Victims and Prisoners Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 13th February 2024 Lords Chamber

Moved by

[Lord Hope of Craighead]

127: Clause 31, page 31, line 20, leave out “on such grounds as the Secretary of State considers appropriate” and insert “if the advocate is unfit or unable to fulfil their functions”

[Lord Hope of Craighead (CB)]

My Lords, a good deal has been said about this amendment already in one way or another before I have got to my feet to introduce it.

Perhas I might begin with a bit of a preamble. I think I can take it as common ground across the Committee that the advocate appointed in respect of major incidents must be independent—that is, independent of the Secretary of State. The phrase “independent public advocate” has been used several times today from the Benches opposite, and I think the Minister used the expression “IPA”. Although he did not actually express the word “independent” as such, IPA means “independent public advocate”, so I take that as an indication that “independent” is agreed as a proper and necessary qualification of the advocate that we are talking about.

I think I am right in saying that it is a curious feature that “independent” does not actually appear in any of the clauses in this part, but it does appear in the contents. When the list of contents comes to Clause 33, it refers to “an independent public advocate”, so there is some basis in the text of the Bill for using that expression. That is why I think I can take it as secure common ground for what I am about to say that independence is a necessary qualification for the advocate.

My amendment seeks to address the phrase

“on such grounds as the Secretary of State considers appropriate”

in Clause 31(2) referring to the termination of the appointment of the advocate. As I read the clause, it seems to open the ability of the Secretary of State to terminate the appointment very widely indeed. With my amendment I am seeking to limit the grounds, in the interests of clarity, to situations where the advocate is either unfit or unable to fulfil the functions of the advocate.

I cannot claim much originality for the amendment because it derives from a report on the Bill that was published on 18 January this year by the Constitution Committee, of which I was then a member. The committee suggested that the independence of the advocate might be better protected if the words in my amendment were to be substituted. The committee refers by way of an example to their use with regard to similar appointments, particularly the appointment of a Victims’ Commissioner, under the now repealed Section 48 of the Domestic Violence, Crimes and Victims Act 2004, where that phrase was used. That particular provision has been repealed. I am not quite sure where it is now, although I am sure it exists somewhere, but the fact it was there gives some precedent for the phraseology that I am putting forward in my amendment.

To come back to the principle itself, the principle that the advocate must be independent if he or she is to perform the functions set out in Clauses 33 and 35 lies at the heart of what my amendment is all about. It is also true of Amendment 129 in the name of the noble Lord, Lord Ponsonby of Shulbrede. I refer the Committee to the phrase that he includes in that amendment, which is

“must be independent with respect to its functioning and decision-making processes, and discharge of its statutory duties”.

Although I did not add my name to the noble Lord’s amendment, I offer it my full support because it strikes at the very point that I am seeking to make and it has the great merit of introducing the word “independent” into this part of the Bill for the first time, which takes the matter a significant step forward.

The point is that the role of the advocates that the Bill is referring to in Part 2 is to represent the interests of the people who need them, not those of the Secretary of State. Clause 33(3), for example, states that an advocate appointed in respect of a major incident may provide such support to victims of the incident in relation to an investigation by a public authority

“as the advocate considers appropriate”.

Clause 33(4) provides that such support may include

“helping victims understand the actions of public authorities … communicating with public authorities”

on their behalf, and

“assisting victims to access documents or other information in relation to an investigation, inquest or inquiry”.

The point was made earlier that, if the advocate is to engage in encouraging and assisting victims to access documents, independence is rather important to be able to carry out that function to its proper degree.

Then there is the reporting function in Clause 35. Reference is made here to the advocate’s opinions as to the treatment of victims in the course of an investigation, inquest or inquiry, and

“such matters as the advocate considers relevant”

to the major incident. I submit it is essential, if the advocate is to fulfil the functions set out in these clauses, that he or she should be free to exercise his or her own judgment without looking over his or her shoulder to see whether the Secretary of State likes or approves of what they are doing. There is a risk of a conflict of interest if the appointment is terminable on whatever grounds the Secretary of State considers appropriate.

