be provided, so that any victim, anywhere, will know where to go. They might not necessarily take the step of taking advantage of it, but it seems to me pretty central to the way services are made known that something such as this should go into the Bill.

I should also say that my noble friend Lady Brinton was trying to email me something, but it has not come through, so she may have another point.

[Lord Bellamy (Con)]

I shall not be attempting to answer the email that has not yet come through until it does, but my general answer to the noble Baroness is that the whole thrust of the Bill is that each criminal justice body must take reasonable steps to promote awareness of the victims’ code among users of those services and other members of the public, et cetera. I cannot conceive how you could discharge that duty of raising awareness without informing people how to access or go to whatever services they need, so it is implicit in the operation that that sort of information will have to be provided. The way in which it is provided and the detail of it is not for the Bill but for the code and the guidance.

[Lord Hogan-Howe (CB)]

My Lords, I am sorry to delay things, but there is one thing I am not clear about. Restorative justice at the moment is available for the suspect as an alternate to going to court, with the agreement of the victim. If the right is to be given to the victim to insist on restorative justice, is that an addition to a potential court appearance or an alternate? If the Crown Prosecution Service has decided that there will be a prosecution but the victim insists on their right to restorative justice, does that change that decision? I am not quite clear from the amendments, nor the Minister’s response, how that dilemma is resolved. It may be that I have just misunderstood, in which case I apologise, but I do not quite understand how that gets resolved.

[Lord Bellamy (Con)]

My Lords, I may be as underinformed as anyone but my understanding is that the classic case of restorative justice is that once there has been a prosecution and a conviction, there is a process for some kind of reconciliatory interaction between the victim and the offender—for example, of the kind that my noble friend Lord Hodgson so eloquently described—in a way which enables both parties to process and come to terms with what has happened. It is not typically an alternative to having a prosecution in the first place, as I understand it, although that might arise.

[Lord Blunkett (Lab)]

My Lords, I know there is an unwritten convention that noble Lords should not intervene when they were not able to be here at the beginning of a group, which in this case was last week, but I do not think that convention prevents me asking a question. Is it not really important that people in the prison system are able to understand what they can do for themselves, and for the victim, by engaging with restorative justice? That is one of the reasons I put my name to Amendment 14. The right honourable Stephen Timms in the other place is an excellent example: he has corresponded with, and is arranging to meet, the perpetrator of the attack on him many years ago. That will, I hope, assist them both—the perpetrator in her release and her future—and give some consolation through her coming together with the victim, who in this case was Stephen Timms.

[Lord Bellamy (Con)]

My Lords, I thank the noble Lord, Lord Blunkett, for his question. I would obviously not dream of making any procedural point, as it is a very fair question. I do not think it is clearly envisaged in the Bill or the code, as it stands at the moment, that it should be the perpetrator who is seeking some sort of restorative justice, rather than it being something that the victim is entitled to. The noble Lord’s point is well made and we should think further about it.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too thank the noble Baroness, Lady Coussins, for this group of amendments, to which I have put my name. I echo the point that she has had a sustained campaign on this through a number of Bills and I very much hope that this group of amendments will reinforce her campaign, if I can put it like that, and the Minister will look at it favourably. She gave various examples of shortcomings in the court system where interpretations go wrong and I have had personal experience of every single one of the shortcomings that she highlighted. I suspect that anyone else who has worked in the courts, particularly in our metropolitan cities, will have experienced those shortcomings as well.

The right reverend Prelate the Bishop of Leeds spoke about his work as a linguist and I think I am right in saying that he is a Russian linguist—he is nodding his head a bit. It reminded me of when I understood the difference between interpretation and interpreting. That was when I was working in Ukraine and had a Russian interpreter interpreting for me. She was so fluent that she could talk simultaneously in whatever conversation was happening and, she told me, she also did her shopping list in her head at the same time. That is how fluent she was. There really are some remarkable people who do this work. The other thing I learned through various aspects of my life is that there are specialisms within interpreting and it is very important that you recognise the limits of the interpreters one is dealing with at any particular time.

This brings me on to the point made by the noble Baroness, Lady Newlove. She gave the example of an Albanian gang member who was involved in interpreting in a case of alleged rape. One thing I have become aware of in dealing with domestic abuse, particularly when it is minority groups with minority languages, is that you have to be very cautious about who the interpreter is. The information that comes through the interviews with the lawyers and the like can easily leak out into the wider community of that group and can undermine the woman in whatever legal remedy she is seeking. It is a point that I absolutely recognise.

The noble Lord, Lord Hogan-Howe, talked about the processes themselves and the noble Lord, Lord Meston, talked about value for money. He also spoke about sign language and lip-reading, both of which I have experienced in court. It is quite an exhaustive process and I understand that it is quite expensive when you have to have relays of sign language interpreters when one is dealing with particular cases. Nevertheless, there is a fundamental point underlined in this group of amendments from the noble Baroness, Lady Coussins, about access to justice and we need to make sure that the standards are as high as possibly can be obtained.

The noble Lord, Lord Marks, said, “Don’t underestimate good intentions when interpreters are interpreting”. Many times, I have seen them try to help understanding by overexplaining things, which actually undermines one side or another of the case. I understand that this is a difficult, sensitive issue but I very much hope that, when he comes to reply, the Minister will give as much reassurance as he possibly can—both that standards are kept at the highest possible level and that all necessary procedures and protocols are properly reflected—so that the aspirations of the noble Baroness, Lady Coussins, can be fully met.

[Lord Bellamy (Con)]

My Lords, I thank the noble Baroness, Lady Coussins, for raising this important topic. I join in the general commendation of the way in which she presented her amendments and the way in which noble Lords have subsequently supported them.

In relation to the remarks of the right reverend Prelate the Bishop of Leeds, I will, if I may, trespass on your Lordships’ indulgence. Let me say that, having had to work for several years in an entirely foreign language and an entirely unfamiliar legal system, I am quite conscious of the difficulty that one has. There comes a point—in my experience, at least—when you get stuck between two stools and you cannot say anything in either language in trying to express yourself. So the subject matter of what we are discussing is well understood.

Perhaps we might start with the common ground. It goes without saying that interpreting—I emphasise that word—and translation services must be of the highest quality and clarity in the criminal justice system, as well as tailored to the victim’s needs. As far as the Ministry of Justice is concerned, interpreting and translation services are provided under contracts where the various standards and requirements are laid down. As I think the noble Baroness, Lady Coussins, pointed out, those arrangements have been subject to ongoing and extensive review, which I hope will be completed shortly—at least not before long—to ensure that we have the highest quality. Obviously, the general objective is fairly self-evident: in the justice system, you must have a high standard of interpreting and translation. For the CPS, interpreters must be on the National Register of Public Service Interpreters. That is the first area of common ground.

The second area of common ground is that, for those whose first language is not English, the right to understand and be understood is enshrined in the code. It is right 1—the most important right of all—and is set out on page 15 of the present draft of the code, which says that

“providers must communicate in simple and accessible language and all translation or interpretation”—

I take the point that it says “interpretation” but probably should say “interpreting”—

“services must be offered free of charge to the victim”.

So this is recognised as a right. If it is not always achieved, as the noble Baroness, Lady Newlove, feels, that is, in effect, why we are here. The whole structure of the Bill aims to remedy possible defects and create a system in which we can raise standards progressively and consistently across the country, commissioning bodies can learn from each other and we can improve the service available to victims, generally speaking; that is an operational issue rather than an issue of principle. No one is disputing the broad thrust of the comments that have been made.

Here, once again, we come to what is in some ways the philosophical issue behind everything that we have been discussing: to what extent should we introduce matters in the Bill and to what extent should we deal with the operational and detailed aspects in the code or in guidance? On that point, the common ground tends to be a little more limited, if I may say so.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, it is heartening to hear a story with a happy ending in one respect, as we are generally dealing with unhappy or less happy outcomes.

This Government are very much in favour of open justice as a general proposition, and we are in the middle of a consultation on it. This debate should—I will make sure that it happens—figure in the evidence presented to that consultation so that we can see where we go. Anecdotally and in terms of the shape of things to come, we are already live-streaming the proceedings of the Supreme Court, Court of Appeal and the Competition Appeal Tribunal, which I used to have something to do with many years ago. Hopefully, in the years ahead, this problem will diminish if not be resolved through those kinds of technical developments. The twin obstacles are cost and the state of the technology.

It is true that this House, through the—in historical terms—quite expensive use of the Hansard reporters and the more recent introduction of our technology, is able to read and see what is happening. But we are one place. Every day in this country, hundreds of courts are in operation. To stream, record or make immediately available the proceedings of those courts is quite a challenge.

At the moment, a judge’s sentencing remarks are made freely available in cases of murder, manslaughter or causing death on the road. From this spring, as has been mentioned, we will run a further one-year trial of similar arrangements in cases of rape and serious sexual offences. That will, I hope, further inform which way we should go. I am not in a position to give further details on exactly how many courts will be covered by that pilot and on other matters raised by the noble Baroness, Lady Hamwee. However, I will write to the Committee to fully inform it.

It is less well known, and I do not think it will be an answer to the problem, that a victim can go to a Crown Court building to listen to a tape of the proceedings if that can be suitably arranged. That right is not very well known. It may not be quite in the direction that the technology is going.

To come back to the present situation and our twin obstacles of cost and technology, some of the figures of cost have been mentioned; it is expensive to do it manually. As to the technology, we have made considerable advances in the use of technology during the pandemic. Most courts can operate remote hearings of one sort or another.

Although I hold no ministerial responsibility for criminal justice, in terms of my day job, I was somewhat surprised and worried by some of the comments made by the noble Baroness, Lady Brinton, about witnesses being asked to leave the court and not to listen. I would have thought that in many court buildings these days there would be another room where the victim concerned could watch the proceedings on a screen, for example.

[Baroness Newlove (Con)]

Unfortunately, there are no rooms available to do that. I would love that—and I welcome my noble and learned friend the Minister’s warm tone in hoping that there were—but there are not. I went past two rooms in the murder trial that were video-link rooms. There are no rooms in our court buildings for families, witnesses or anyone else to watch privately and be taken care of. That is why it is so important that we try to assist them by giving them these scripts, so they can reflect on the proceedings whenever they want to.

[Lord Marks of Henley-on-Thames (LD)]

That would be enormously helpful in many civil and family cases as well, and it simply is not available.

[Lord Bellamy (Con)]

I am very grateful for those interventions. I have personally seen this in operation in Manchester, but it may have been that the court had particular availability of rooms that is not generally the case.

[Baroness Chakrabarti (Lab)]

That is where Ministers are taken.

--- Later in debate ---

[Lord Bellamy (Con)]

I recognise the nature of the problem.

The modern versions of AI, or whatever generation of technology we are talking about, have opened up recent possibilities for us. Of course, any Government have every incentive to reduce cost. Why should we spend money on transcription, if it can be done more effectively and cheaply? The view currently taken is that a 99.5% accuracy is required. When we last trialled this in 2022 that level was not achieved, so we have not further proceeded with that development at the moment —but it remains a distinct possibility.

There is a specific situation with the magistrates’ courts whereby we do not even have recordings, let alone transcription. But again, if those courts now have screens that can be adapted in some way, the further development of technology is going to be the answer to the problem. At the moment the Government, although very sympathetic to the point, do not feel that they are in a position to accept a statutory obligation to provide a victim with a free transcript of the trial. We are working through the development with regard to sentencing remarks.

Of course, I will keep this under review and discuss it further with my noble friend Lady Newlove and others. The noble Lord, Lord Meston, makes very sensible points about the nature of some of these transcripts. We are going to have to be very careful in some cases. That is a quite separate issue.

With regret, I do not feel that the Government can accept Amendment 20 in its present form, but I hope I have explained the direction of travel as far as the future is concerned.

[Baroness Brinton (LD)]

My Lords, I thank all noble Lords who have contributed to this debate, particularly the noble Baroness, Lady Newlove, and the noble Earl, Lord Russell, who talked about their personal experiences, which was extremely valuable. I will not rehearse what has been said and repeated by others. I think the Minister needs to understand that the opinion of those who have contributed is somewhat different; certainly, the issue is worth discussing. I hope he will be prepared to have a meeting with those of us who are here. For example, we have just had a debate about the importance of being able to find rooms, but many speakers said that it was still too early for a traumatised victim to be able to take in the proceedings.

To give noble Lords my own experience, when I went into the court to hear my stalker being sentence, I was not just near his family; I was next to him—that far away. The result was that I did not hear a word of the sentencing, so thank goodness journalists covered it. I missed the absolute key bit, because all I was thinking about was how close he was to me. Extra rooms would be enormously helpful, and I believe the court system needs to find a way to make sure juries understand that victims should not be penalised if they wish to listen. I do not have an answer to that but, if the Minister agrees to a meeting, perhaps we will have that as one of the topics for discussion.

My final brief point is that in your Lordships’ House we already use Zoom and Teams. I chair a disability committee for the Local Government Association— I am a vice-president of the LGA—and we have deaf and hard-of-hearing people in the group. I use close captioning for every single one of those meetings, and it can be saved. This is not a future technology; it is available. If the Government and the court system do not recognise where these are, we will lose the benefit of what is happening now by not harnessing the technology available to help victims who really need it. I hope the Minister will agree to a meeting.

--- Later in debate ---

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

I am going to give the Minister an opportunity to respond, if he wishes.

[Lord Bellamy (Con)]

Thank you. The Sentencing Council point is an interesting one, which I will reflect on. As for the request from the noble Baroness, Lady Brinton, of course I am prepared to have another meeting.

Amendment 20 withdrawn.

--- Later in debate ---

It has been a privilege to speak briefly in this debate. I look forward to the Minister’s response.

[Lord Bellamy (Con)]

My Lords, I thank all speakers in this debate. Like others, I particularly salute Poppy and her story. The whole purpose and point of the Bill is that the system should function as it apparently did in Poppy’s case; I am glad that it did. We should bring everything up to that level. It is part of levelling up. The Government have brought forward quite an extensive framework in which the improvement in the rights of victims, victims’ awareness, accessibility of services and the duties of police and crime commissioners and local agencies are being given a tremendous shove. I think that was the phrase I used at Second Reading. I respectfully do not accept the description by the noble Lord, Lord Russell of Liverpool, that this is “good chaps” stuff. This is serious stuff to deal with a serious problem.

I support the last comments of the noble Lord, Lord Ponsonby, that it is a bit sterile to argue whether this word or that word should or should not be in the Bill—whether it should be “must” or “should”—and get all legalistic about it. We should really be discussing the practicalities, the costs and how we do it. That is more about what we do with the code itself than about having a sterile debate on the statutory framework. Those who are pursuing the interests of victims should not, I respectfully suggest, get hung up on exactly what the statute is saying; they should be thinking about what we should do in practical terms. From the government side, I rather welcome that general suggestion from the noble Lord, Lord Ponsonby. Let us get down in the weeds on some of this.

On the general question of the treatment of children in the Bill, I draw your Lordships’ attention to the fact that children are already quite extensively referenced in the statutory framework. Clause 11 is about:

“Guidance on code awareness and reviewing compliance”.


Clause 11(2)(b) says that the guidance may include provision about

“the way in which information is collected (and in particular, how information in relation to children or individuals who have protected characteristics within the meaning of the Equality Act 2010 is collected)”.

Clause 13 is about the crucial stages of needs assessment and the collaboration of the relevant authorities. Clause 13(4) says:

“When making an assessment under subsection (3), the relevant authorities must have regard to the particular needs of victims who are children or have protected characteristics within the meaning of the Equality Act”.


Lastly, as the noble Lord, Lord Ponsonby, has just pointed out, a similar phrase appears in Amendment 74 —the proposed new Clause 15. The same phrase is in the existing clause as well. Talking about guidance about specified victim support roles, proposed new Clause 15(5) says:

“Guidance under this section must (where relevant) make provision in relation to victims who are children or have protected characteristics within the meaning of the Equality Act”.


We already have a statutory framework for getting to where I think all your Lordships would want to be.

What, then, is the next stage? In the Government’s view, it is to make sure that we have it right in the code. The code already deals with children on page 7 and provides that they and other victims who have protected characteristics have enhanced rights, so that you have the right to receive information earlier, or better information, in various ways, and those enhanced rights are there in the code.

What the code does not do at the moment is to distinguish clearly between children and other vulnerable or intimidated persons or those who have protected characteristics under the Equality Act. Therefore, the Government are very open to considering how we develop a section in the code that deals specifically with children, and we are working with that aim, with the Children’s Commissioner, to deliver on that commitment to address children’s needs in the code. We started with a round table activity last week, attended by academics, criminal justice bodies and other important stakeholders, including the domestic abuse commissioner. We have to meld the respective roles of the Children’s Commissioner and the domestic abuse commissioner, who I think jointly wrote an article in the national press not very long ago saying that we must do better—indeed, perhaps arguably, we should.

[Baroness Brinton (LD)]

This is absolutely no criticism of the Minister himself. The Government have often tended to focus on domestic abuse, but child victims are not always victims through domestic abuse. Can the Minister reassure the House that while it is important that the domestic abuse commissioner is involved, the focus will remain on the experience of the child victim, wherever it has happened?

[Lord Bellamy (Con)]

I am extremely grateful for that important intervention. As a number of noble Lords pointed out, although from various quarters adults can—sometimes quite vociferously—speak for themselves, children cannot, on the whole. They are the silent ones. We have heroines such as Poppy but on the whole, we are dealing with a cohort that does not have the ability to raise its own profile, for that fairly obvious reason. I am grateful indeed to the noble Baroness, Lady Brinton, for making that point. For myself—I cannot commit the Government—I would say that we need available a part of the code or something that is particularly child friendly, so that at least some children can themselves consult it and understand their rights. So the Government’s door is not at all closed on this point. If I may say so again— I am conscious that sometimes I sound a bit like a broken record—can we please work on the practicalities of the code and on bringing everybody up to the same sort of level, rather than getting hung up on rather dry legal points?

I think I have covered in general terms the spirit, drift and direction of the amendments. I have to make one point on Amendment 100A which it does not at all please me to have to make. The difficulty with that amendment, as the Government see it, is that it relates to cases of suspected abuse. We have in the Bill a definition that turns on the existence of criminal conduct, and if there is criminal conduct, there is a victim. The Government at the moment are reluctant to extend that to suspected criminal conduct. That is a difficulty.

[Baroness Chakrabarti (Lab)]

But that is not quite right, though, is it? I do not believe that the definition of a victim in the Bill requires there to have been even a charge of criminal conduct, let alone a conviction, so I do not quite understand the reasoning that says we are concerned about suspected criminal conduct.

[Baroness Brinton (LD)]

Any suspected child sexual abuse would be a crime, as covered under Schedule 1. In that context sexual abuse is covered, particularly that of minors.

[Lord Bellamy (Con)]

We may slightly be dancing angels on a pin. It may well be that if a regulated professional says to an authority, “I suspect there is criminal conduct”, there is enough there to say that there actually is criminal conduct to enable—

[Baroness Chakrabarti (Lab)]

For clarity, it is important, given that I intervened on the Minister before, to refer the Committee to Clause 1, “Meaning of ‘victim’”, and to subsection (5) in particular, which says that

“It is immaterial … that … no person has reported the offence”


or that

“no person has been charged with or convicted of the offence”.

Therefore, if no person has even reported the offence but a victim is still a victim, I believe—with huge respect to the Minister—that victims of suspected crime are included in the definition of “victim” that is the foundation of His Majesty’s Government’s Bill.

