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.