I listened with some care to what the noble Earl said at the end of the last group for a hint as to what the objection to my amendment might be. He suggested that the Secretary of State may wish to limit the number of advocates or, for some other reason, move the appointments around, and so on. There is nothing sinister in this, it is simply a matter of proper organisation of the resources. I take that point, but it seems to me that the phrase in the clause is so wide that it opens the door to the accusation that it is actually at risk of undermining the independence of the advocate. It is an invitation, or it leaves it open to the Secretary of State, to terminate the appointment simply because the Secretary of State is dissatisfied or objects in some way to what the advocate is doing. That is the very last thing one would want if the advocate is to be truly independent.

Of course, I do not suggest that the formula I have put forward is the last word on this matter. It may be that the phraseology to which I draw attention could be limited in some way to remove the objection to which my amendment is primarily addressed. But I think I have said enough to enable the Minister to understand the point I am making. I hope he will give careful consideration to amending Clause 31(2), if not in the way I have suggested, at least in some other way to limit the breadth of the phraseology. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I shall speak first to the two amendments in my name. Amendment 29 states:

“During their appointment, an advocate may sit within the Ministry of Justice for administrative purposes, but must be independent with respect to its functioning and decision-making processes, and discharge of its statutory duties”.


The purpose of this probing amendment is to seek clarification of the function and operational independence of the advocate.

Amendment 132 would remove the power of the Secretary of State to issue guidance to advocates appointed in respect of major incidents and give this power instead to the standing advocate. It states:

“The standing advocate may issue guidance as to the matters to which other advocates appointed in respect of a major incident must have regard to in exercising their functions”.


The noble and learned Lord, Lord Hope, spoke to his Amendment 127. In a sense, there is an overlapping theme between this short group and the previous one and, indeed, other matters that have been discussed in Committee. That overall theme is bolstering the independence of the public advocate. I take the noble and learned Lord’s point regarding Amendment 129—I must admit I had not really appreciated it—that this is the first time “independent” appears in this part of the Bill. That is another example of bolstering the independence of the public advocate and the role itself.

In a previous group, the noble Lord, Lord Marks, spoke about putting the financial support for the IPA in the Bill. That too is a way of bolstering support, giving the advocate independence from the Secretary of State, so that the IPA is not constantly looking over his shoulder in terms of what the Secretary of State’s views might be. I too take the Minister’s point, made at the end of the previous group, that there may be practical reasons why the Secretary of State wants to move public advocates around. As the noble and learned Lord, Lord Hope, said, there is nothing sinister about that. Nevertheless, this suite of amendments is all about bolstering the independence of the IPA and trying to integrate the victims’ views into the process as far as is practicable. As was said when we debated the importance of review in the previous group, the way in which this new position is managed and the roles taken on may evolve over time.

I am hoping to hear from the Minister that the Government are sympathetic to the overall thrust of the amendments on independence of operation and making sure that victims’ views are represented at every opportunity as this role evolves.

--- Later in debate ---

Therefore, while I recognise the intent of the noble Lord’s amendment, the Government believe that it is necessary for the Secretary of State to retain the power to issue guidance to the advocates. There is no doubt that the views and expertise of the standing advocate may be useful in informing this group going forward. I hope this satisfies the noble Lord, Lord Marks, that guidance will never impact on the independence of the actions of the independent public advocate. I respectfully ask the noble and learned Lord, Lord Hope of Craighead, to withdraw his amendment.

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to all noble Lords who have spoken in this short debate. I am particularly grateful to the Minister for stressing several times in his reply the Government’s commitment to the independence of the advocate; that is extremely important.

The problem is that that is not expressed clearly enough on the face of the Bill. It is curious, as I pointed out at the beginning, that it appears in the contents but not the text of any of the clauses. That is curious and suggests that something should be done in the wording to clarify the matter further to avoid the impression, which Clause 31(2)(a) gives, that the Secretary of State can dismiss the advocate for any reason.