[Lord Bellamy (Con)]

My Lords, I am not sure that we are really in disagreement on this. As I think I pointed out several times on the last occasion, criminal conduct does not depend on whether something has been reported; I had a discussion with the noble Baroness, Lady Hamwee, about that before. We are discussing what level of evidence there has to be before somebody has to say that there is criminal conduct. Somebody has to judge whether there is criminal conduct if the thing has not been reported to the police, prosecuted or charged. It may well be that, in the circumstances the noble Baroness, Lady Brinton, refers to, the fact of that kind of reference may be enough to establish criminal conduct. However, if it turns out that the suspicion is wrong, there has not been criminal conduct. That is the only point I am making: it is either covered already, or it should not be extended to the situation being envisaged. I do not think I have made myself very clear, but I was struggling to do so.

[Baroness Brinton (LD)]

I am grateful to the noble and learned Lord. As the debate we have just had demonstrates, the problem is that we need more clarity. If it is covered in the Bill—we are not convinced that it is, which is why we tabled the amendment—for children it needs to be made clear in the Bill, because of IICSA’s first recommendation about mandatory reporting, which we hope will come in due course. I understand that the Government have not made a decision on that, but at least it would nod to that recommendation, saying, “If somebody in a regulated profession believes that a child is a victim, and has a suspicion or belief that they have been the victim of CSA, then they are a victim”. It would be clear, and I am not sure that it is clear in Clause 1(5).

[Lord Bellamy (Con)]

My Lords, I need to think about this point. The amendment came in a little later than some of the other amendments, so I will take it under advisement. I see the point that is being made.

Victims and Prisoners Bill

Lord Bellamy Excerpts

Committee stage
Wednesday 31st January 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I find myself in a difficult situation, because in the previous group I had said that we should not have a sterile debate about whether we should have all the victims’ code on a statutory basis, and I challenged the Minister to look at individual provisions that should be on a statutory basis. I understand that that is not the tenor of the debate that we have been having in this group. However, Amendment 108, which was spoken to by the noble Lord, Lord Polak, in the previous debate, looked at a specific element—namely, to do with the relevant local commissioning of bodies for specialist support for children who are victims, and whether that should be on a statutory basis, so as to put it on a similar basis to that for domestic abuse victims. I do not think that the Minister answered that amendment. While on the one hand I acknowledge the point that having an all-or-nothing approach may not be the best use of our time, on the other, it would be helpful if the Minister addressed the specific proposals in the amendments in the previous group.

Having said that, we are at a relatively early point in Committee, and there will be opportunities to bring these matters back. As my noble friend said, she has a further group of amendments looking at the powers of the Victims’ Commissioner. Having explained my position to the Minister, I look forward to his response.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I thank the noble Baroness, Lady Chakrabarti, and others, who have spoken in this part of the debate. To take up at once the challenge of the noble Lord, Lord Ponsonby, the Government’s position is that there are no specific amendments, including Amendment 108, which could or should be promoted into the Bill—they should all be dealt with in the code, in the right place. The difficulty of putting specific matters in the Bill, among other difficulties, is that you make a policy choice, irrespective of the available resources and the available situation in different areas, and so forth, as to which—

[Baroness Chakrabarti (Lab)]

My Lords—

[Lord Bellamy (Con)]

I was just going to finish my sentence, but of course I give way to the noble Baroness.

[Baroness Chakrabarti (Lab)]

I am sorry for being premature. I totally see the Minister’s point about the challenge of taking particular parts of the victims’ code and putting them in the Bill. That is why some of us are offering the suggestion that the whole victims’ code should be in statute. I hope that that would assist the Minister, because he would then not be picking and choosing particular aspects of the code, as the whole code of victims’ rights in this country would be in primary legislation, subject to amendment and so on. That would make victims’ rights a little bit closer to the appropriate rights of suspects, defendants and convicted criminals.

[Lord Bellamy (Con)]

My Lords, I am grateful for that intervention and clarification. Perhaps I could explain why the Government do not think that this is a positive way to go.

The first point is that the present code is still a statutory code. It is grounded in statute, authorised by statute, has been subject to negative resolution in Parliament and therefore has a legal status. The Government’s position is that putting the code in a schedule to the Bill does not materially increase its legal enforceability, or indeed its legal status. Therefore, there does not seem to the Government to be a compelling reason to do it in either case. The Government would consider the present code to be subject to judicial review. There could be a legal challenge; in fact, the legislation on the face of it accepts that the code is admissible in legal proceedings, and so forth. So we already have a statutory code, and we are dealing with quite a fine point—whether putting in a schedule really has any material effect. The Government’s position is that, certainly legally, it has no effect—but in practice there is a very significant downside.

The downside is that what you have on the statute is no longer user-friendly and no longer contains the information that victims want when they reach for the code and want to know what to do, where to go, what the telephone number is and what the website is that they need to consult. You cannot put that in the statute, and I invite noble Lords to compare the code as currently reproduced in the amendment we are discussing with the code as published. The latter sets out 12 rights very clearly, has boxes that explain various things, tells you where to go, elaborates on the rights, et cetera, all in very user-friendly language. Either you abandon that—in which case, you abandon the signposting and everything we were discussing in the previous group—or you have two documents. And that, in the Government’s view, is not very satisfactory. Although we all have touching faith in the interest of the general public to read long schedules in the statutes that we pass, that is not actually the way to raise awareness. You raise awareness through other means.

[Baroness Lister of Burtersett (Lab)]

I am sorry to intervene. I have been listening and have found the arguments very persuasive. If the Government are saying it does not make any difference to put it into the statute itself—and yet I know from briefings I have received that there is a very strong push from bodies on the ground saying we do need the code in the statute—why can we not have the statute and then a user-friendly version of it? That does not seem to me such a terrible thing.

[Lord Bellamy (Con)]

The Government’s view is, first, that there is no need to go down this route at all, because the present structure of the code under the existing legislation creates statutory duties, obligations and rights that can be enforced by one route or another. If you burden the statute with this, the Government’s position is that it has no real effect, either in law or in any other way, but does have the complication that you must have—as I think the noble Baroness is conceding —at least two documents. That, again, overburdens the system, and the document that is trying to be user-friendly and communicative may turn out to be more difficult to draft, if you are always stuck with the framework of what is in the statute. So it gets us nowhere and simply complicates life.

[Baroness Newlove (Con)]

I am sorry, I am not a legal person, so I am just trying to join the dots, if you will bear with me. I think what is really insulting to victims is that it is like a two-tier level—one is a code and one is a law. What we want is to make sure that that persuasive guidance is in law, because it is about accountability and while it is in the code—with the words “should” or “must” or “do”—there is no accountability. So I am confused by the Minister saying it makes no difference if it is put in law and that it is easy language. It is nothing to do with that. It is important for victims to know that they have legal rights—not to take away from the offenders’ rights, but to start a level playing field—so I am a bit confused about my noble and learned friend’s response, as it does not make sense to me, and I am not a lawyer.

[Lord Bellamy (Con)]

My Lords, I thank my noble friend for her intervention. Let me have another go at explaining it. The code is not in itself a statute. Once you go down the route of having a code and not a statute, you effectively have a framework that is still a legal framework—it is still legal guidance that gives people rights. The code says that you have 12 rights and lists them: this is what the authorities have to do and this is what you do if those rights are not observed. It is a legal framework; we are talking about degrees of legal right, but these are legal rights. If you wanted to, you could go to court and say that you have not had them.

[Baroness Chakrabarti (Lab)]

No, you could not.

[Lord Bellamy (Con)]

Well, that is not the Government’s advice.

--- Later in debate ---

[Baroness Brinton (LD)]

Before the noble and learned Lord gets up—I know that is the inverse of the usual statement—perhaps it might be helpful if I cited something from the code and then asked a question. The second right states:

“You have the right to have the details of the crime recorded by the police without unjustified delay after the incident”.


We know that there are a lot of delays, but let us put that to one side. Where does it say in legislation that governs the actions of the police—whether that is primary legislation, secondary legislation, codes of practice or statutory guidance—that they have to do this? The problem is that we cannot find any of the rights in the victims’ code reflected in the statutory duties of the agencies listed in it. Please tell me I am wrong; I would be delighted to be wrong.

[Lord Bellamy (Con)]

If I may say so, sometimes one is in the middle of the flow of one’s argument and people jump up and down when one has not quite finished explaining the overall framework. The essential problem here is not the code itself, as the noble Baroness, Lady Chakrabarti, kindly said—it is not a bad document, I venture to suggest—but a lack of awareness, police not doing their job and nobody knowing quite what should be done if that were to happen. The idea behind the basic framework of this legislation is to force the relevant bodies to take steps to comply with the code. That is why Clause 6 says:

“Each criminal justice body which provides services … must … take … steps”


and “must … keep under review”. Clause 7 provides that they must provide various activities, et cetera, and must collect information, that a local policing body must do this, that and the other and that the various constabularies referred to later must do these things. The idea is that we have a code and a framework, and we must make sure that the bodies responsible for enabling victims’ rights do so.

In the Government’s view, you do not materially increase the likelihood of them doing so by putting the code into a schedule, any more than you increase that likelihood—to deal with another point—by converting a “should” into a “must”. That is another bit of fine tuning. The principles of the code are set out in Clause 2; for example, that you “should provide information”. You could say that you “must provide information”, but that does not really change the enforceability unless you have a whole statutory framework for what the information should be, who should provide it and how it is to be done. That is all in the code at the moment, where it should be.

I do not want to refer again to angels dancing on pins, but I think we are slightly at cross-purposes as to what we mean by things “in law”, “legal enforceability”, or “statutory codes”. That is the Government’s basic position on this.

[Baroness Hamwee (LD)]

I do not want to stop the Minister when he is in full flow. I understand how difficult it must be when people leap up because he has a comma in the middle of a sentence.

It seems to me the Minister has already conceded the next group of amendments, which are about compliance and data monitoring. Can he remind us why in Clause 2 it is “should”, not “must”, since he has just cited and relied on other clauses which use “must”? I do not know whether I have elevated myself to the status of an angel with that.

[Lord Bellamy (Con)]

I think the short answer is that the purposes of those later clauses is to impose a statutory duty on the relevant bodies. The purpose of Clause 2(3) is to set out the principles. In terms of these, the Government’s view is that “should” is a more appropriate word than “must”, because the principles are very broadly expressed. Noble Lords might argue that “should” and “must” are almost interchangeable. I think we are again drawing really fine distinctions.

Perhaps I could just deal with two or three other points that arise on this part of the Bill. One is the question of the affirmative procedure as against the negative procedure. If I may say so, at the moment the code is subject to the negative procedure. Noble Lords can pray a resolution against it—of course there is going to be a debate in Parliament. I would respectfully suggest that it is more flexible than our somewhat—on some occasions at least—torrid debates in the Moses Room on affirmative resolutions. Noble Lords cannot change anything, it is very formalistic, and I respectfully suggest that making it an affirmative resolution is not a material improvement.

To keep the whole structure flexible and adaptable—I have used various words beginning with “a”, and I think I could add “adaptable” to this cohort—the Government suggest that it is not a useful move to put the code without the accompanying description in the statute itself; that in itself has no material effect on the Government’s view.

[Baroness Chakrabarti (Lab)]

I am grateful to all noble Lords who participated in this debate.

I remind noble Lords that Clause 5 makes it clear that failure to comply with the victims’ code, currently and as proposed in the Bill, does not make a person liable to criminal or civil proceedings. The code has no legal teeth.

Let us cut through a bit of the legal waffle. The noble Baroness the Victims’ Commissioner is right: this is a code without enforceability. No victim can enforce their rights in any court in the land, and even the Victims’ Commissioner appointed by the Government of the day cannot enforce the code. That is why the amendments in this group dovetail with later amendments which would give the noble Baroness, Lady Newlove, and her successors and heirs, some modest powers to issue notices to public authorities, to publish those notices and, in extremis, to take legal action.

With the greatest respect to the Minister, to say that there is no difference between the scheme that is offered in these amendments and the current position is just not accurate as a statement of law. He said that this amendment is unnecessary and unhelpful. I hope that I have dealt with that. He said he did not want to burden the legislation with a schedule. I do not want to burden victims because this Bill is supposed to be about them. I know where the balance of the argument is between a few extra pages in a schedule and this toothless, illusory, broken promise to victims.

As for the arguments about how clunky it looks to have a code in a schedule to legislation, compared with the sparkly thing that could be on the Victims’ Commissioner’s website, we have that all the time. The convention rights—which may not be totally popular with everyone on the Benches opposite—are popular with me and mean a lot to people. They are in a schedule to the Human Rights Act. They are popularised in all sorts of ways to all sorts of people. They know that this is not a code of guidance; it is a Bill of Rights.

As I have said before, parties on both sides of this House have, for many years, talked the talk about victims’ rights—more legislation, longer prison sentences, et cetera—but have not actually delivered a right to see the transcript, to have a separate room at the court, to be treated with dignity. Let us have this debate but let us not pretend that there is no legislative or legal difference between the current and proposed positions.

I am disappointed by the Minister’s response. Because I have so much respect for him as a lawyer and a former senior judge, I urge him and his colleagues to think again about this. It would not cost a penny, but it would mean so much to so many people. Putting this and the subsequent amendments that we will debate on a legislative footing would give the Victims’ Commissioner some judgment and power to give this code teeth.

For the time being—but only for the time being—I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Thornton (Lab)]

My Lords, the noble Baroness, Lady Newlove, said it right when she said that it is time to give the Victims’ Commissioner the statutory place and rights that are appropriate. That is exactly the point of this suite of amendments. They aim to do two things. One is to give the Victims’ Commissioner the right status to be able to get the right information and have the right relationships to make them most effective, but it is also placing duties on other organisations to co-operate with the Victims’ Commissioner. That is what this suite of amendments is about. That means that they are very important. They also reflect the powers that other commissioners have in this space.

We have a group of amendments which give the Victims’ Commissioner a statutory duty to review the operation of the victims’ code, placing a statutory duty on the Secretary of State to consult the commissioner when making any changes to the victims’ code or issuing any statutory guidance relating to it. The amendment refers to the duty of the Secretary of State to consider any representations in relation to the drafting of the victims’ code in consultation with the Attorney-General. Again, I thought, “Why do you have to say that?” But, actually, I think we have to.

Amendments 27 and 29 alter the procedure for amending the victims’ code to require formal consultation with the Commissioner for Victims and Witnesses—I did not think that was necessary either, but if we need to say that, then we do—and affirmative parliamentary procedures.

Amendment 28 refers to

“the duty on the Secretary of State to consult the Attorney General on any revisions”.

Amendment 35 refers to

“the Secretary of State’s duty to issue regulations on the information to be collected by PCCs at a local level”.

Amendment 43 also places a duty on the Secretary of State to

“issue regulations on the timing and format of the information”.

This is about relationships that the Victims’ Commissioner needs to have to do their job effectively—with the Attorney-General, with PCCs, with the agencies with which the commissioner has to work.

My amendment—again, you would not think it would be necessary, but it clearly is—states that there is a specific public authority duty

“to co-operate with the Commissioner in any way that the Commissioner considers necessary for the purposes of monitoring compliance with the victims’ code”.

If we do not give the Victims’ Commissioner the power to ensure that the code is being complied with, we are not taking victims seriously. If we do not do that, we do not place the right kind of duties on the Secretary of State. We also need to make sure that the way the Victims’ Commissioner works is joined up with all the different agencies that she—it has always been “she” so far—needs to have.

We are very keen on this group of amendments because it does those two things: it gives the Victims’ Commissioner power, and it places a duty on different parts of the state to provide, as the noble Baroness, Lady Newlove, said, formal parts of criminal justice infrastructure. This a powerful suite of amendments that I hope the Minister will agree to, and certainly will discuss with us as we move forward.

[Lord Bellamy (Con)]

I am very grateful, once again, to all noble Lords who have spoken to this group of amendments, which is related to the previous group. I am very sorry if the noble Baroness, Lady Chakrabarti, and I have managed to fall out over what is actually a legal discussion. Maybe we can pursue some of the points that were made in the previous group further, so that we understand each other and where those who support those amendments are coming from.

As far as this group of amendments is concerned, I will take first the amendment that would place a specific duty on specified public authorities to co-operate with the Victims’ Commissioner. I do not think anyone is in any doubt—and certainly the Government are not—that the Victims’ Commissioner plays a most important role that requires collaboration across the criminal justice system and the support sector. We recognise that there is other legislation affecting the domestic abuse commissioner which gives them the kind of powers that I think are partly, at least, being sought under this amendment.

I cannot at this moment accept the amendment, as I am sure noble Lords completely understand. But I am very much open to working with the Victims’ Commissioner and the House on whether there is any common ground on this approach, which would help us build up the bricks we are looking to build up to create the building that will enable this whole system to be more effective.

As regards the amendments to require the Secretary of State to consult the Victims’ Commissioner, I first make an extremely nerdy point, just for clarification. Clause 3(3) states:

“In preparing the draft the Secretary of State must consult the Attorney General”.


That is probably a bit confusing at the outset, but what is essentially being said is that the Secretary of State must consult relevant Ministers responsible for the bodies to which the draft is to apply: the Lord Chancellor, the Home Secretary—both of whom are englobed in the phrase “Secretary of State”—and the Attorney-General, who is responsible for the Crown Prosecution Service and similar justice bodies. It is a sort of ministerial consultation.

As to the question of consulting the Victims’ Commissioner on the code, further amendments to the code and so forth, I cannot imagine any circumstances in which the commissioner would not be consulted on all these matters. We have not set out in the Bill all the stakeholders that should be consulted but I would very much like to continue to work with the Victims’ Commissioner on this issue and how we continue to recognise that vital role. Again, may we take this amendment under advisement and see how far we can go?

[Baroness Brinton (LD)]

I am mindful of the point made by the noble Baroness, Lady Newlove: because the Victims’ Commissioner is not a statutory consultee, consultations often arrive as the policy is announced. It is a tick-box exercise. The point of making someone a statutory consultee is that they have to be notified as the process starts, not as it ends. If the Minister is going to have a discussion with the noble Lords who have spoken in this debate, it would be really helpful to understand how the position outlined by the noble Baroness can be prevented.

[Lord Bellamy (Con)]

My Lords, I am sure that that point deserves full consideration alongside other points.

Victims and Prisoners Bill

Lord Bellamy Excerpts

Committee stage
Monday 5th February 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak to Amendment 36, which is in my noble friend Lord Bach’s name, as well as my own. This is a probing amendment. It does not set out to challenge the Government’s position on delivering their commitment regarding local criminal justice boards, within the scope of the clauses on code compliance. It seeks to set out the benefits of putting LCJBs and police and crime commissioners together.

First, it will drive consistency of approach to code compliance, which can be monitored through LCJBs. Secondly, it will deliver effective collaboration and shared accountability of code compliance and encourage attendance from criminal justice boards. Thirdly, it will ensure that statutory guidance is reflective of the LCJB approach. Fourthly, it will recognise the LCJB role in victims’ code compliance, given the policy intent to place the boards on a statutory footing.

This amendment does not state that LCJBs are the only forum in which to comply with the current regulations. However, LCJBs are important forums that need to be bolstered in order to deliver on the Bill’s ambitions, drive consistency and ensure local shared accountability for code compliance across criminal justice bodies and the elected policing bodies. This amendment will deliver that aim through enshrining them in this Bill.

The Ministry of Justice published guidance for LCJBs in March 2023. This guidance reiterated the commitment to placing LCJBs on a statutory footing:

“In line with recommendations made by the Review, a suitable legislative vehicle is being sought to place LCJBs on a statutory footing and mandate that the PCC act as Chair”.


By giving local criminal justice boards their own place in the legislation, this amendment would remind local partners of their shared accountability for and commitment to supporting victims of crime and to delivering the new responsibilities set out in this Bill. We would also provide PCCs, who chair the majority of these boards, with the levers they need to ensure that the boards are effective and set clear expectations of their members.

Turning to the other amendments in this group, the noble Baroness, Lady Newlove, spoke to Amendments 30 and 31, and I agree, of course, with the points she made. She spoke very powerfully on the importance of independent scrutiny and transparency, and she proposed a “framework, not a straitjacket”. She believes, as do I, that what she is proposing is a better way of holding agencies to account. She also quoted the noble Lord, Lord Russell, on the Government currently marking their own homework; he wants to deliver a better system through these amendments.

I also want to endorse what the noble Baroness, Lady Brinton, said about recognising both domestically related and non-domestically related stalking. I have dealt with stalking matters quite a few times in magistrates’ courts, and even though, from an outsider’s point of view, they can seem less important, I am absolutely convinced that, for the people being stalked, it is an extremely alarming and frightening position to find themselves in. In fact, I dealt with that sort of case very recently. It also reinforces the point in Amendment 51 about the training needed for justice agencies in order to recognise stalking and its importance.

In conclusion, I noted with interest the questions of the noble Lord, Lord Hogan-Howe, to the noble Lord, Lord Russell, and the noble Baroness, Lady Newlove, about multiple inspectors and inspections and the need for this to be carefully thought through. They were very fair questions, but I do not think they add up to an argument against. Their points were well made, and I look forward to hearing the Minister’s answer.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I thank noble Lords very much for their contributions to this group. I first apologise for my heavy cold and thank my noble friends Lord Roborough and Lord Howe for stepping into the breach and dealing with subsequent groups today.

The amendments in this group essentially seek stronger compliance mechanisms, credibility, as has been said, more specific obligations on training and a wider role for the Victims’ Commissioner—in other words, we are in the field of awareness and accountability, to use two of my four “A’s”. The Government would not be proceeding with this structure if they did not believe that they were delivering a credible structure. The whole purpose of Clauses 6 to 10, combined with guidance under Clause 11, is very much to improve awareness and compliance. Under Clause 6, criminal justice bodies must promote awareness and review their compliance, and, in particular, under Clause 7 the PCCs for each area must supervise the criminal justice bodies in their area and provide reports for the Secretary of State. That is all combined with the collection and sharing of information about how they are functioning, together with the publication of compliance information under Clause 10.

In that latter regard, I ask noble Lords not to underestimate the importance and strength of shining light in dark corners. We have seen it in other parts of the criminal justice system, such as the family justice system. Once you have the information and it is in the public domain, that is a huge contributor to raising standards generally. As the noble Lord, Lord Russell of Liverpool, pointed out, some police forces are doing extremely well; I think Cheshire was the example he gave. So it can be done under the existing system. The question is, how we bring everybody up to the same standard. Clauses 6 to 10, coupled with the duty to collaborate under Clause 12, and the preparation of the strategy and the needs assessment under Clause 13, all involve everybody collaborating, working together, learning from each other and generally arriving at best practice. In the Government’s view, that is a perfectly sensible and entirely efficient and fruitful way to go. So in general terms, at least at this stage, the Government are not persuaded of the need for the further amendments in this group.

I turn for a moment to the rights of individual victims under the statutory code. Without reopening exchanges from the previous occasion, I would like to state categorically on behalf of the Government, at the Dispatch Box, that Clause 5 is not and is not intended to be an ouster of judicial review. The code, its operation and the bodies responsible for this operation are, in the Government’s view, subject to judicial review. From the point of view of the individual victim, that may be something of a technicality but, given the modern prevalence of public interest litigation by groups of various kinds, it is not insignificant that the relevant bodies and the code itself are subject to judicial review.

As for the individual victim, the Government agree with the noble Baroness, Lady Chakrabarti, that giving victims the right to sue directly in the courts—for example, for damages—is not the best approach. In the case of the individual victim, the route is a complaint to the ombudsman, who may give such redress, including compensation, as it is within their power to give. Noble Lords will note that another improvement in the Bill, in Clause 23, enables the victim complainant to go direct to the ombudsman rather than through one’s MP. That is an important reform.

What are the enforcement mechanisms if this system does not work as envisaged? What are we going to do about it? I shall give noble Lords a little bit of colour from the additional document about compliance oversight, published on the MoJ website last month and referred to by the noble Baroness, Lady Newlove. At national level, there will be a new cross-criminal justice system governance system, with a programme board and a ministerial taskforce to monitor compliance nationally. The Victims’ Commissioner will be fully involved; we are putting the Victims’ Commissioner at the heart, administratively speaking, of the way in which this is developing—as will the various inspectorates and other important stakeholders.

As the noble Baroness, Lady Newlove, said, one weapon with which to address non-compliance will be the use of non-statutory non-compliance notifications similar to those used in the Prison Service to drive change. Also very potent, if I may say so, are the inspections themselves. Clauses 19 to 22 give the relevant powers to the inspectors of constabulary and probation and so forth to have inspections. Another aspect that adds to the powers of the Victims’ Commissioner is to build the commissioner into those structures and to require those bodies, when developing inspections, to fully consult the commissioner. There is also the possibility of joint inspections, which is another tool. So when you need to do something on a targeted basis, in this Bill you have the powers, in the end, to do it. That is the Government’s general position.

I now turn to the specific amendments. Amendment 30, tabled by the noble Lord, Lord Russell of Liverpool, seeks to create a duty on the Secretary of State to set out in regulations minimal thresholds for the code of compliance and to instigate inspections when these are breached in two consecutive years. The Government’s position is that we fully agree that clear indicators are needed to identify severe and persistent non-compliance. However, it is almost certain that what the Government propose to adopt will be a range of indicators, rather than a specific minimum threshold, to consider not just when entitlements are being delivered but how they are received by victims. Those indicators should be decided by the bodies that are responsible for delivering the code, which is why it will be a matter for the ministerial task force. As I have said, the task force will include the inspectorates, the Victims’ Commissioner, and the Parliamentary and Health Service Ombudsman.

--- Later in debate ---

[Baroness Chakrabarti (Lab)]

Perhaps the Minister can drink a bit more water at this point, though that is not the sole reason for my intervention.

I am grateful for the Minister’s clarification, but my own clarification is that no one suggested, at any point, that Clause 5 is an ouster of judicial review. Last time, I was trying to make it clear that, in Clause 5, the code does not give any right to civil proceedings, and so no individual can sue on the code. In the creative scheme that we devised, we were not suggesting that individuals should be able to sue either. We certainly agree with not wanting more litigation for people who have already had a terrible time with litigation and probably have no civil legal aid anyway.

The point was that the Victims’ Commissioner should be more than a toothless tiger. Whether or not it is through force of personality, as with the current commissioner, future commissioners should have something in their back pocket for recalcitrant public authorities which, year after year, do not respect the victims’ code. Even in the scheme that we developed, litigation should not be the first resort for a Victims’ Commissioner either today or in future. They should have to jump through hoops first—the issue of private notices followed up by the issue of public notices. Only in extremis should the Victims’ Commissioner alone—in relation not even to particular a criminal case but to systemic failure—be able, as a last resort, to sue on the code. I understand the Minister’s position, but I hope he will at least take the opportunity to reflect on what noble Lords have suggested before the next stage.

[Lord Bellamy (Con)]

I thank the noble Baroness for that intervention. I will continue to reflect on all the points made, including this one. The Government’s present position is that this “slap on the wrist” power for the Victims’ Commissioner probably does not take matters much further forward, but I may reflect on that further.

I turn to Amendments 37 to 42 from the noble Lord, Lord Russell, and other related amendments, which, as I understand it, require the Secretary of State, rather than the police and crime commissioner, to monitor code compliance for a local police area. For transparency, the Government are committed to national oversight via the ministerial task force, but there is an essential role for local accountability. There is a hierarchy here, and the police and crime commissioner is the right person to be responsible for ensuring compliance in that local area as they already play a vital role in improving and championing services for victims through commissioning support services and chairing local criminal justice courts. The Government attach importance to that local activity.

This brings me to Amendment 36, supported by the noble Lords, Lord Ponsonby and Lord Bach, which seeks to specify that criminal justice boards and PCCs may use local criminal justice boards for the purposes of local review. We entirely agree. As the noble Lord, Lord Ponsonby, said—I completely recognise this—we need a wider debate about placing local criminal justice boards on a statutory footing. The Government have expressed support for that happening in a way that reflects the full remit of the work they do. Once we find a legislative opportunity to do so, it should be taken forward. The Government are very much of the view that their often vital work should be supported.

I return to awareness and training in Amendment 51 in the name of the noble Lord, Lord Sandhurst, and Amendment 83 in the name of the noble Lord, Lord Russell, on training in support for victims of stalking. The noble Lords are quite right that there is an obvious need for more training. The Government hesitate to have a national training framework because so much will depend on the local situation. These amendments apply to a vast range of organisations and a one-size-fits-all approach will not appropriately support staff to meet the diverse needs of victims in the wide range of settings in which they operate.

However, it is very difficult to imagine guidance on Clause 11 which does not include a reference to the kind of training that should be done. If you are placing a duty on the agencies to work with victims day in, day out to promote awareness of the code, it seems implicit that the relevant persons have to be properly trained. The Government agree with that.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, I do not think I could have put it better than the noble Lord, Lord Ponsonby. It is a good idea, but there are lots of complexities. I am sure that noble Lords agree that, in many ways, joining the dots and handling data is one of the most critical challenges any Government face—whether it is between departments or within the NHS, within the justice system, within or across police forces, et cetera. We still have 43 different police forces with computers that do not even necessarily talk to each other.

I thank the noble Lord for his amendment, which would introduce a consistent victim identifier for the collecting and sharing of code compliance information. This is extremely important so that we can better understand and meet victims’ needs. As I understand it, there is a Ministry of Justice pilot called the Better Outcomes through Linked Data—or BOLD—programme, which is already exploring how to link victims’ data to improve our understanding of their experiences. It is right that we should have a much better knowledge of the victim’s journey through the system and, in particular—to pick up a point that the noble Baroness, Lady Brinton, made—better understand why people drop out of the system at a certain stage. Although I do not have a more precise date, I gather that the results of that pilot will be available in 2024.

Whether it is something that is either sufficiently developed or should be in the Bill as a matter of principle is perhaps another question. At this stage at least, the Government are not persuaded that it that should be in the Bill, but they are persuaded that it is something we should continue to work on to understand the complexities and arrive at practical solutions.

[Lord Bach (Lab)]

My Lords, I thank all noble Lords for their contributions to this fairly short yet important debate. I thank the Minister for answering the question so positively. Whether or not it is for this Bill is a matter for discussion between now and Report, but it seems that while there are, of course, considerable issues around this in practice, the idea that the victim should be treated in the same way, being known about and followed, as it were, in this area seems an important principle, and would raise the position of the victim—as the Bill says it intends to do. I hope we will come back to this issue. It is worthy of discussion and has had a good outing today in Committee. I do not think it will go away—if we do not take advantage of digital advances in this area, as in every other, we are not doing our duty. I beg leave to withdraw my amendment.

Victims and Prisoners Bill

Lord Bellamy Excerpts

Committee stage
Monday 26th February 2024 Lords Chamber

[Baroness Brinton (LD)]

My Lords, I have signed the amendment and it is a pleasure to follow the noble Lord, Lord Ponsonby, and the right reverend Prelate the Bishop of Manchester.

The 2013 Francis report set out the failings of the Mid Staffordshire hospital trust, explaining exactly why there needed to be a duty of candour. It said:

“This was primarily caused by a serious failure on the part of a provider Trust Board. It did not listen sufficiently to its patients and staff or ensure the correction of deficiencies brought to the Trust’s attention. Above all, it failed to tackle an insidious negative culture involving a tolerance of poor standards and a disengagement from managerial and leadership responsibilities. This failure was in part the consequence of allowing a focus on reaching national access targets, achieving financial balance and seeking foundation trust status to be at the cost of delivering acceptable standards of care”.


That could apply to many of the issues that we have debated in this part of the Bill on major incidents. Regulation 20—the duty of candour brought in across the NHS in 2015—was defined as

“the volunteering of all relevant information to persons who have, or may have, been harmed by the provision of services, whether or not the information has been requested, and whether or not a complaint or a report about that provision has been made”.

I will refer to that duty of candour in today’s debate on a later amendment.

The CQC points out that we must remember that there are two types of duty of candour—the statutory and the professional—both of which

“have similar aims—to make sure that those providing care are open and transparent with the people using their services, whether or not something has gone wrong”.

The implementation of the duty of candour covering the NHS applies to all healthcare providers, registered medical practitioners, nurses and other registered health professionals where there is a “belief or suspicion” that any treatment or care provided by them or their trust

“has caused death or serious injury”.

It is important for the NHS that it is for people who are registered, as it is with the police. If we ask to broaden it, and we do, we need to think carefully about who it should cover, because these people must be accountable—probably through registration.

Although it is a decade since the duty of candour was introduced, serious incidents, including death and injury, have continued in the NHS. Responsible hospital trusts and providers, as well as the individual regulated healthcare professionals, all know that they will be held accountable to this standard. As was described by the two previous speakers, it is a no-fault system which overcomes the old problem that saying sorry implies legal responsibility. It sets out a standard for declaring that there is a problem as soon as someone—anyone—is aware, and, where used correctly, it reduces the agony of victims and their families facing the block of institutional silence. Where it is not used, the CQC will inspect and consider why.

I support the proposal from the noble Lord, Lord Ponsonby, that the duty of candour should cover public authorities, public servants and officials at major incidents, and they should follow it. Just think if the NHS had used the duty of candour for victims and families of the infected blood scandal, or if the police had used it in relation to Hillsborough instead of blaming the fans, or if it had been used by the council and other bodies involved in the fire at Grenfell Tower. However, just as importantly, the duty of candour changes organisations so that, where possible, they think before the event, which can also prevent major incidents. Staff put the safety of people first in all that they do. It will not prevent all major incidents, but it can either reduce or stop the consequences of a potential disaster and make the aftermath much easier to live with.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I thank the noble Lord, Lord Ponsonby, and all noble Lords who have spoken to this amendment, which would place a statutory duty of candour on all public authorities, public servants and officials in relation to a major incident. This is, if I may say so, a modified version of the Public Authority (Accountability) Bill that was previously put forward, which is known as the Hillsborough law, so the underlying question here is: should we have in statute, in one form or another, a Hillsborough law?

There is much common ground between us. At no point are transparency and candour more important than in the aftermath of a major incident. As the Government said in their Statement of 6 December in response to Bishop James’s 2017 report, it is of the highest importance to combat

“unforgivable forms of institutional obstruction and obfuscation”

and the “inexcusable … defensiveness” of public bodies in “their own self-interest”. We agree with Bishop James, and indeed with the speakers today, that what is needed is a change of culture. The question is: what is the best and most effective route to bring about that change?

In essence, for the reasons already set out in the Government’s Hillsborough Statement on 6 December and the debate that day in your Lordships’ House, the Government do not believe that this amendment, applying to officials across the whole public sector, would be an appropriate or effective way to prevent a repeat of the failings that occurred in the aftermath of Hillsborough. First, as a general point, a central feature of a case such as Hillsborough, and other similar cases, is the imbalance of power between the authorities on the one hand and the bereaved on the other. The creation of the independent public advocate for a major incident—who will no doubt pursue the victims’ interests with terrier-like determination, I hope—will go a long way towards rebalancing that previous imbalance of power and securing equality of arms. I suggest that the institution of the IPA is in itself a lasting tribute to the Hillsborough families who have campaigned to ensure that no other families ever have to suffer in the same way.

In addition, still on the equality of arms point, the Government have removed the legal aid means test for exceptional case funding for inquests and will consult on expanding legal aid for inquests where an IPA is appointed or terrorist offences are involved. Cabinet Office guidance will reaffirm the expectation that legal expenditure by public authorities should not be excessive and should be published. Again, those matters should go a long way towards rebalancing the position between the various parties.

The second point, which I think the right reverend prelate the Bishop of Manchester was, in a sense, already making, is that the Government have already tackled directly the central failure in the aftermath of Hillsborough, which was a failure by the police. As noble Lords will be aware, in 2020 the Government introduced a statutory duty of co-operation for individual police officers to ensure that they participate openly and professionally with investigations, inquiries and other formal proceedings. A failure to co-operate is a breach of the standards of professional behaviour and could result in disciplinary sanctions, including dismissal.

In the Criminal Justice Bill that was introduced in November 2023, which I hope will be before your Lordships’ House before too long, the Government are placing a statutory duty on the College of Policing to issue a code of practice relating to ethical policing. In advance of that, as has been mentioned, the Code of Practice for Ethical Policing, was laid in Parliament on 6 December under existing powers alongside the Government’s response to Bishop James’s report. That code, directed at chief constables, includes a duty to ensure candour and openness in the forces that they lead, to ensure that everyone in policing is clear what is expected of them and to provide confidence to the public that the highest standards will be met. That will be monitored, and chief constables will be monitored, by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services and by local police and crime commissioners.

A further area of concern, which the noble Baroness, Lady Brinton, referred to, relates to the NHS. One notes the Francis report of some years ago, and there are continuing concerns, for example, around events at the Countess of Chester Hospital that are the subject of a statutory inquiry by Lady Justice Thirlwall. There is already a duty of candour on the NHS under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 that covers everybody who is registered with the Care Quality Commission. The Government are reviewing that provision to see whether it is working properly. There may be details to discuss around exactly who it should cover and collaboration with the General Medical Council and the Nursing and Midwifery Council to ensure that the professional standards march in line with the statutory standards—that may be a matter for investigation—but, in principle, in the NHS, those duties already exist.

The same is also true, in effect, for statutory inquiries under the Inquiries Act 2005, backed by criminal penalties. It refers to court proceedings, where full disclosure is required of all litigants under well-established principles, and a duty of candour is expected by public authorities, notably in judicial review. For inquests, coroners have powers under the Coroners and Justice Act 2009 to obtain documents, administer oaths and question witnesses. There is a Ministry of Justice protocol that was specifically revised following Bishop James’s report, which requires government departments and lawyers to approach inquests with openness, honesty and full disclosure. A range of matters is already covered, so that leaves non-statutory inquiries, which the chairperson can request are converted into statutory inquiries in the event of obfuscation or non-cooperation. The Government feel that, in effect, the ground is already sufficiently covered in a very targeted way.

As for public servants working in central government, the Government have already reaffirmed their commitment to ensuring openness and transparency, as set out by my right honourable friend the Deputy Prime Minister when signing the Hillsborough Charter on 6 December 2023. The commitments in the charter are reflected in the existing framework of obligations and codes that apply to all those who work in government, such as the Civil Service Code, the Code of Conduct for Special Advisers and the Ministerial Code, to which we can add that public appointees to the boards of UK public bodies are subject to the Code of Conduct for Board Members of Public Bodies, which, in turn, incorporates the Nolan principles. Those matters, in the Government’s view, reveal a quite comprehensive coverage of the issue that we are discussing.

The Government also consider that the amendment in its present form would be practically unworkable, applying as it does directly to all public officials who may be involved in the context of a major incident. It would apparently require maybe dozens of officials, junior as well as senior, to come to individual and autonomous views on whether, for example, a particular document was in scope, or irrelevant, or privileged or covered by national security or whatever. That could easily give rise to many difficult and conflicting views, making the whole process almost impossible to manage and drawing civil servants into conflict with each other and their employers.

For those essential reasons, the Government do not feel that this is an appropriate way forward. The speakers in this debate did not raise the Post Office, which in some ways colours a lot of the background to this. On that point, I can say that the proposed legislation on the Post Office is clearly being driven by some very serious incidents of prosecutorial misconduct in breach of existing rules. We do not need new rules; they did not follow the old rules.

[Baroness Brinton (LD)]

It is good to see the Minister back in his place; we are pleased to have him back and I am very grateful for his comments. He mentioned the Post Office. I spoke about the importance of culture and making sure that things do not happen. While he is absolutely right on the legal side, there is an issue about the personal duty of candour that changes behaviour. Does he recognise that?

[Lord Bellamy (Con)]

Yes, the Government recognise that up to a point. What we are discussing is the right way to get there. The Government are not convinced that this statutory amendment is the right way, but there are other ways of doing it, through our codes and the provisions that we have for the NHS, the police and now the Hillsborough charter—the matters that have been mentioned.

I cannot go into specific detail on the Post Office, because we do not know what has happened, but the duty on a prosecutor to follow the codes that they must follow is a duty on that individual. I will not go any further than to make that comment.

Finally, in the spring, the Government hope to publish their response to a report by the Law Commission on reforming the common-law criminal offence of misconduct in a public office. We have to await that response to see whether it bears on the issues that we are discussing. With those points made, the Government recognise the sensitivity of and differing views on this matter. The Lord Chancellor’s Oral Statement on 6 December said, very explicitly, that we will keep it under review. While legislation alone and the Government’s view cannot ensure a culture of openness, honesty and candour, we do not rule out bringing forward legislation at some future point if we are persuaded that it is needed. The matter is still under reflection, from that point of view.

[Lord Ponsonby of Shulbrede (Lab)]

I thank all noble Lords who have spoken in this short debate. The noble Baroness, Lady Brinton, summed it up, really: while this is a probing amendment, it is about changing the culture and behaviour of organisations. I was talking to my noble friend Lady Thornton during this debate. She sits on an NHS trust and was saying that a culture is embedded in the way that the NHS practises its procedures now, which has come from it having a duty of candour for the last 10 or 11 years. The Minister made other points about addressing the same issues, so it is not as though one set of responses precludes another, such as the duty of candour.

Of course, I am pleased that the Lord Chancellor has said that he will keep an open mind on this and keep the matter under review. I acknowledge the Minister’s points about creating the independent advocate role, the review of legal aid and individual professional standards, which are being looked at, but none of them precludes also having a duty of candour. That was the point made by all who spoke in support of the amendment. Nevertheless, I thank the Minister for his response and beg leave to withdraw Amendment 133.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we also support this group of amendments. I want to reiterate the points made by my noble friend Lord Bach. You could not have had two more eminent Members of this Committee to table these amendments. The noble and learned Lords, Lord Burnett and Lord Thomas, are familiar with these types of decisions. I do not think I can add to the weight of the arguments put forward by the noble and learned Lord, Lord Burnett.

The only point I will make is about process. If the Minister says that he wants to think about this—I do not know what he is going to say—then it would be very helpful to know his thoughts before Report. From what I have heard of the argument, it seems that the Government have an uphill battle trying to defend the current position. If the Government are minded to think about this again, we really need to know what that is before Report.

[Lord Bellamy (Con)]

My Lords, the amendments proposed by the noble and learned Lords, Lord Burnett and Lord Thomas of Cwmgiedd, would mean that parole referrals under the new power in the Bill would be sent to the Divisional Court of the King’s Bench Division, which is part of the High Court, instead of the Upper Tribunal, which is currently used for most cases—although not for national security cases.

Noble Lords know that the Bill introduces a new power to allow the Secretary of State to refer a top-tier case—that is a case where the index offence was murder, rape, causing or allowing the death of a child, or serious terrorism—for a second check by an independent court if the Parole Board has directed release. The question is which court that should be. Noble Lords may recall that at one stage it was suggested—I think by a Select Committee—that it should be the Court of Appeal Criminal Division. The Government consulted the Judicial Office in June 2023. The result of that consultation was that a preference was expressed for the Upper Tribunal to hear those cases. The Upper Tribunal has wide-ranging powers under Section 25 of the Tribunals, Courts and Enforcement Act 2007, facilitated by the Upper Tribunal rules, which essentially gives it the same powers as the High Court. It has experience of hearing oral evidence. The Government’s view, in the light of the consultation with the Judicial Office, was that the Upper Tribunal was the appropriate court.

None the less, the Government feel that it is obviously desirable to sort this issue out in a sensible way and I am very happy to consider it further. I am even happier to say that the Government’s reflections will be shared before Report, so that everybody can consider their position. There should not be any particular controversy on this kind of point; it is a rather specialised point, if I may put it like that.

I turn to the amendments tabled by the noble Baroness, Lady Hamwee, and spoken to on her behalf by noble Lord, Lord Marks. The Government entirely agree with her that the processes ahead of us and how we are going to manage it should be very fully understood by all actors. I will briefly explain how the Government see things at the moment. First, the procedural elements of the new process may require amendments to the Parole Board rules and the tribunal rules—or the rules of whatever court we determine. That must be scrutinised by Parliament and go through a period of consultation. There will have to be a period of training of judges. We know that the referral process will need to be transparent and speedy. Work is currently in train as to how far this will be operationalised from the point of view, first, of maintaining public confidence and, secondly, on what basis the Secretary of State refers things to the relevant court—to use a neutral phrase for the time being.

Currently, the Government are working through exactly how the relevant tests would be applied. The Government propose to publish their policy on how the legislation will be applied, outlining how cases will be selected for referral and ensuring that prisoners, and importantly victims, are fully informed of who will be in scope. I envisage a transparent and open process by which the details of the new regime are sorted out.

[Baroness Hamwee (LD)]

Could I follow that up before the Minister goes on to the next point? Does he anticipate that there will be consultation with the sector—it is a very big sector of course—on the various points that he has quite rightly referred to? That would go down rather better and be much more useful than producing a policy in its final form and saying, “Here we are”. A draft policy or ideas for consultation would be welcomed.

[Lord Bellamy (Con)]

My Lords, I hear what the noble Baroness says, and it sounds entirely reasonable. I cannot, at the Dispatch Box, go any further than I have already gone, but the point is well made.

On that basis, I hope the Committee will be satisfied that the Government intend to be fully transparent and work co-operatively with the development of this new process.

Victims and Prisoners Bill

Lord Bellamy Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I thank all noble Lords who have spoken. I will first briefly recap some basic points that apply equally to the second and fourth groups of amendments that we will come to.

First, this Government recognise the highly regrettable history of this particular sentence. The Lord Chancellor himself has described IPP sentences as

“a stain on our justice system”.—[Official Report, Commons, 15/5/23; col. 592.]

As the noble and learned Lord, Lord Thomas of Cwmgiedd, rightly said, the question is what should be done. I will briefly summarise, to encapsulate our debate, what the Government think should be done.

The Government are making some very determined efforts to mitigate the situation of IPP offenders who are still subject to a sentence that was abolished in 2012. To bring noble Lords up to date, there were originally approximately 8,100 people subject to these sentences. Of those people, as of last December 1,227 had never been released, 1,625 had been released and later recalled, and there were still about 3,000 on licence in the community. Currently, as the noble and learned Lord, Lord Thomas, pointed out, an offender cannot apply to the Parole Board to have their licence terminated until 10 years after first release.

Taking the released and then recalled population first, this is a challenge because that population is slowly rising. The major statutory change in Clause 48 will reduce the qualifying period before the offender becomes eligible for licence termination from 10 years to three years from first release, with a presumption of termination after three years and an automatic termination two years thereafter—provided that the offender can pass two years in the community without further recall. That is, as I think the noble and learned Lord, Lord Thomas, said, a huge change and a major achievement for the Government to be proposing. It should substantially mitigate the problem of prisoners being released and then recalled, which we will come to in more detail as this debate continues.

Regarding the second cohort—perhaps the first, depending on your point of view—of those who have never been released, most of these people have come up before the Parole Board, which is responsible for deciding on their release. In many cases, this has happened many times and the Parole Board has decided that it is not safe to release them as the risk to the public is too great. What is the Government’s approach to that problem? Spurred on by the 2022 report of the JSC, to which I pay tribute, the Government are developing a robust, coherent and detailed action plan in consultation with relevant stakeholders, including the families, with the aim that each prisoner has a tailored sentence plan, appropriate support and clear objectives to work towards eventual release.

This last cohort is difficult, as the noble Lord, Lord Ponsonby, has just pointed out because, aside from having committed very serious offences, many suffer from trauma, mental health issues, substance issues and so on. However, the Government are determined to see this cohort further reduced and to get rid of the idea that there is no hope. In the Government’s view, no one has given up on the IPP prisoners who have never been released. They have to be worked on. That is a hard task, but one that the Government—any Government—should take on.

For example, the number of those released has been reducing over the last two years at roughly 200 per year. There are now 200 of these prisoners in open conditions who are being prepared for further release. It is not as if nothing is going on or as if things are just vegetating and no one cares. The Government are very focused on doing something about this most difficult cohort. That is the overall framework, which I hope your Lordships will view, despite the difficulties of the past, as something of a new beginning for the future.

With that background, I turn to Amendments 149 to 151 in the name of the noble and learned Lord, Lord Thomas. The effect of these would be that, if the Parole Board refused to terminate the licence at the new three-year point, the offender would have the right to apply annually to the Parole Board for a licence determination. As the Government understand it, the offender would be in the community rather than waiting out the two-year period, which results in the automatic termination of the licence. The offender would be able to apply to the Parole Board for termination after one year.

The Government recognise that released offenders in many cases need better support and have accepted all the recommendations to that effect in the recent report of the Chief Inspector of Probation on the recalls of IPP prisoners. However, the Government are not at present persuaded of the need for Amendments 149 to 151, on the following basis. If the offender has applied and the Parole Board, after three years, does not terminate the licence at that point, it does not seem to the Government unreasonable to expect the offender to spend two years in the community with the incentive of the certainty of licence termination at the end of that period. This amendment would enable the offender to make an interim application at the end of year four. That would impose further resource costs on the Probation Service and Parole Board because reports have to be prepared, hearings have to be convened and so forth. It would necessarily take the Parole Board several months to process that application.

We have come back several times in this debate to the pressures on the Parole Board and the time these applications take. It appears to the Government that, even if you could apply after year four rather than waiting until the end of year five, there is probably only a marginal gain for the offender. The Government are not at the moment persuaded on these amendments, although the Government continue to be in listening mode on this part of the Bill, as on every other part of the Bill.

Amendments 152 and 153, also moved by the noble and learned Lord, Lord Thomas, address what one could call in shorthand “questionable recalls”. I think there are two sorts of recall that we should be thinking about. The amendments suggest the possibility of the Parole Board disregarding a recall for the purpose of calculating the two-year period. Perhaps I may first clarify what is considered to be the existing position. If a recall is based on a fundamental mistake of fact—for example, the probation officer thinks that the offender has missed an appointment but the offender is in hospital because of a road accident the previous day—the Lord Chancellor considers that he already has the power in such a clear case to treat the recall as a nullity, as never having happened. That is a relatively clear case and I respectfully suggest that Amendment 152 is unnecessary.

The situation envisaged by Amendment 153 is effectively a challenge to the judgment call made by the probation officer about the recall. Technically it is a decision by the Secretary of State, but in practice of course it depends on the report by the probation officer. Amendment 153 would require the validity of that recall—the “appropriateness” of that recall, to use the word in the amendment—to be considered by the Parole Board and treated as a nullity if the board then considers that the recall decision was not appropriate. Although the Government understand the thinking behind the amendment, His Majesty’s Inspectorate of Probation found, in both 2020 and much more recently in 2023, that in practice HMPPS recall decisions are very largely appropriate.

At present, the Parole Board does not have any power to adjudicate on the appropriateness of the recall; its task is to decide on the issue of public protection and whether the offender is safe to release. For that purpose, the Parole Board will typically have much wider and more detailed information than was available to the individual probation officer faced with the recall decision. Amendment 153 would, however, turn the Parole Board process into an appeal from the recall decision and require the Parole Board, in effect, to second-guess what it would have done had it been the probation officer with the information then available to the probation officer.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble and learned Lord for giving way. I should like to better understand this part of the argument. When the noble and learned Lord said he is satisfied that in most cases recall is appropriate, did he mean recall in general or recall in IPP cases in particular? Secondly, when he was discussing the difference between decisions on executive recall on the one hand and dangerousness and public protection on the other, did he not think that there was a relationship between the two? When one is considering dangerousness, one might have a rather different view of what is required in relation to public protection if one or more recalls were inappropriate because they were for non-criminal, minor conduct that at no point presented a danger to the public?

[Lord Bellamy (Con)]

I thank the noble Baroness for those questions. As to whether I was speaking of IPP specifically, I cannot off the top of my head recall whether the 2020 work was specifically in relation to IPP, but certainly the 2023 work, which is the most recent and the most valuable and which I highly recommend everyone to read, was specifically in relation to IPP when the Government were considering what to do following the JSC report when concern was expressed that recalls might be being made inappropriately. That inspector’s report took a sample of recalls, studied them very carefully; it was thought that a small number were questionable but that the vast majority were appropriate on the basis of the information that the probation officer had at the time.

Up to a point, the circumstances of the recall are part of a general picture of the dangerousness of the offender—I accept that. But the real point is that, when the Parole Board comes to consider public protection, it will have much more information, very often much more up-to-date and fuller, than the information that was before the probation officer at the time, who might well have to take a decision in an emergency on very limited information, but because of the risk, as they see it, to public protection. So it is very difficult, in the Government’s view, to give the Parole Board power to go all the way back and say, “This was inappropriate”. However, having said that, I would like to come back to the question of recall when we get to Amendments 154 and 168, to be moved by the noble Lord, Lord Carter. It is a question of executive re-release on recall, which might be another way of approaching that problem. So that is the Government’s position.

--- Later in debate ---

[Earl Attlee (Con)]

My Lords, is my noble friend the Minister telling us that it is inconceivable that the Government would want to increase the licence period?

[Lord Bellamy (Con)]

I do not know that one would use the word “inconceivable”. The Government do not see any prospect of that happening at the moment.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this too has been a wide-ranging debate and more wide-ranging than that on the first group. I thank all noble Lords who have spoken because there are a number of amendments in this group, all of which push in the right direction. They are helping the Government to do what they say that they want to do.

The noble Lord, Lord Carter, moved Amendment 154, which is consequential on Amendment 168. That addresses what he called a lacuna and creates a power that mirrors the powers that the Secretary of State has to release prisoners serving a fixed-term licence. This is a very practical way of proceeding, and we support his amendment. My noble friend Lady Chakrabarti, in her characteristic way, asked why, if the Executive have the authority to recall, they cannot be given the authority to release—a very succinct way of summing up the amendment moved by the noble Lord, Lord Carter.

The noble Lord, Lord Moylan, in his Amendment 161, is effectively reversing the burden of proof for IPP prisoners. He described it as a nudge to the Parole Board and discussed how significant that nudge would be, but it is a welcome nudge, none the less. It has the historic credentials of being supported originally by Lord Brown of Eaton-under-Heywood. It is a welcome amendment.

We then had the very interesting intervention by the noble Lord, Lord Clarke, reflecting on the 2012 LASPO Act and that the provision was already in that Act and had just not been enacted by the Government. I remember the 2012 Act and the noble Lord, Lord McNally, taking it through the House as part of the coalition Government. I would be very interested to hear the Minister’s response to those points because it would be very difficult not to acknowledge the power of the arguments that have been put forward by noble Lords on Amendment 161.

The noble and learned Lord, Lord Hope, spoke to Amendments 159 and 160. He made interesting points about the independent scrutiny panel and other ways of pushing this in the same direction. We would support those amendments as well.

Perhaps the most moving speech was given by the noble Baroness, Lady Burt, when she read the email from the man who eventually killed himself. That amendment was about aftercare. As she said, we have damaged these people and we owe it to them to give them the extra support.

It was in that spirit that my noble friend Lady Blower, on her Amendment 164, spoke powerfully in favour of independent mentors, a pilot scheme and extra support in various ways. She was very powerfully supported by the noble and learned Lord, Lord Garnier, and the noble Baronesses, Lady Fox and Lady Hamwee. This seems to be a very practical way of supporting people. We have heard that the level of recall is increasing. This should be a mechanism of getting recall down, with people who are coming out of custody less likely to be recalled if they are properly supported.

This has been a wide-ranging debate. There have been a lot of practical suggestions and amendments. We want to encourage all of them, to get out of this Bill a package of measures to protect the public as appropriate and to move away from this sentencing regime, which has been so unfortunate for the last decade.

[Lord Bellamy (Con)]

My Lords, following on from what the noble Lord, Lord Ponsonby, said, the Government agree entirely that our joint objective is to arrive at a package of measures that sufficiently protects the public while dealing with the problems of this existing sentencing regime. That is our overall objective.

My noble and learned friend Lord Garnier invited us to be bold. I suggest that the Government are already being bold in reducing the licence period to three years in circumstances where even the JSC recommended five years. We have already gone further than that very distinguished committee suggested. I do not think that anyone could accuse the present Lord Chancellor of a lack of determination or hard work. To continue the analogy used by my noble and learned friend Lord Garnier of us plodding through treacle, we are really trying to find sensible answers to very difficult questions.

In addition, on the general point of hope and certainty and the very tragic case of Matthew, who committed suicide after he had been in the community for 10 years, as I said earlier these government amendments deal with that point. The “three plus two years” have an automatic determination that gives hope and certainty. That is a very large step forward. It is not a total answer to the problem, but I invite noble Lords to take account of the substantial progress that we are making.

[Lord Clarke of Nottingham (Con)]

I pay tribute to my noble and learned friend and his colleagues in the department, including the present Lord Chancellor and Justice Secretary, who I suspect would privately agree with everyone who has spoken so far on these amendments. As the Government are to be congratulated on the very bold and significant steps that they have taken, as the Minister quite rightly says, and as, to my amazement, we have not had any widespread public reaction to it or even any awareness of it, is there a chance that he could sneak one or two further changes through in the concluding stages of this Bill? I am sorry to talk in such Dog and Duck terms, but that is the political judgment that we all are seeking to make. Everybody wants to get rid of the worst evils of the old IPP sentence.

[Lord Bellamy (Con)]

I thank my noble friend Lord Clarke of Nottingham for inviting us to foregather at the Dog and Duck and consider what more can be done. I venture to suggest—hint is too weak a word—that there are things that we can still do. We may not be able to go as far as some of the amendments; in a moment, I will explain why the Government do not yet feel able—to my great personal regret—to accept the amendment proposed by my noble friend Lord Moylan. I will come to that in a moment. Let us look at what we think might be done and might be achievable.

I will take first Amendments 154 and 168, proposed by the noble Lord, Lord Carter of Haslemere. We have touched on the problem of recalls. We have noted that the Government are trying to reduce the delays in the Parole Board in dealing with recalls, which is one of the major problems. These amendments propose that the Secretary of State should have the power of executive re-release, which applies to fixed, determinate sentences. That is a power which in that context—forgive the jargon —is now referred to as a risk-assessed recall review, which is, in effect, a process for executive re-release. While the Secretary of State must have overriding regard to the need for public protection, the Government can see force in the amendments proposed by the noble Lord.

As I said earlier, those amendments might achieve by a different route the result of the amendments earlier proposed by the noble and learned Lord, Lord Thomas, in order to deal with the problem of inappropriate or other circumstances in which it would be right to exercise an executive power to re-release. If I may say it between ourselves—all this feels within the family, as it were, but of course we are talking to the entire outside world—a particular problem that arises from time to time is where the offender in the community is arrested for a new offence; he is then recalled and the police do not prosecute. What happens then? That is a classic practical problem that the power of an executive re-release might address; I make no promises or commitments, but the Government wish to engage further on this aspect as proposed by the noble Lord, Lord Carter, and supported by other noble Lords, and will give further consideration to it prior to Report. That is that.

Amendment 158, tabled by the noble Lord, Lord Blunkett, and the noble Baroness, Lady Chakrabarti, in relation to prisoners imprisoned under the so-called “two strikes” legislation under the Crime (Sentences) Act 1997, is a bit more complicated. As I understand it, although that legislation was abolished in 2005, similar legislation was reintroduced in 2012 and is now to be found in Section 283 of the Sentencing Act 2020, which provides for a life sentence for a second listed offence, the listed offences in question being set out in Schedule 15 to that Act. In terms of sentences of prisoners who are under some sort of two-strike legislation, we are dealing not just with the old 2005 cohort but with others as well. How we deal with those prisoners and in particular what would justify differential treatment of the various kinds of life prisoners we have seems to the Government an important and large question. The Government’s present view is that this problem is somewhat outside the scope of the Bill. That is not to say that we should not continue to consider it. The noble Lord, Lord Blunkett, should be congratulated on raising the issue and putting it further on the radar, and there would be no objection to continuing a dialogue on it, but in the context of the present Bill, it may be too far to go to deal with anything other than IPP. We will have to see, but, at the moment, the Government are not persuaded that that could come within the scope of the Bill.

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[Baroness Fox of Buckley (Non-Afl)]

Unlike other prisoners, they may have been up before the Parole Board many times, but this is long after their tariff has ended and the sentence originally given was handed out to them. That is quite a distinction from other prisoners. The suggestion that they are a particularly difficult group to manage because they keep going before the Parole Board slightly misses why they have become a difficult or different group. The main thing is that they would have been released if they were any other group of prisoners, yet they have to go to the Parole Board to say that they are safe and risk-free maybe five or six years after their tariff has ended. That is why people see the burden of proof being in the direction it is in. They also have to fulfil a range of courses and so on, which people are not convinced will even indicate that they are safe anyway, but we will get on to that. To the suggestion that we do not understand why anyone is raising this, it is because the set of circumstances for these prisoners is very different. That is why we are all here talking about it.

[Lord Bellamy (Con)]

My Lords, I entirely understand the point that the noble Baroness is making, which effectively encapsulates the problem that we are up against: how do we protect the safety of the public on the one hand and, on the other, deal with the outstanding problem? I think the Government’s point is that to make it easier to release those prisoners who are potentially most likely to cause harm is counterintuitive and unacceptable from the point of view of public safety.

[Baroness Fox of Buckley (Non-Afl)]

I did not suggest that they were more likely to cause harm. The argument is whether we accept that they are deemed dangerous and therefore cannot be let out through the Parole Board, because what deems them dangerous is a set of hoops that they have to go through and that do not necessarily indicate that they are dangerous. That is one of the difficulties with this. It is doublethink and double-talk.

[Lord Bellamy (Con)]

My Lords, as I have tried to say, the whole purpose of the action plan is to create a framework in which this cohort, properly managed, could progress to safe release, with sentence plans, psychological support, support from psychology services and other support towards a safe release. That is a better route than tinkering with the release test. I will not say it is exactly a legal quibble, but it is a bit of a legalism to be fiddling with the release test.

[Lord Clarke of Nottingham (Con)]

The problem is that the Parole Board is made up of real-life men and women with a very heavy responsibility. There is an underlying fear about the consequences of ever releasing somebody who then goes on to commit some terrible crime. The reality is that they contemplate the appalling reaction that they would get in the media, the public inquiry that would condemn them and the destruction of their reputation if they ever moved to let out somebody who did something terrible. Ministers share the same reserve when it comes to undoing this.

The proposal to alter the burden of proof was designed to give a little encouragement, a little more courage and a little help to people in getting over that fear of the recriminations if they ever made a mistake. It would be an explanation that the Parole Board could give if it had let somebody out. Then, it could detain only those where it was satisfied that it could see that there was a risk from the person being released. That would make a great change to the numbers being released. At this stage, in the interests of justice, the risk to the public is one that we should contemplate as not as severe as everybody fears.

[Lord Bellamy (Con)]

I see the force of the points being made by the noble Lord, Lord Clarke. I respectfully suggest that the fear of the media is not the driving force in the case of this Lord Chancellor or, if I may say so, his Parliamentary Under-Secretary of State currently at the Dispatch Box. We are looking at the real question of public safety.

If I may ask it rhetorically, who speaks for Pauline Quinn? Admittedly, that was not an IPP case. Pauline Quinn was aged 73, was disabled and could not protect herself. She was brutally murdered by a convicted killer released on licence. I respectfully suggest that these risks are very difficult for any responsible Government to take, irrespective of what the media might say.

This raises another point. At the moment the Government are not convinced that this would make a significant difference, because the Parole Board, even under the revised test suggested by my noble friend Lord Moylan, would still have to be satisfied on the issue of the protection of the public. It is perfectly likely that one is simply raising false hopes. It does not change the process that the Parole Board has to go through to look at these very difficult individuals, who are very much at risk of harm and very difficult to manage in the community.

If you read the 2023 report from the Chief Inspector of Probation, you see how difficult it is to manage these individuals—those who have already been released, not the unreleased cohort. This is a very difficult area. At the moment the Government are not persuaded rightly or wrongly that it is a correct approach to make it easier to release dangerous people. That is the Government’s position, and I have explained it as best I can.

[Lord Thomas of Cwmgiedd (CB)]

I want to ask the noble and learned Lord about the word “proportionate”. Is there an objection to that word? It is key, because it enables you, in judging safety, to take into account the responsibility of the state for what we have done to these people.

[Lord Bellamy (Con)]

The Government’s position, frankly, is that the word “proportionate” causes more difficulties than it solves. It suggests that the test should be some sort of balance between the risk that this prisoner may present to the public and some sort of fairness or other consideration of the particular interests of that prisoner. The whole thrust of the Bill—it is not just the clauses that we are dealing with at the moment but Clauses 41 and 42—is to say that the public protection test is a public protection test: that is the only criterion. So the Government do not, I am afraid, accept that “proportionate” is a useful or necessary addition to this clause.

[Lord Carter of Haslemere (CB)]

Should I wind up on this group?

[Lord Bellamy (Con)]

I just need to finish. Noble Lords come at me from all directions, which is perfectly fine, but I need to finish the group.

I turn next to the amendment proposed by the noble Baroness, Lady Blower, with the idea of mentors. I can see the point she is making, the strength of the argument and all those things, but it might be that this amendment overlooks what we have at the moment: the probation officer manager in the prison, who is responsible for that prisoner; the key worker in the prison, who is also responsible for that prisoner; and the community offender manager, who will look after that prisoner in the community. In addition, we already have in the prison all kinds of other support services, including the chaplains mentioned a moment ago by the right reverend Prelate.

The Government are hesitating about the wisdom of introducing yet another person into this already comprehensive structure—or what the Government believe is a comprehensive structure—by way of a statutory provision for mentors. That is not to say that there could not be better organisation of voluntary agencies or, despite what I have said, some other route to consider whether there are ways of strengthening the support of prisoners on some non-statutory basis. However, in view of the present arrangements for the prison offender manager, the key worker and the community offender manager via the Probation Service, the Government are not yet persuaded that mentors would be a proper statutory route to go down. I am sorry I could not get closer to what the noble Baroness is driving at. I very much thank her for her suggestions. I am sure that her intervention puts the question on the radar and advances the debate, but that is the Government’s position.

Amendments 165 and 166, tabled by the noble Baroness, Lady Burt of Solihull, are directed at clarifying entitlements to aftercare and related issues. It is perfectly true that Section 117 of the Mental Health Act 1983 provides that those who are entitled to that support should receive it, and the protection of mental health through the action plan is part of the action plan. There are further measures in that regard through the progression panels and the use of the psychology services.

People in prison are entitled to exactly the same range of health service care arrangements as people in the community, and there is a national partnership agreement with health and social care in England. I hope I am not seen as doing less than justice to these amendments, but the bottom line on this is that, through the action plan and other measures, there are wide-ranging efforts to support mental health aftercare and the mental health of prisoners. The Government are not yet persuaded that a statutory amendment to the Mental Health Act is required to advance that cause. On this, as in other contexts on this Bill, the Government are, of course, still in listening mode but, at the moment at least, we are unpersuaded that this is a proper way forward.

I hope that I have dealt, if not necessarily to noble Lords’ satisfaction, as best I can with the points made. I invite noble Lords not to press their amendments.

[Lord Carter of Haslemere (CB)]

My Lords, I am grateful to all noble Lords who have contributed to this constructive, powerful and moving debate, on all sides. Some heartfelt comments have been made. I could not begin to summarise them without detracting from their force. I thank all your Lordships for this.

I have written down some positive points, including some phrases shared by the noble Lord, Lord Moylan, and the noble and learned Lord, Lord Garnier, all on the same side. One was “unity of purpose”. That is encouraging. I think I even heard the Minister say “within this family”, which is a lovely phrase to use in debating something as emotive as this.

We have a unique opportunity. These occasions to make a difference for this cohort of prisoners, who have been treated so unfairly, do not come up very often. I urge the Minister to keep an open mind on everything that has been said and on these amendments, all of which would improve the position of IPP prisoners. I am very grateful to him, and encouraged by his reaction to my amendments. I urge him to have that same openness of spirit and to be bold for the sake of this group of prisoners, who have been treated so unfairly over the years. That injustice is continuing. With that, I beg leave to withdraw my amendment.

Victims and Prisoners Bill

Lord Bellamy Excerpts

Report stage
Tuesday 16th April 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too thank the Minister for his extensive consultation with me and colleagues on my side of the House, and with many other noble Lords who have taken an active interest in the Bill.

The noble Lord, Lord Russell, very adequately set out his amendment. It is not a matter for me, but my understanding is that he is unlikely to push it to a vote. If he were to do so, we would not support it, as I have explained to the noble Lord. Having said that, I acknowledge that there has been wide consultation and the Government are moving their own amendments in this group. I look forward to hearing the Minister's explanation of his amendments.

I will briefly touch on the personal testimony of the noble and learned Baroness, Lady Butler-Sloss, about her life as a family judge. I will also touch on what the noble Lord, Lord Russell, said about the meetings he went to with the victims, which I also attended. But I want to say something a little bit different. Of course, it was extremely upsetting, but I have to say that I was absolutely amazed by the resilience of the victims we spoke to and their keenness to help other child victims who still come forward today. I found that extremely admirable.

This is the first group, and we will be moving on to more contentious issues in subsequent groups. I look forward to hearing the Minister’s response.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I thank the noble Lord, Lord Russell of Liverpool, for moving his amendment, and those who have spoken in support of it. In particular, I thank the noble and learned Baroness, Lady Butler-Sloss, for her sobering words. I also salute the courage of the children who have participated in discussions about the progress of the Bill. I say to them: you have achieved quite a lot by participating in this discussion.

As I hope to explain to the House, the Government are absolutely clear that victims who are children have particular experiences of criminality that are different from the adult experience. They have different needs from adult victims and they therefore require a different approach. That, as I hope to explain, is fully recognised.

That said, the amendment in itself is not one the Government can support, for the simple reason that children are already included as victims under Part 1 of the Bill. The Government’s view is that that is manifestly clear, as a matter of legal drafting, across the statute book. As the noble Lord, Lord Meston, has just pointed out, “person” includes “child” and that is beyond argument. That is the customary usage across the whole statute book, and the Government are not persuaded that we need to make an exception in this case.

On the technical matter of legal drafting, as I have just emphasised, children are in a very special position when it comes to the victims’ code. That is why the current code sets out specific provisions for child victims and others who are considered vulnerable or intimidated. Those are known at the moment as enhanced rights. That is also why we have committed—and I therefore recommit the Government—to ensuring that the new victims’ code, which will go out to consultation as soon as we have Royal Assent, fully addresses the needs of child victims in particular. We shall seek views on the proposals regarding children in that public consultation.

I come to the government amendments in this group. In particular, we have listened carefully to the arguments for greater assurances as to the Government’s intentions, which is why we are proposing government Amendment 21, mentioned by the noble Baroness, Lady Brinton, which will ensure that the Secretary of State must consider whether different provision is required in the code as a result of the particular needs of children, now defined as those under the age of 18, and those with protected characteristics, when the new code is prepared and during any future revisions to the code. Although this group is about children, I entirely take the point made by the noble Baroness, Lady Brinton, about other vulnerable persons, who are also covered by Amendment 21. That is a perfectly fair point, and one that the Government have well in mind.

The Government are delighted to have worked constructively with the Children’s Commissioner to consider how the victims’ code can better reflect the distinct needs and experiences of child victims. I am pleased that the noble Baroness expressed personally to me the other day her strong support for this amendment and her personal appreciation of the Government’s work in this area.

To move on through the Bill, in addition, Clause 11 requires the Secretary of State to issue guidance for agencies delivering code awareness and compliance duties, which will specifically include guidance on how sensitively and effectively to gather information on children. Clause 13 states that commissioners under the duty to collaborate must consider the specific needs of children when preparing their joint needs assessments and local strategy. Clause 15 requires the same when issuing guidance on support roles. I hope noble Lords might accept that we now have, in the Bill itself and prospectively in the revised code, very full provision for children.

The word “children” is a slightly colloquial term—it can mean a number of things to different people—so, for absolute clarity, we have tabled amendments to change the references to “children” in Clauses 11, 13 and 15 to

“individuals who are under the age of 18”

to make it clear that there is a very clear legal cut-off for the special requirements of children, which is those under the age of 18. Those are Amendments 54, 63 and 74.

Finally, I add also that we have heard the concerns about young victims not always being able to engage with the code or understand the sometimes overcomplicated documents that the Government produce. On behalf of the Government, I commit to developing an accessible version of the new code—a “child-friendly” version, if I may refer to it colloquially—which we also intend to consult on post Royal Assent, as we recognise that we can do more to improve the accessibility of these provisions for children themselves.

All that said, I think I have already explained that the Government do not, for what I must confess is a somewhat technical reason, but a real reason none the less, support the proposal to change the drafting as suggested in Amendment 1. But I hope that I have sufficiently explained the supreme importance of children, and the Government’s recognition of that importance.

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[Baroness Newlove (Con)]

My Lords, apologies; I have a migraine and I think the medication has messed with my head. I meant to talk also to Amendments 3 and 6.

Although, again, I appreciate all the informal meetings and the meetings with my office, I still wish to make a point about the impact of anti-social behaviour. It is generally accepted that victims of persistent anti-social behaviour can suffer enormous anguish and harm. Indeed, that is the rhetoric that we hear, but people really do not grasp and do not see what is underneath. I say this because I have met many victims who are unable, sadly, to live in their own home: parents who tell me their teenage children have had to leave the family home sooner than otherwise to escape distress, and grandparents who are no longer able to look after grandchildren in their own home as they fear for their well-being. This is first hand from the very people who suffer on a daily basis. The intolerable strain this behaviour can have on personal relationships, the adverse effect it can have on children’s behaviour in school, the terrible difficulties for adults coping with this stress while holding down employment—all this is due to the trauma caused by persistent anti-social behaviour.

One of the recurring messages I hear from these victims is that they feel they are going through this nightmare entirely alone. All too often, police officers, housing officers and local government officials who are dealing with their complaints fail to recognise the level of harm being caused. In many cases, these officials even fail to acknowledge that the victims are being wronged. Some police officers are all too quick to tell the victim that it must be six of one and half a dozen of the other, no doubt in an attempt to avoid investigating the complaints. Let me tell noble Lords that that statement can have a devastating effect on the victim.

Yet, as was acknowledged by the Minister and officials when we met last week, the vast majority of these victims are victims of crime. As such, under the victims’ code, they are entitled to receive support from victims’ services. Yet I know that all too often, victims are not advised of this, nor is any referral made. Why not? Because the police do not want to tackle the issue through criminal action against the perpetrators. A victim’s entitlement to support does not depend on a decision by a police officer on what action, if any, they plan to take against the perpetrators. Once the action of the perpetrator reaches the criminal threshold, the victims’ code entitlements are automatically activated.

The amendment tabled by the noble Lord, Lord Russell, seeks to plug this gap. I recognise that there are many other ways in which we can achieve this objective. It is hugely reassuring that this amendment has prompted a discussion between Ministers and officials in the MoJ and the Home Office. I look forward to hearing my noble friend the Minister’s response to these discussions and hope that the measures which he sets out today provide reassurance, not only to this House but to the many victims of anti-social behaviour across this country, who have suffered alone and are sitting in silence as we speak about this behaviour today.

[Lord Bellamy (Con)]

My Lords, I thank all noble Lords who have contributed to this part of the debate, where we are discussing extending the definition of “victim” and providing mechanisms for dealing with four different areas: anti-social behaviour; child criminal exploitation; victims abroad; and carers of victims of serious sexual and violent crime. I thank noble Lords for their thanks and reciprocate to everyone in the House, on all sides, who has collaborated with the Government generally on trying to move this Bill forward.

It is not, as the noble Lord, Lord Ponsonby, said, that the Government lack sympathy for the various points that have been made—quite the contrary. For various reasons, some technical, some substantive, the Government do not feel that the statutory amendments in this group are the right way to go in changing the statute, as distinct from other means of addressing the issue.

I will deal first with anti-social behaviour, and pick up some of the most moving remarks that the noble Baroness, Lady Newlove, has just made, The Government have listened very carefully to these concerns. The impact of persistent anti-social behaviour, and the need to deal with it, is very firmly on the Government’s radar. However, the first point to make is that which the noble Baroness has just made: almost all cases of persistent anti-social behaviour of the kind that are causing real damage are already criminal conduct. In a most moving letter to me of 4 April, the noble Baroness, Lady Newlove, made exactly the same point, saying that this is already a crime, and so people are already entitled to the protection and services available under the code. The question is how we do this in practice. How do we join the dots, if I may put it like that, and overcome the widespread fallacy that because the police have not done anything one is no longer a victim? The police not having done anything does not mean that victim services should not be available. That is the practical problem that we are facing.

At the moment, the Government are not persuaded that this amendment would solve the practical problem. It has one significant disadvantage—possibly an inadvertent disadvantage—in that it would extend the code to non-criminal behaviour that falls within the context of anti-social behaviour. With cases of loud music and so forth, which really is a nuisance, such lesser kinds of anti-social behaviour would benefit from the victims’ code. In the Government’s view, that is not a good or desirable result, because it would mean extending victim services, which are already very stretched, away from the really serious problems and difficulties that victims are facing to lower levels of anti-social behaviour. That is perhaps an unintended consequence but not one that the Government particularly want to encourage via this amendment. Therefore, the amendment is too widely drawn.

To step back, rather than going down the route of this amendment the Government propose, in line with other improvements to the code in other areas, to update the anti-social guidance where necessary to ensure that, when a crime is identified, victims are informed of their entitlements under the victims’ code. The Government’s intention is to explore and consult on how best to make clear in the new victims’ code that its entitlements apply to persistent anti-social behaviour where the criminal threshold is met and that police are required to refer people to support services regardless of whether there is sufficient evidence to charge or whether they are going to pursue any particular action. If we get the code right on this point, it will help victims and service providers to recognise that failing to refer these victims to support services could be a breach of the new duty—which we will discuss in the next group—to act in accordance with the code.

On top of that, the code’s compliance mechanisms, at Clauses 6 to 11, will shine a light where non-compliance issues are found to be systemic. That will enable robust additional tools and steps to be brought to bear when agencies fall short. As we will explain in the next session, the Victims’ Commissioner will play a very central role in overseeing this new code, and be consulted on all its aspects and on ensuring that we join the dots and that this problem finally is tackled.

In addition, the Criminal Justice Bill, currently making its way through the other place, particularly in Clause 81, addresses some of the existing concerns and processes to tackle, among other things, persistent anti-social behaviour, including promoting awareness of the review process and setting out more consistently what local policing bodies have to do, so that victims can expect a more consistent service.

Rather than going down one particular way of dealing with this problem, which is the subject in the amendment, and which may have unintended and too wide consequences, the Government’s position is to tackle this through the code. We will continue, of course, to engage with the Victims’ Commissioner and seek her views on our work in this area. She is particularly well placed to help the code, the Government, the local police forces and so forth develop proper mechanisms for joining up these dots.

There are parts of the country where this is working quite well, so let us not throw the baby out with the bathwater. Because of the way in which the assessments will be made, and because of the oversight that is envisaged in the structure of the Bill, there will be ways of bringing the less well-performing police forces and local services up to the level of those that do it properly. That will ensure that victims know how to access these services.

Let us not forget that there is a wider anti-social behaviour action plan, which goes hand in hand with this. There has been £160 million of new funding to tackle anti-social behaviour. With these various routes and approaches, and determination to tackle the area, that is the Government’s position. We respectfully suggest that it is a more positive, sensible, broadly based and effective way of doing it than this amendment, well-intentioned though it is. That is the Government’s position on anti-social behaviour.

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[Baroness Brinton (LD)]

I was trying to make the point that the noble and learned Lord has started to make: there are lots of different agencies involved, and they do not collect the same, consistent data. Something on the face of the Bill would ensure that the data was consistent and would help everybody.

[Lord Bellamy (Con)]

Again, that is going a little bit further than either the amendment or the Bill as it stands, because the collecting of data in this area is a very complicated task, and we know that collecting data in general is quite tricky. What I am saying is that I am not entirely convinced at the moment by the argument put forward by the noble Baroness. In all respects, the Government consider that the amendment would not really take things further. Extending the definition of a victim is unnecessary because the issue is already covered.

I should say a word about the county lines problem. A full county lines programme has been in operation now for some years. The figures I have are that we have had 16,000 arrests and 9,000 safeguarding referrals. The Government are working very hard on dealing with the county lines problem, and there is special support through the county lines programme for children involved in that. It is clearly a difficult area, but it is not that nobody is tackling it. Would the amendment take the issue forward particularly in the county lines situation? I respectfully suggest that that is doubtful. So that is the Government’s position on child criminal exploitation.

On homicides of British nationals abroad, again the Government are entirely sympathetic to the various points that have been made. On a point of detail, since we are talking about what the victims’ code should cover, if the perpetrator of the murder is another British national, then that can be an offence triable in this country and it would trigger the application of the victims’ code. But most of these cases will be where the perpetrator is not a British national, and it seems reasonably clear that, where the offence or murder or homicide is in Ecuador or Peru or South Africa or wherever it is, large parts of the victims’ code by their nature will not be applicable. The various rights to information, the various rights about prosecution decisions and the right to make a personal statement would all, by the nature of the situation, not apply. From a quick look at the victims’ code, rights 1 to 3 and 6 to 11, for example, just would not apply. I think that leaves, essentially, right 4, which is the right to victims services. At the moment, the support available is provided by the Homicide Service, which in the United Kingdom is provided by Victim Support, a most excellent organisation, to which the Foreign Office can refer victims.

So there is already, by proxy, support for victims of homicide abroad, but I think that the complaint is that it is not sufficient. Hearing that complaint, the Government, as we develop the new victims’ code, will review the information provided for bereaved families of victims of homicide abroad so we can be clear what the entitlements of families are. The NPCC, the FCDO and the MoJ have committed to working together to explore separate guidance, to be referenced within the code, specifying the roles and responsibilities of each department and their services. That would act as a public commitment on how they will work together to support bereaved families and, I think, provide the consistent protocol—to use the words that were being used some moments ago—to assist families in this very difficult position.

Finally, in relation to the amendment regarding carers—

[Baroness Finlay of Llandaff (CB)]

I am grateful to the Minister for his response. In the plan he has just outlined of the three departments working together, does he envisage establishing a checklist that FCDO staff in every embassy and consulate will have that will mean they will prospectively know about interpreters and appropriate lawyers who could be pulled in, in the event of there being a homicide in that jurisdiction, so that some of the problems that have arisen to date would be avoided by each consulate and embassy being adequately prepared? Will the education behind that become mandatory guidance, so we would know that, in practice, a clear system had been set up? I would be grateful if he clarified that, because simply the three departments working together here might not influence what happens on the ground elsewhere, learning from the experience of other places.

[Lord Bellamy (Con)]

My Lords, I do not think I can, at the Dispatch Box this evening, commit the Government to proposing such a checklist in that detail, because the details will have to be worked out. However, the Government hear what the noble Baroness says and it is an obvious matter to consider. That is as far as I can go this evening.

Finally, I hope the noble Baroness, Lady Brinton, will forgive me if I take the question of carers a little bit shortly. The central problem with the amendment is the extension of the code and the rather blurred boundaries that might lead to quite a lot of extra resource demands, extra entitlements and so forth, so the Government are not persuaded that we should go as far as that. However, this point is correctly raised as a social and quasi-legal issue, and I can commit that the Government are already working with the Children’s Commissioner specifically on children’s needs and looking afresh at the needs of vulnerable adults ahead of public consultation on the code. I can commit to considering the experience and needs of parents and carers as they support particular victims through the criminal justice system. As to whether that requires further provision, I can commit to carefully considering how the accompanying statutory guidance might best set out how criminal justice bodies can effectively engage with the very important group that the noble Baroness identifies, who are so key to the support of their loved one, the direct victim, but I think that is as far as I can go on this group.

[Lord Russell of Liverpool (CB)]

My Lords, I thank the Minister very much for summing up so comprehensively —in fact, going over the new Report stage time limit, for which I am grateful. The issues we are talking about, in particular murder abroad, anti-social behaviour and the definition of child criminal exploitation, are long standing and not new; they come back again and again. However, as the noble Baroness, Lady Newlove, said, in a situation such as in 2015, after the incident in Tunisia, the Government decided that they were going to do something about it, got their act together in short order and demonstrated what is possible if they really put their mind to something. In a sense, that is what we are challenging the Government to do, in separate ways, on each of these issues.

On anti-social behaviour, the Minister talked about joining the dots and getting the code right. He admitted that it is not as joined up as it should be. The problem that I think many of us have with the way the Government are responding to some of these issues is that they keep returning to saying what different agencies and individuals should be doing, but they seem very afraid to say what they must be doing. The common theme in all these areas is that we are challenging the Government. Indeed, what are a Government elected to do—albeit not by noble Lords, because we are not allowed to vote—if not to make things happen? That is really what we are looking for. In the case of anti-social behaviour, if the noble Lord, Lord Ponsonby, decides to test the opinion of the House I would fully endorse that.

On child criminal exploitation, the updated guidance is fine. The key, as ever, is consistency, and at the moment there is a lack of consistency. The Minister said, and I am quoting, that it should be “in the heads” of front-line practitioners. The fact is that it is not in their heads in the same way for all the key front-line practitioners. That is the complexity. The challenge for the Government is to try to get a degree of consistency in the way child criminal exploitation is understood and dealt with, which is clearly not the case at the moment, so there is more to be done.

I thank my noble friend Lady Finlay very much for what she said about homicides abroad. I take the point about what happens if the perpetrator is not a UK national but, again, if the Government really wanted to put their mind to this, I am sure they could find a way. We are talking about such a small group—60 to 80 individuals per annum. It is not beyond the wit of man, let alone a Government, to focus and try to find a way of ameliorating a situation that has been festering for years and really does need to be dealt with. We also have more to do on carers.

I reiterate that the challenge for the Government is that we are looking for guidance from them as to what must be happening, not simply what should be happening. That has been the case for the last 15 years, and what should be happening is not happening in so many areas. With that, I beg leave to withdraw my amendment.

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Moved by

[Lord Bellamy]

9: Clause 2, page 2, line 13, after “functions” insert “of a public nature”
Member’s explanatory statement
This amendment clarifies that the victims’ code issued under Clause 2 is directed at persons exercising functions of a public nature relating to victims or any aspect of the criminal justice system.

[Lord Bellamy (Con)]

My Lords, in speaking to the relevant government amendments on the victims’ code and compliance, I will summarise the ways in which the Government have strengthened the code and the framework in which the various duties under the code arise.

There are essentially seven points to make quickly. There is a new statutory duty on agencies to act in accordance with the code and a statutory duty to have a complaints procedure. The amendments set out what is now required instead of what “should” happen. There is a duty on Ministers to review the code, and to publish an annual report on compliance and lay that before Parliament. There is a power to issue non-compliance notices, a most important enforcement mechanism. There is significant strengthening of the role of the Victims’ Commissioner, who is empowered to keep under review compliance with the code; has a right to be consulted on all the regulations and guidance, and the code itself; and will also be part of the ministerial task force to enforce the code and the statutory guidance under Clause 11. Those are the various amendments which I will move, but I summarise them as a package so that people can see the whole package as an important strengthening of the code. I hope we have arrived at a very considered position in relation to the status of this code.

I will go through the amendments in turn. Government Amendment 31 would place a statutory duty on relevant agencies to provide services in accordance with the victims’ code unless there is a good reason not to. This duty does not give agencies licence in any way to ignore the code. It allows for a bit of operational discretion to cope with circumstances where the agency is, for whatever reason, short of resources or cannot quite meet the timescale or whatever, but it places that statutory duty firmly on the agencies. In addition, Amendment 31 places a duty on relevant agencies to have complaints procedures for non-compliance with their duty to provide services in accordance with the code. That is a duty that has been elevated from the code into the statute, to demonstrate that complaints must be taken seriously and victims should receive the level of service they are entitled to and deserve. Government Amendments 33, 38, 40, 42, 98 and 99 are consequential on that.

There is a short amendment, Amendment 9, that makes it clear that the victims’ code is applicable only to

“persons exercising functions of a public nature”.

That is a small tidying-up amendment and is, I hope, not controversial.

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[Baroness Thornton (Lab)]

My Lords, there is great consensus across the House to say thank you to the Minister and his team for the steps that have taken us forward. I went through all these amendments to look at what they contained. They reminded me of the debates that we had in Committee about the things we wanted to see strengthened in the Bill. We should be pleased that we have made such progress. The Minister has done a great service to the victims’ code and compliance. I am also with my noble friend, in that it is a good start but we would like to go further. I think the noble Baroness, Lady Newlove, echoed that.

We would be very pleased on these Benches to support the noble Baroness, Lady Gohir, in her amendment. I have been in the House for 26 years and have been in a similar position as a Back-Bencher on something I really cared about and thought should happen. It is possible that we may have a solution from the Liberal Democrat Benches, and that would be great, but there is always another Bill coming down the track. I can say from these Benches with some certainty that, if there is another Bill coming down the track and the noble Baroness goes for it again, we will support her. It sometimes takes a little while but, quite often, if you have an issue that you care about—I think this is a really important issue—you will get there. But perhaps the Minister will say yes to the noble Baroness —let us hope so.

The second issue is in the amendments about training, both of which are very important. We will certainly support the noble Lord, Lord Russell, in his amendment at the appropriate time, when it is dealt with. This is a very good example of how the House works best when we continue to talk to each other about all the things that we want to see happen. It is amazing how often you start a Bill and the Government Benches and the Bill team think that the Bill they have is perfect—of course they do—and should not be changed, but the iterative process of discussion and debate we go through in this House does improve legislation. This is a good example of that.

[Lord Bellamy (Con)]

My Lords, I thank all noble Lords for the sincerity with which their various points have been made. I will briefly reply to the amendments not proposed by the Government. Unfortunately, while understanding all the points that have been made, the Government are not in a position to accept the amendments as they are. Although noble Lords have been kind enough to say that this is good progress and to express their thanks, I make it absolutely clear that I work with my right honourable friend the Lord Chancellor Alex Chalk, and he is the boss, and my right honourable friend Minister Argar was responsible for this Bill in the other place. Although it is very kind of noble Lords to make compliments to me, they should please bear in mind that I am part of a wider team, supported by an excellent staff.

We are not in competition with Marsham Street—or at least, we do not see it that way—but under the present Lord Chancellor, progress on this Bill has reflected the current ethos of the Ministry of Justice. I fully welcome and support the plea from the noble Baroness, Lady Chakrabarti, for more financial resources for the Ministry of Justice; that would be wonderful. But we work with what we have and, of course, some of those constraints have provoked the Government’s inability to go quite as far as others would like.

Amendments 23 and 122, from the noble Baroness, Lady Chakrabarti, would place the victims’ code in a schedule to the Bill and make related changes. I hope I have reassured her on our strengthened approach, and that compliance with the code is not optional. It may have been seen as optional in the past, but this is quite a change. As an alternative to Amendment 32, which would promote enforcement through the courts, we have a different non-compliance notification process which I hope will be equally effective. We are very reluctant as a Government to go down a court-based route because that can take up more resources and be less effective and more counter-productive than other routes.

We are very much in favour of the other routes that we have developed, I hope comprehensively, in the Bill, including the need to have clear compliance procedures, bolstering the accountability framework to make sure that there is appropriate recourse and, in particular, relying heavily on the independent scrutiny of the Victims’ Commissioner. So those various mechanisms collectively should give us a good framework; let us give them a good try and see, as noble Lords have suggested. At some point we may need to go further, but this is a good start, is it not? That question is rhetorical, so noble Lords do not have to answer.

Amendments 24, 26, 27, 29 and 30 concern consulting the Victims’ Commissioner. We have effectively covered the same ground in the Government’s amendments, and I do not think I need say any more about that. We have not gone down the route of putting all this through the affirmative procedure. I am not entirely persuaded that the affirmative procedure is as good as it might be, in that you can only say yes or no, et cetera. But the procedures we have for bringing the code into force, reviewing it, issuing it and consulting on it are all good and should work quite well. I hope that, in the light of that, there is no need to pursue those amendments.

Similarly, Amendments 55, 68 and 69—the latter being one of the amendments proposed by the noble Lord, Lord Russell of Liverpool—concern consulting various commissioners and “by and for” services on the duty to collaborate. I am very grateful to all the commissioners who have collaborated with us on developing these measures. We will publish draft guidance on this part of the Bill, but the Government’s position is that the overall framework we have for consultation and publishing guidance is already sufficient and appropriate.

Of course, the department will continue to engage with all national commissioners. I am particularly grateful for the support of the Victims’ Commissioner. I mentioned earlier the Children’s Commissioner, and I work very closely with the Domestic Abuse Commissioner. They are all making a very significant contribution to a better system. Of course, we will continue to engage with a whole range of providers, including the “by and for” organisations. It is very much in the Government’s interests to consult and engage as widely as possible, so there is no reason not to.

Amendments 46 and 47 would require code compliance data to be shared with the Victims’ Commissioner. We have put forward a number of amendments to make the central role of the Victims’ Commissioner clear. I hope these are sufficient to place the Victims’ Commissioner at the heart and centre of the system, remembering that they already have existing and separate powers to issue reports and recommendations, and, under this Bill, the agencies have to respond to them.

This brings me to the important subject of code training in Amendments 34 and 58 from the noble Lord, Lord Russell. He is rightly concerned about this and has emphasised it throughout. I do not at all hide behind this fact, but if you believe in devolution—and we have 43 different police forces, different local authorities and 43 police and crime commissioners—you have to accept a certain degree of difference in the way those authorities operate. That is inherent in any devolved system. None the less, it is of fundamental importance that front-line staff are adequately trained to support victims of all crimes. That is why I can and do commit to using the statutory guidance to be issued under Clause 11 to set a clear expectation that agencies should have adequate training on the code so that staff know what the code is, can inform victims of their entitlements under it and do their job in a way that complies with it.

The Government are of the view that legislation is not the right place for such matters, given the level of operational detail required and the diverse requirements of the various organisations delivering the code. However, we appreciate that there needs to be a mechanism to ensure that training not only exists but is effective. I believe we can achieve the right balance by committing to prescribing in the regulations that bodies must collect and share information on the training they have in place to ensure that the code is delivered effectively as part of the delivery assessments within the compliance framework.

[Lord Russell of Liverpool (CB)]

The Minister mentioned that he works very closely with the Domestic Abuse Commissioner. Given what I said about her experience that, for training, the statutory guidance which is part of the Domestic Abuse Act is very inconsistent, despite being statutory guidance, will he undertake to go back to her and explore in more detail what she has experienced since the Act was passed and see whether any lessons can be learned that can be applied immediately to this Bill?

[Lord Bellamy (Con)]

I am quite happy to accept the noble Lord’s invitation to have a conversation with the Domestic Abuse Commissioner to explore her experience and see whether it is transferable to what we are discussing here.

[Baroness Hamwee (LD)]

My Lords, I hesitated to intervene in this debate, but with the leave of the House I will add a thought for the Minister. Keeping training up to date is important because the understanding of the issues is developing quite dramatically. Nobody would have identified the acronym VAWG not that long ago and our understanding of what comprises violence against women and girls, for instance, is developing very fast.

[Lord Bellamy (Con)]

The noble Baroness, Lady Hamwee, as always, made a very pertinent point: we must have up-to-date training. Both learning and knowledge in this area are developing very quickly. That is quite a challenge for the authorities, but we should meet it— I fully accept that. Of course, under the compliance framework, there are powers to issue non-compliance notices and to understand why agencies are falling down. Almost certainly, a lack of training will be an explanatory factor in underperformance, so that will be overseen by Ministers, the criminal justice agencies and the Victims’ Commissioner.

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Moved by

[Lord Bellamy]

10: Clause 2, page 2, line 19, after “victims” insert “require”
Member’s explanatory statement
This amendment and my other amendments of subsection (3) of Clause 2 clarify the principles that must underpin the victims’ code issued under that clause.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I join the noble Baroness, Lady Brinton, in paying tribute to the noble Baroness, Lady Coussins, who has pursued this matter doggedly. We have all received emails updating us on the discussions. I too look forward to what the Minister says. We all have our own horror stories of inappropriate translation and interpretation. I am sure that the Minister has from his career, too; it is a feature of life in courts and the wider criminal justice system. Nevertheless, I will listen with anticipation to what the Minister has to say.

[Lord Bellamy (Con)]

My Lords, talking of experiences, my abiding memory is of a case in the county court where the interpreter opened the proceedings by telling the judge that he was deaf. Matters deteriorated from there.

I thank the noble Baroness, Lady Coussins, very much for her Amendment 13. The Government recognise that victims must be confident that the criminal justice process will be accessible to them so that they can participate effectively, regardless of their first language. We think that details of the specialist support services are better in the code, but I am very grateful to the noble Baroness for her constructive engagement on this issue.

As she is aware, we have been drafting strengthening content for right 1 of the victims’ code, which is the right to understand and be understood, ahead of publicly consulting after this Bill has received Royal Assent. This strengthened wording makes it clear that victims are entitled to access interpreting and translation services from qualified professionals. “Qualified” and “professionals” are the decisive words that the noble Baroness referred to. I hope that I have reassured her that we have heard and considered her arguments carefully and are committed to addressing their intent through the victims’ code. On that basis, I invite her not to press her amendment.

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Moved by

[Lord Bellamy]

14: Clause 2, page 2, line 24, leave out “should have”
Member's explanatory statement
This amendment and my other amendments of subsection (3) of Clause 2 clarify the principles that must underpin the victims’ code issued under that clause.

Victims and Prisoners Bill

Lord Bellamy Excerpts

Report stage
Tuesday 23rd April 2024 Lords Chamber

[Lord Hampton (CB)]

My Lords, I shall speak briefly to Amendment 61, in the name of the noble Lord, Lord Ponsonby of Shulbrede, and Amendments 62 and 71, in the names of the noble Lords, Lord Polak and Lord Russell of Liverpool, and the noble Baroness, Lady Benjamin. In this, as ever, I must declare my interest as a state secondary school teacher.

The great thing about following the noble Baroness, Lady Benjamin, and the noble and learned Baroness, Lady Butler-Sloss, is that it is like somebody doing your homework for you. All the way through this stage of the Bill, we have talked about children as being separate victims, and we got the “Uncle Tom Cobley and all” reason back—in that, if you have to mention one, you have to mention all in this. I think we have to be specific. The noble Lord, Lord Ponsonby, and I went to the Lighthouse child house and saw its model. We saw how, when victims are treated specifically, we can get higher levels of prosecution, better health for them in future and save money in the outcome. Why would you not do that?

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I thank all noble Lords for their contributions to this debate. I first bring forth the Government’s Amendment 75, which requires that Welsh Ministers be consulted on any guidance on victim support roles under Clause 15, so far as the content relates to devolved matters. Victim support roles may operate across criminal justice settings and include devolved health and local authority responsibilities. It is therefore right and entirely in line with the devolution settlement that Welsh Ministers are properly and fully consulted and that the Welsh context is properly reflected in the resulting guidance that will flow from that. I warmly thank the noble Lord, Lord Ponsonby, for his Amendments 72 and 73, which relate to this matter. It is the Government’s view that government Amendment 75 covers that ground and that it is no longer necessary for the noble Lord to press his amendment in this respect.

Amendment 61 is about consultation with providers who are under a duty to collaborate. It would create a mandatory requirement for relevant authorities to consult those providing support to child victims during the formulation of their strategy under Clause 13. We have just heard moving contributions on children. As I said last week during the debate, the Government have been clear throughout Part 1 that the distinct needs of children should indeed be taken into account. That is reflected in particular in Clauses 13(4) and 15(5), which specifically relate to children, now defined as individuals under the age of 18. Those clauses, among other things, require the commissioners to make reasonable efforts to obtain the views of relevant victims, which will expressly include children. The guidance will underpin that duty and set out best practice for consulting child victims and those who provide services to such victims.

We have fully discussed children. I do not think I need repeat anything that I have already said. The position of children is very widely recognised. Therefore, in the Government’s view, Amendment 61 is overtaken by the provisions that already exist in the Bill and what has already been said on behalf of the Government in this respect.

I come to Amendment 79 in the name of the noble Baroness, Lady Lister, which relates to support for victims with no recourse to public funds. I thank her for tabling that amendment. The code is clear that victims are entitled to access services, including support services, under the code regardless of their resident status. As has been mentioned, there is also access to funding and support through the migrant victims of domestic abuse concession. That mechanism was expanded last February to give victims who are here as the partner of a worker or student a short period of lawful status, financial stability and support while they consider their future options. That is a major extension of the concession that was first introduced in 2012.

Of course, the Government have heard the concerns raised about the need for a longer-term solution in this matter. Basically, two points arise. First, this is not that easy to address in the context of the wider immigration system and immigration policy. We cannot ignore the fact that there is a risk of creating a route that is attractive to some who seek to shortcut or abuse the immigration system, rather than the genuine victims of domestic abuse whom we all seek to support. That has to be worked through. However, if I may speak frankly, while the Government will of course continue to support this important matter, which has been raised many times in recent years, resources are not unlimited and this must now take its place in the next spending review. No doubt the Government will then come to a view as to how resources are allocated.

In the meantime, there is support under the migrant victims of domestic abuse concession. There is also the support for the migrant victim scheme, which provides wraparound support, including accommodation, subsistence and counselling to victims with no recourse to public funds. As I understand it, that has supported over 1,200 victims since April 2021. I would like to go further towards the noble Baroness and others who have supported this amendment, but I hope that what I have been able to say will at least persuade her not to press it further.

I come now to Amendments 60, 64, 66 and 67, which variously relate to guidance defining specialist community-based services for victims of domestic abuse, sexual violence and so on, as well as the funding gap, a requirement that sufficient funding is provided annually to the relevant authorities to commission the relevant victim support services, and the establishment of cross-government “by and for” funding services. It is quite a large group, but your Lordships will have the general picture.

First, I very much thank the right reverend Prelate and others for their engagement on these amendments, along with representatives from the sector. Of course, the duty to collaborate under the Bill will need to have regard to the joint needs assessments, and the local strategies, which will be published, should include evidence of how the relevant authorities have carried out their needs assessments, as well as how those assessments have informed commissioning decisions.

I can commit that noble Lords will see in the draft guidance, shortly to be available, that it will set a clear expectation for local commissioners to share both a self-contained joint needs assessment document and joint strategies with the Ministry of Justice to enable the Government to bring together local intelligence on need. I very much hope and expect that this will provide the national framework for addressing the problems raised in this debate.

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Moved by

[Lord Bellamy]

20: Clause 2, page 3, line 13, leave out paragraph (c) and insert—
“(8A) The victims’ code may make different provision for different areas.”Member's explanatory statement
This amendment is a drafting change to reflect current practice not to treat provision for different areas as provision for different purposes.

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Moved by

[Lord Bellamy]

25: Clause 3, page 3, line 28, at end insert—
“(b) the Commissioner for Victims and Witnesses, and(c) the Welsh Ministers.”Member's explanatory statement
This amendment, together with my amendment of Clause 4, page 4, line 22, requires the Secretary of State to consult the Victims’ Commissioner and the Welsh Ministers when preparing or revising the victims’ code.

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Moved by

[Lord Bellamy]

28: Clause 4, page 4, line 22, after “General” insert “, the Commissioner for Victims and Witnesses and the Welsh Ministers”
Member's explanatory statement
This amendment, together with my amendment of Clause 3, page 3, line 28, requires the Secretary of State to consult the Victims’ Commissioner and the Welsh Ministers when preparing or revising the victims’ code.

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Moved by

[Lord Bellamy]

31: Clause 5, page 4, line 27, at end insert—
“(A1) Where the victims’ code makes provision about a service to be provided to victims by a person, the person must provide the service in accordance with the code unless the person has good reasons not to. (A2) Any person who is subject to the duty in subsection (A1) and is not an individual must ensure that procedures are in place by which other persons may complain about an alleged failure to comply with the duty.”Member's explanatory statement
This amendment requires persons specified in the victims’ code to provide services in accordance with it, unless they have good reasons not to, and to have procedures for dealing with complaints.

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Moved by

[Lord Bellamy]

33: Clause 6, page 4, line 38, leave out “victims’ code” and insert “duty in section 5(A1)”
Member's explanatory statement
This amendment is consequential on my amendment of Clause 5, page 4, line 27.

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Moved by

[Lord Bellamy]

36: Clause 6, page 5, line 27, leave out “such” and insert “the Commissioner for Victims and Witnesses and such other”
Member's explanatory statement
This amendment requires the Secretary of State to consult the Victims’ Commissioner before making regulations under Clause 6.

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Moved by

[Lord Bellamy]

38: Clause 7, page 6, line 4, leave out “victims’ code” and insert “duty in section 5(A1)”
Member's explanatory statement
This amendment is consequential on my amendment of Clause 5, page 4, line 27.

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Moved by

[Lord Bellamy]

40: Clause 8, page 6, line 37, leave out “victims’ code” and insert “duty in section 5(A1)”
Member's explanatory statement
This amendment is consequential on my amendment of Clause 5, page 4, line 27.

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Moved by

[Lord Bellamy]

42: Clause 9, page 7, leave out line 40 and insert “duty in section 5(A1).”
Member's explanatory statement
This amendment is consequential on my amendment of Clause 5, page 4, line 27.

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Moved by

[Lord Bellamy]

44: Clause 10, page 8, line 26, at end insert—
“(A1) The Secretary of State and the Attorney General, acting jointly, must—(a) keep under review the code compliance of the persons mentioned in subsection (1), and(b) annually, prepare and publish a report about the code compliance of those persons in the period to which the report relates.(A2) If the Secretary of State and the Attorney General agree that the code compliance of a person mentioned in subsection (1) is unsatisfactory they may—(a) if the person is the chief officer of police for a police area, give the elected local policing body for the area a notice setting out their reasons for being of that view;(b) in any other case, give the person a notice setting out their reasons for being of that view.(A3) If the Secretary of State and the Attorney General give a notice under subsection (A2) they must—(a) if the notice is given under paragraph (a) of that subsection, send a copy of the notice to the chief officer of police to whom the notice relates, and(b) in any case, publish the notice in such form and manner as they consider appropriate.(A4) The Secretary of State and the Attorney General must consult the Commissioner for Victims and Witnesses before—(a) publishing a report under subsection (A1)(b);(b) giving a notice under subsection (A2).(A5) The Secretary of State must publish such compliance information as the Secretary of State considers will enable members of the public to assess the code compliance of the persons mentioned in subsection (1) in the period to which the information relates.”Member's explanatory statement
This amendment gives the Secretary of State and the Attorney General joint functions in relation to reviewing compliance with the victims’ code by police forces and other criminal justice bodies. The Secretary of State must also publish certain information in relation to the code compliance of such bodies.

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Moved by

[Lord Bellamy]

48: Clause 10, page 8, line 33, leave out “these purposes” and insert “the purposes of this section”
Member's explanatory statement
This amendment is consequential on my amendment of Clause 10, page 8, line 26.

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Moved by

[Lord Bellamy]

54: Clause 11, page 9, line 23, leave out “children or individuals” and insert “individuals who are under the age of 18 or”
Member's explanatory statement
This amendment replaces a reference to “children” with a reference to under-18s.

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Moved by

[Lord Bellamy]

56: Clause 11, page 9, line 34, leave out “such” and insert “the Commissioner for Victims and Witnesses and such other”
Member's explanatory statement
This amendment requires the Secretary of State to consult the Victims’ Commissioner before issuing guidance under Clause 11 on raising awareness of, and reviewing compliance with, the victims’ code.

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Moved by

[Lord Bellamy]

63: Clause 13, page 11, line 27, leave out “children or” and insert “under the age of 18 or who”
Member’s explanatory statement
This amendment replaces a reference to “children” with a reference to under-18s.

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Moved by

[Lord Bellamy]

74: Clause 15, page 12, line 31, leave out “children or” and insert “under the age of 18 or who”
Member’s explanatory statement
This amendment replaces a reference to “children” with a reference to under-18s.

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Moved by

[Lord Bellamy]

76: After Clause 15, insert the following new Clause—
“Disclosures by victims that cannot be precluded by agreement(1) A provision in an agreement is void in so far as it purports to preclude the making of a disclosure falling within subsection (2).(2) A disclosure falls within this subsection if it is a disclosure of information that is made by a victim or a person who reasonably believes they are a victim—(a) to any person who has law enforcement functions, for the purpose of those functions being exercised in relation to relevant conduct;(b) to a qualified lawyer, for the purpose of seeking legal advice about relevant conduct;(c) to any individual who is entitled to practise a regulated profession, for the purpose of obtaining professional support in relation to relevant conduct;(d) to any individual who provides a service to support victims, for the purpose of obtaining support from that service in relation to relevant conduct;(e) to a regulator of a regulated profession for the purpose of co-operating with the regulator in relation to relevant conduct;(f) to a person who is authorised to receive information on behalf of a person mentioned in paragraph (a), (b), (c), (d) or (e) for the purpose mentioned in that paragraph;(g) to a child, parent or partner of the person making the disclosure, for the purpose of obtaining support in relation to relevant conduct.(3) But a provision in an agreement is not void by virtue of subsection (1) so far as it purports to preclude a disclosure made for the primary purpose of releasing the information into the public domain.(4) The Secretary of State may by regulations amend this section—(a) to add, remove or modify a description of disclosure in relation to which subsection (1) applies (“a permitted disclosure”);(b) to extend the application of subsection (1) to a provision in an agreement which purports to impose an obligation or liability in connection with a permitted disclosure.(5) But regulations under subsection (4)(a) must not make any provision which would apply subsection (1) in relation to a disclosure—(a) made by a person other than a victim or a person who reasonably believes they are a victim, or(b) that does not relate to relevant conduct.(6) In this section—“entitled to practise” , in relation to a regulated profession, is to be read in accordance with section 19(2) of the Professional Qualifications Act 2022; “law enforcement functions” means functions for the purposes of the investigation or prosecution of criminal offences or the execution of criminal penalties;“partner” : a person is a “partner” of another person if they are married to each other, in a civil partnership with each other or in an intimate personal relationship with each other which is of significant duration;“qualified lawyer” means a person who is an authorised person in relation to a reserved legal activity for the purposes of the Legal Services Act 2007; “regulated profession” and“regulator” have the same meanings as in the Professional Qualifications Act 2022 (see section 19 of that Act);“relevant conduct” means conduct by virtue of which the person making the disclosure is or reasonably believes they are a victim (see section 1(1) and (2)).”Member’s explanatory statement
This new clause, to be inserted after Clause 15, would make a provision of an agreement void if it purports to preclude a victim from making certain types of disclosure, unless the disclosure was made in order to release the information into the public domain.

[Lord Bellamy (Con)]

My Lords, Amendment 76 has been tabled to clarify that victims of crime can get the support they need without fear of legal action under confidentiality clauses, also known as non-disclosure agreements or NDAs. NDAs can and do serve a valid purpose to protect commercially sensitive information and deliver a clean break where parties seek closure on an issue, but they have been misused to make victims fear repercussions if they seek access to justice or support services. Reporting a crime to the police is already protected under common law, but the legal position is not as clear as it could be. The Government wish to avoid a situation where NDAs might be used to prevent victims telling support services and close family about criminal conduct that has happened to them.

I am therefore pleased to bring forward this amendment, which makes it clear in primary legislation that confidentiality clauses cannot be legally enforced to the extent that they prevent victims reporting a crime or accessing confidential advice and much-needed support. It sets out who a victim can make disclosures to and for what purposes, which includes the police, regulatory bodies, lawyers, support services, and a victim’s partner, parent, or child. However, to protect legitimate uses of NDAs, subsection (3) of the proposed new clause makes it clear that disclosure to those permitted third parties must not be for the primary purpose of releasing information into the public domain, because we want to avoid a situation where somebody, for example, uses a lawyer to front up the disclosure of confidential information when that is not justified.

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[Baroness Thornton (Lab)]

My Lords, it is really a pleasure to respond to this group from these Benches, because there is real progress. It is important to record thanks to everybody who has made this progress happen. I very much welcome the clarification that the Minister has made in Amendment 76. The noble Baroness, Lady Brinton, is quite right, though, that this is a first step. Indeed, today a useful brief was sent to me and possibly other noble Lords from the Bar Council, which makes the point that the issue of non-disclosure agreements is ripe for legislative change. The Bar Council welcomes the Government’s intention to implement legislative reform and recognises that some NDAs are abusive in nature. NDAs cannot cover criminal acts, and under existing common-law protections many are already unenforceable, but those who are asked to sign them are not always aware of the relevant legal principles. When you have the Bar Council and everybody else on your side, you know that this is an important first step.

On the Government’s amendments, I welcome Amendment 85, as the noble Baroness, Lady Newlove, welcomed it. I thank the Minister and his team for listening and for bringing forward this amendment, which was aired in Committee very powerfully indeed by the noble Baronesses, Lady Watkins and Lady Newlove. Then, of course, there is a suite of amendments in the name of the noble Baroness, Lady Bertin. I was very pleased to be able to support these in Committee. These Benches are absolutely in favour of them; they have the support of the whole House. I know from the very long time ago when I was a Minister how much work goes into getting to this place. I congratulate the noble Baroness and say how much we are in favour of these amendments.

The noble Baroness, Lady Morgan, is absolutely right to be disappointed about the Government not accepting Amendments 87A and 88A. It is probably clear that we have not come to the end of this. The noble Baroness is quite right in nodding to say, “We have definitely not come to the end of this discussion about what needs to happen to support victims with requests for dealing with digital and other information, and providing the right kind of safeguards for them”.

The noble Baroness, Lady Meacher, is right, and she has our Benches’ support for her amendment. If there were to be a Division on this then it would be next week. Between now and then we need to look at what the Minister has said to see if we can push him a bit further than he has gone, and then maybe we could avoid that, but the noble Baroness needs to know that she has these Benches’ support, and probably that of the Liberal Democrats, if we need to take the issue further. All in all, we have made great progress.

[Lord Bellamy (Con)]

I shall answer a couple of questions and make one clarification. I think it was the noble Baroness, Lady Lister, who said, “Come on now, when are the code and the protocol going to be available?” I am afraid that, at this point, I cannot advance matters further other than to say, according to my instructions, that the code will be available for parliamentary scrutiny this spring—I know that is not as precise as anyone would like—and that the protocol will be launched later this year. These matters are under the control of the Home Office, and we had a discussion earlier about the relationship between 102 Petty France and Marsham Street. That is as far as I can go at the moment, and I apologise to the noble Baroness that I cannot be more precise.

I am prepared, as always, to have a further exchange of views on Amendment 96. I am not sure we can take it much further but we are always ready to listen, since throughout the Bill we are dealing with the problem of striking a balance between effective immigration control and victim support, and unfortunately there are always trade-offs to be made.

To respond to my noble friend Lady Morgan about requests for relevant information, new Section 44A(6) requires that the request is proportionate. The authorised person must be satisfied that there is no other means of obtaining the information or, if there are such means, that they are not practicable. The decision to release the information ultimately lies with the third party, and that third party has their own obligation under the Data Protection Act and their own duties of confidentiality owed to the person concerned. Again, I respectfully suggest that, bearing in mind my noble friend Lady Bertin’s amendments, the balance between fair-trial rights and victim protection is effectively drawn in the result that we have arrived at. It is not perfect, I know, but it seems to be a practical solution to a very difficult problem.

[Baroness Meacher (CB)]

I hope the Minister will forgive me for interrupting him, but I want to thank him for suggesting that we might meet to discuss Amendment 96 before we come back next week. Obviously, I would be delighted to have a discussion about that.

[Lord Bellamy (Con)]

I am always happy to meet, but we might not get much further.

[Baroness Meacher (CB)]

I just wanted to put on record that we have agreed that we will meet, and I welcome that.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, although this has been a relatively short debate, it has been quite comprehensive. All noble Lords have spoken with brevity about these sensitive issues.

I will highlight two points. First, I pick up the point of the noble Lord, Lord Meston, about how any order made by the Crown Court should automatically be reviewed by the family court. That was a useful addition to the amendment, although I suspect my noble friend may be pressing the amendments as they are. Nevertheless, I thought it was an insightful point.

My other point about Amendment 91, on psychologists and people with professional expertise, is that the problems extend beyond experts. In family courts, I see McKenzie friends who clearly have their own agendas, and it is an issue with which one has to deal—but that is a tangent to the main points in these amendments. If my noble friend chooses to press her amendment, we will of course support her.

[Lord Bellamy (Con)]

My Lords, we have before us various amendments that deal essentially with family justice. I will deal first with Amendment 91, which proposes that only experts regulated by the Health and Care Professions Council undertake certain psychological assessments. The Government entirely appreciate the aim of this amendment—something needs to be done. This problem probably extends to healthcare generally. In the Ministry of Justice, we have been in discussion with the Department of Health about the term “psychologist”, what it means, whether one should regulate it and so forth. The Government’s position is that only psychologists who are regulated should be undertaking psychological assessments in the family court.

The short point is that this is going to be better dealt with under the Family Procedure Rules than in primary legislation. In particular, in this Bill, for reasons of scope, you can deal with it only in relation to victims of criminal conduct. We need an across-the-board solution, worked out through the Family Procedure Rule Committee, to implement changes that would ensure that, where a psychologist undertakes any psychological assessment in private law children proceedings, they are suitably regulated and that that broader work encapsulates any other problems that arise in relation to unregulated experts. The position of the Lord Chancellor is that this matter should be undertaken now by the Family Procedure Rule Committee—which operates in very close collaboration with practitioners, judges and all those involved in the family law scene—to implement changes, rather than it being done through this primary legislation.

[Lord Meston (CB)]

I fully understand the point that the Minister is making. Can he indicate whether this problem has now been referred to the relevant Family Procedure Rule Committee? If it has, I would hope that it would get urgent and speedy consideration. If it has not, when will it be?

[Lord Bellamy (Con)]

There have been preliminary discussions with the committee but it has not formally started work. I cannot give the noble Lord a precise date, but I can say that there is a reserve power under Section 78A of the Courts Act 2003 which entitles the Lord Chancellor to require the Family Procedure Rule Committee to consider the point. In the Government’s submission, that is the way that this should be dealt with, rather than in this necessarily narrow Bill.

[Baroness Butler-Sloss (CB)]

Will the Lord Chancellor do that?

--- Later in debate ---

[Lord Bellamy (Con)]

It would be extremely regrettable if the Family Procedure Rule Committee were to refuse to embark on this exercise, particularly in the light of the comments made in the House today and in the other place. It is clearly something that should be done. That is as far as I can reasonably go at the Dispatch Box. That is essentially our position on Amendment 91: let us take it down the route of the Family Procedure Rule Committee.

Amendment 83 brings us to Jade’s law and Clause 16. This is where one parent murders the other. It is a very specific situation, because you have got only one parent left. In all other situations that we are discussing, you have two parents. Amendment 83 concerns where the parent who has committed the murder is a victim of domestic abuse. That is the purpose of this. The Government’s position—and I think the noble Lord, Lord Meston, came quite close to saying the same thing—is that this is effectively already dealt with in the existing Clause 16. It does not suspend parental responsibility for an offender convicted of voluntary manslaughter where it would not be in the interests of justice to do so.

We are talking here about a Sally Challen-type case, if I may use that expression. The “interest of justice” test is one with which Crown Court judges are familiar in the context of sentencing guidelines. Engaging the test is a matter for judicial discretion, but certainly in those cases where the victim has lashed out after years of abuse, they are very likely to fall within this exception, and that is why we have provided for voluntary manslaughter.

It does not seem to the Government that we need any more formal provision in the existing Clause 16 to take account of the situation where the murderer has suffered domestic abuse, because that is already implicit in the clause. If it were the case that, for some reason, Clause 16 was nonetheless to bite, it does, as has been pointed out, provide a pathway for review by the family court. The family court is not going to take away parental responsibility from a mother who has lashed out, if I may use that expression. The Government’s view is we do not need Amendment 83: it is already fairly well covered. I take these points quite shortly because I think it is important to keep this debate fairly short.

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Moved by

[Lord Bellamy]

81: Clause 16, page 13, line 22, after “step” insert “of any kind”
Member's explanatory statement
This amendment clarifies the extent of the restrictions placed on an offender with respect to a child by a prohibited steps order made under new section 10A of the Children Act 1989.

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Moved by

[Lord Bellamy]

85: After Clause 17, insert the following new Clause—
“Victim representations to mental health tribunals(1) Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 (victims’ rights to make representations and receive information) is amended as follows.(2) In section 37(8)(c)(i), for “that area” substitute “that local probation board”.(3) After section 37 insert—“37ZA Victim impact statements where restriction order made(1) This section applies if, in a case where section 37 applies, an application or reference mentioned in subsection (5) of that section is made to the First-tier Tribunal or the Mental Health Review Tribunal for Wales.(2) The relevant probation body—(a) must take all reasonable steps to ascertain whether a person who appears to the body to be the victim of the offence or to act for the victim of the offence wishes to provide a victim impact statement to the body, and(b) if the person provides such a statement, must forward it to the tribunal.(3) Where a victim impact statement has been forwarded to the tribunal under subsection (2), the tribunal must—(a) allow the person who made the statement to request permission to read the statement to the tribunal at a relevant hearing, and(b) grant such permission unless the tribunal considers that there are good reasons not to.(4) The tribunal may have regard to the statement when determining a matter specified in section 36(5)(a) or (b) (but must not have regard to it for any other purpose).(5) In this section—“relevant hearing” means any hearing held by the tribunal before making a decision which disposes of proceedings on the application or reference mentioned in subsection (1);“the relevant probation body” has the meaning given in section 37(8);“victim impact statement” means a statement about the way in which, and degree to which, the offence has affected and (as the case may be) continues to affect the victim or any other person.””Member's explanatory statement
This amendment makes provision for victims of certain serious offences, where the offender is subject to a hospital order with a restriction order, to provide a "victim impact statement" to a tribunal which is considering certain matters in relation to the discharge of the offender.

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Moved by

[Lord Bellamy]

86: Clause 18, page 17, line 17, at end insert—
“(za) in subsection (1)(c), for “section 32” substitute “section 2 of the Victims and Prisoners Act 2024, including the extent to which the duty in section 5(A1) of that Act (duty to provide services in accordance with the code) is being complied with”;”Member's explanatory statement
This amendment requires the Victims’ Commissioner to keep under review compliance with the victims’ code (see my amendment of Clause 5, page 4, line 27).

Victims and Prisoners Bill

Lord Bellamy Excerpts

Report stage
Tuesday 30th April 2024 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I am only going to congratulate the noble Baroness, Lady Morgan. I think she has shown huge patience and persistence. I am not surprised, because my honourable friend Stella Creasy has those qualities too. As the noble Baroness, Lady Brinton, said, should the Minister not satisfy the noble Baroness, Lady Morgan, we on these Benches are ready to support her in a Division.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, I do not think that any message could have been conveyed more loudly and more convincingly than the one I have just received. I thank my noble friend Lady Morgan for this amendment and thank the other speakers on this topic.

As your Lordships have heard, the amendment seeks to revise current data protection legislation so that victims of malicious complaints involving third parties can prevent the processing—and subsequently request the deletion—of personal data from that complaint. The issue has been raised previously in the other place and discussed in your Lordships’ House in Committee. As my noble friend Lady Morgan has just said, the Government indeed recognise that complaints of this kind can be used to perpetuate harassment and that victims should be better supported.

In addition, as my noble friend also pointed out, we have to strike a balance between the processes for erasure and removal of all traces of such complaints and harassment on the one hand and the need to have regard to safeguarding concerns on the other. The issue is how we strike the balance. The Government’s present view is that the amendment as drafted is not one that we can accept because it is too wide and poses some operational and safeguarding issues. However, we have heard the concerns and, although we cannot accept the amendment today, I commit the Government to bringing forward an amendment at Third Reading to address these concerns.

To explain a little, if I may, we have to triangulate several different aspects: the nature of the harassment concerned, the provisions and procedures of the GDPR, the child safeguarding issues that are the concern of the Department for Education, the different procedures for various criminal and civil orders, the relevant police procedures and a number of other considerations, so it is not entirely straightforward. However, although it is not ideal to bring forward an amendment at Third Reading, this is a complex area and we should take the time to find an appropriate solution.

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Moved by

[Lord Bellamy]

97: Clause 27, page 28, line 36, leave out paragraph (a)
Member’s explanatory statement
This amendment is consequential on my amendment of Clause 5, page 4, line 27 and Clause 18, page 17, line 17.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments is concerned with the scope and role of the independent advocate. I open by paying tribute to the work that my noble friend Lord Wills has done on this role for many years now through a number of Private Members’ Bills. If he chooses to test the opinion of the House on his Amendment 119AA, we will support it.

I shall speak briefly to the amendments in my name in this group. Amendment 104 would enable the Secretary of State to designate incidents causing serious harm or death to a small number of individuals as major incidents where there was a significant public interest in doing so. The noble Lord, Lord Marks, gave the example of Fishmongers’ Hall, where there were few fatalities but nevertheless it was a serious incident that had a national impact. The noble Lord and I will listen with interest to the Government’s response to Amendment 104.

Amendment 107 would require the standing advocate to communicate the views of the victims of a major incident to the Secretary of State. Amendment 109 would require the Secretary of State to consider the views of victims of a major incident on whether to appoint an additional advocate and who to appoint. Amendment 110 would place a requirement on the Secretary of State to consider the views of the victims of a major incident before terminating the appointment of an advocate appointed in relation to that major incident.

Amendment 111 would require the Secretary of State to make guidance under Clause 38 publicly available. Amendment 112 would require the Secretary of State to consult the standing advocate before issuing, revising or withdrawing guidance in relation to matters to which advocates appointed in respect of major incidents must have regard. I look forward to the Minister’s response to all those amendments, none of which I intend to press—they are essentially probing amendments.

I shall comment briefly on the amendment of the noble and learned Lord, Lord Thomas, about the situation in Wales. I listened with interest to what the noble and learned Lord, Lord Hope, said on the matter. I am not a lawyer, as I have said many times in this House, but the word used in the amendment is “concurrence”, not “consent”. I do not know whether that is a substantial difference but the whole of that mini-debate referred to the word “consent”, not the word used in the amendment. Nevertheless, the noble and learned Lord made an interesting and substantial point, and I look forward to the Minister’s response.

In conclusion, if my noble friend chooses to press Amendment 119AA, we will support him.

[Lord Bellamy (Con)]

My Lords, first I shall speak to the amendments tabled in my name, on behalf of the Government, which address the last point made by the noble Lord, Lord Ponsonby, about the relationship between the Secretary of State and the Welsh Government. Government Amendments 103A and 109A will require the Secretary of State to consult Welsh Ministers before declaring a major incident that occurs in Wales and before appointing an advocate in respect of that incident. I am aware that the noble Baroness, Lady Finlay of Llandaff, has tabled Amendment 109B, and the noble and learned Lord, Lord Thomas of Cwmgiedd, and other noble Lords have supported it.

The scheme here is being administered and funded by the UK Government. The Government’s position is therefore that the right level of involvement for Welsh Ministers is to be consulted by the Secretary of State before decisions are made, rather than requiring consent or concurrence, as Amendment 109B suggests. The Government believe it would not be proportionate for the UK Government to require the consent of Welsh Ministers, thereby in effect giving them a veto over those decisions. The Government must be able to act quickly following a disaster. I believe these amendments prioritise both speed and operability while respecting aspects of this policy that cover devolved areas.

For the avoidance of doubt, I add that, as far as the Ministry of Justice is concerned, we have perfectly good relations with the Counsel General for Wales, and we are in regular touch with Welsh Ministers on matters of mutual interest. For myself, I do not anticipate any difficulties arising from the sensible amendments proposed by the Government. Given that the Government have tabled these amendments, and having regard to the points I have just outlined, I hope the noble Baroness will not press her amendment. I shall be moving the amendments in my name in this regard.

Government Amendment 110A is a technical amendment, clarifying the grounds on which the Secretary of State may omit from reports material that, in the Secretary of State’s view, would prejudice an investigation, inquest or inquiry. This is an important amendment to ensure that materials relating to national security or those that might prejudice a subsequent investigation or criminal trial, for example, are protected. In the Government’s view, the amendments preserve the necessary balance between protecting that integrity and giving reassurance that the independent public advocate’s reports will not be unduly affected. It is a sensible precaution to take.

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[Baroness Sanderson of Welton (Con)]

My Lords, I thank the Government for the review. My own view is that while I would also like there to be some of the powers mentioned by the noble Lord, Lord Wills, it is a position that will evolve over time. It is really important to have that review and right to recognise where the Government have moved, and I thank them for it.

[Lord Bellamy (Con)]

I thank the noble Baroness for that intervention. That is the Government’s position on Amendments 102 and 105.

Amendment 103, which is in the same group, would impose a duty on the Secretary of State to have regard to the emotional and financial interests of victims when deciding whether to declare a major incident. The Government’s view is that the definition of harm in the Bill already includes emotional harm, as in Clause 28(3). It is unlikely that financial harm would occur in isolation, without the other kinds of harms mentioned in the Bill. Certainly, harm is a major factor when the Secretary of State considers whether to declare a major incident, so the Government’s position is that Amendment 103 is not necessary.

Amendment 106 touches on the close family member point raised by the noble Lord, Lord Wills. The question is how these days you define a close family member. The Government do not believe that the face of the Bill is the appropriate place to address that concern. In modern society, there is effectively no set structure for a family and the Government need flexibility to capture those who need support. In the Government’s view, the approach is best left to guidance and the discretion of the IPA concerned to provide that flexibility. Of course, the input of the noble Lord and others when we draft the guidance on what kind of indications should be given in it will be very valuable, rather than having it set out in advance in the technical structure of the Bill.

We then come to Amendments 107, 109 and 110, tabled by the noble Lord, Lord Ponsonby, and Amendments 106A and 110ZA, tabled by the noble Lord, Lord Wills. These require the appointment of a standing advocate within six months of Royal Assent, the Secretary of State to consider the views of victims and the provision of support so that the independent advocate will have all the support necessary.

As far as the period of six months to appoint is concerned, of course the Government share the noble Lord’s desire for the standing advocate to be in place as soon as possible once the Bill becomes law. But there has to be a fair and open competition for the office. As I hope the noble Lord will appreciate, the Government will want to carry out all relevant due diligence prior to the appointment. That process will take some time. In addition, I can confirm that the standing advocate will be subject to pre-appointment scrutiny by the Justice Select Committee to ensure that the most appropriate candidate is appointed to the post. For those reasons, the Government do not feel that any change to the process is required at this time. In particular, the six-month period would be unduly restricting considering the importance of the decision and the processes that have to be gone through, including parliamentary scrutiny. It would be far too tight.

As far as taking into account the views of victims as part of the appointment-making process is concerned, the Government certainly share this goal. When the functions of the standing advocate come to be undertaken, as outlined in Clause 29, the advocate will advise the Secretary of State on the interests of victims, whether additional advocates are needed and whether to terminate et cetera. The Government are quite satisfied that the views of victims will, in the normal course, be gathered and fully considered on this topic.

It does not seem right to the Government that a formal consultation with the victims would be correct before these steps are taken, because that would have the potential to unduly delay matters. The general scheme of this part of the Bill is that the ground is already covered. There is no reason to suppose that victims will not be fully included in the various decisions that come to be made. The Secretary of State has committed to publishing a policy statement and I will ensure that this covers the factors the Secretary of State will consider when making these decisions. This includes the participation of victims.

As far as secretarial and other support is concerned, the advocates will be supported by a permanent secretariat. The Ministry of Justice has already allocated funding for this. Clause 31 provides an effective system of support for the IPA by making provision for a secretariat and remuneration. Work is already under way to provide for this secretariat and provide for the appropriate separation between the day-to-day functions of the ministry and this independent operation.

That essentially leaves Amendment 119AA, on which it has been indicated that the House’s opinion may be tested. It requires that, “within six months” of a major incident, the Secretary of State must announce whether he intends to establish an inquiry or similar fact-finding review and provide the reasons for his decision to Parliament. If he decides to establish a non-statutory inquiry, the person appointed must be given data-compelling powers.

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Moved by

[Lord Bellamy]

103A: Clause 28, page 29, line 14, at end insert—
“(2A) Before declaring an incident that occurs in Wales to be a major incident, the Secretary of State must consult the Welsh Ministers.”Member's explanatory statement
This amendment would require the Secretary of State to consult the Welsh Ministers before declaring an incident that occurs in Wales to be a major incident.

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Moved by

[Lord Bellamy]

109A: Clause 30, page 30, line 23, at end insert—
“(1A) Before appointing an advocate in respect of a major incident that occurs in Wales, the Secretary of State must consult the Welsh Ministers.”Member's explanatory statement
This amendment would require the Secretary of State to consult the Welsh Ministers before appointing an advocate in respect of a major incident that occurs in Wales.

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Moved by

[Lord Bellamy]

110A: Clause 36, page 34, line 37, at end insert “, or
(g) prejudice—(i) the investigation or prosecution of an offence,(ii) an inquiry under the Inquiries Act 2005,(iii) an inquest under the Coroners and Justice Act 2009, or (iv) any other investigation or inquiry by a person exercising functions of a public nature.”Member's explanatory statement
This amendment would allow the Secretary of State to omit material from a report to be published under Clause 36 where the Secretary of State considers that publication of that material would prejudice certain investigations, inquiries or inquests.

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[Baroness Finlay of Llandaff (CB)]

My Lords, the amendment on the way that bodies are dealt with following a disaster is incredibly important. I remind the House of the “Marchioness” disaster back in 1989; there was an absolute outcry from the relatives about the way that some of those bodies were dealt with. The problem is that their grief is complicated when they hit different barriers and when they feel that the investigation and the post-mortem have been conducted inappropriately, particularly if they feel that things are being withheld from them.

To ensure that we provide support for these relatives, we need to make sure that there is a proper code of conduct and to improve the way that things are dealt with. I therefore think that this is an important probing amendment. I am glad that it is probing, because there are lots of things that could be altered and improved, but this work needs to be done and I hope the Minister will provide us with that assurance.

[Lord Bellamy (Con)]

My Lords, I thank the noble Lord, Lord Ponsonby, for Amendment 118, which extends legal aid to inquests. I completely understand the point that is being made, but the Government’s position is that the effect of the amendment is extremely broad and would give all interested persons the entitlement to free legal support and representation in any inquest, regardless of whether or not it follows a major incident, provided that at least one public authority was also an interested person. So, because of its width, the Government are unable to support the amendment.

In addition, the Government are already considering access to legal aid at inquests following major incidents. That is notably in response to Bishop James’s 2017 Hillsborough report. The MoJ is consulting on expanding free legal aid that is available for bereaved families at inquests following a major incident under this legislation and following terrorist attacks. In the Government’s view, the amendment goes beyond its stated purpose and the Government are already acting to deal with the issue of legal aid at inquests, so I respectfully urge the noble Lord not to press his amendment.

I turn to Amendment 119, a probing amendment. I am sure that everyone was moved by the description of the experience of Jenni Hicks, which was recounted by the noble Lord, Lord Wills. I was very sorry to hear about that experience. We very much appreciate the effect this must have had on Mrs Hicks and other families affected. In the Government’s view, Jenni Hicks and others are entirely right to have raised the issue in this Chamber. It is an issue that requires proper consideration. I know that Operation Resolve itself very much regrets the anguish and distress caused by the incident, and has offered its apologies. The officer in overall command has written to them setting out the actions taken to address their concerns, and last year I think the Policing Minister met with the families affected. The Home Office has been assured that appropriate procedures are now in place.

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[Lord Wills (Lab)]

Can I just clarify this? I think the Minister accepts how serious an incident this was; I think it is accepted that this sort of contempt for the victims and the bereaved is probably pretty widespread, and that something has to be done to make sure it never happens again. Will he confirm that whatever code of conduct emerges from the processes he describes will be given the force of statute?

[Lord Bellamy (Con)]

My Lords, I am not at this moment in a position to give that confirmation at the Dispatch Box. I will give further thought to it, and write to the noble Lord in due course as to whether the Government are in a position to give that assurance. I see the force of the point.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this has been a short but interesting debate. I acknowledge the points that the Minister made on my Amendment 118, about the existing consultation that the Government are doing and the broadness of the amendment. What was contained in the amendment was an aspiration, I suppose.

My noble friend spoke to Amendment 119 and gave the very moving example of Jenni Hicks. The noble Baroness, Lady Finlay, also reminded us of the “Marchioness” disaster in 1989. Here again, the Minister said that the independent pathology review will look at processes. We look forward to what may come out of that, and to the Minister’s answer to my noble friend’s question about whether it will have the force of statute. For now, I beg leave to withdraw Amendment 118.

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Moved by

[Lord Bellamy]

119A: After Clause 39, insert the following new Clause—
“Review of Part 2(1) The Secretary of State must, as soon as reasonably practicable after the end of the review period—(a) prepare and publish a report about the operation in the review period of this Part, and(b) lay the report before Parliament.(2) The “review period” is the period of 18 months beginning with the day on which the power in section 30(1) (appointment of advocate in respect of major incident) is first exercised.”Member’s explanatory statement
This new Clause would require the Secretary of State to review the operation of Part 2 in the period of 18 months following the first time an advocate is appointed under Clause 30.