It is possible to develop my amendment a little further—I am speaking off the cuff—to say that the Secretary of State may terminate the appointment for “administrative reasons” or “having regard to the views of victims” or “because the advocate is unfit”, and so on. The point is that one could spell out in this clause a little more clearly what ability the Secretary of State has to terminate the function without undermining the independence of the advocate.

To some extent, one is talking about the confidence the advocate has in exercising what could be quite demanding functions. In the interests of victims, they could be pressing the Secretary of State to do things that may be awkward, embarrassing, expensive, and so forth. It is very important to get this clarified in a way that achieves the commitment the Minister has very helpfully been stressing in his reply to me. I hope we can come back to this. If there is a possibility of discussing this with the Minister and the Bill team, I would very much welcome that. I hope we can pursue it further that way.

[Lord Roborough (Con)]

I reassure the noble and learned Lord that we would like to discuss this further.

[Lord Hope of Craighead (CB)]

I am most grateful to the Minister for that. For the time being, I will withdraw the amendment and we can progress the matter further in discussion.

Amendment 127 withdrawn.

Victims and Prisoners Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I shall speak to Amendments 159 and 160 in this group, which the noble Lord, Lord Blunkett, has asked me to introduce on his behalf, and in support of Amendment 161, which was spoken to so ably by the noble Lord, Lord Moylan, a moment ago. I join others in expressing great regret that the noble Lord, Lord Blunkett, cannot be here to speak to his own amendments. It was very good of him to suggest that I might take his place in the case of these two amendment, but I am conscious of the fact that I cannot match the contribution that he would have made had he been here. Along with others, I have admired the way in which, with commendable candour, as has been said, he has faced up to the enormous and wholly unforeseen problems that the IPP regime has created. He has done his very best to bring his profound understanding of our prison and parole systems to bear in the search for solutions to the problems, and the amendments in his name are the product of that endeavour. His contribution in person will be very much missed.

I come from a quite different background. When I served for seven years as Lord Justice General in Scotland, I visited all the prisons but one in that country and attended several meetings of its Parole Board. I did this because under the regime that was then in force one of my responsibilities was to advise the Secretary of State for Scotland when it would be in the interests of justice for prisoners who were serving a mandatory or discretionary life sentence to be referred to the Parole Board with a view to them being released on licence. In each of these cases, I was presented with files, often very substantial, that recorded the prisoner’s progress through various stages in the prison system. I felt that I had to visit the prisons, each of which had its own characteristics, in order to understand what I was dealing with. I also wanted to meet and speak to some of the prisoners who were there, whose names were never released to me, and on one occasion joined them sitting at a table, in their case almost for the first time in many years, to eat lunch with them using a knife and fork.

I admired the way the Parole Board went about its work, equipped, of course, with very substantial files. It was borne in on me how much attention was paid to what was in those files, how crucial it was that the files should be accurate, fair and complete and how much effort had to be put in by those who were reading the files and relying on them in order to understand the picture that they presented. I join the noble and learned Lord the Minister in expressing appreciation of the work done by the Parole Board in these cases, particularly the IPP cases, where the burden on it is so heavy.

We did not have IPP prisoners in Scotland when I was there and never have had, so I can only guess at the scale of the problems that all those who have to administer that system must face. However, there was, in my time, a very well-organised and properly funded training for freedom programme, which all life-sentence prisoners who had reached the appropriate stage would undergo.

Care was taken to see that those prisoners understood the plan and how their sentence was to be progressed; that played its own part in the eventual success of the plan that they were working to. Of course, I am speaking of how things were in Scotland 30 years ago. The pressures on the prison system, both there and here, are very much greater now, while the IPP system is in a class of its own. However, it gives a hint of background to the way the mind of the noble Lord, Lord Blunkett, was going when he proposed these amendments.

One further word of background: I, along with others, look back to the powerful and sustained contributions made on this problem from these Benches over many years by the noble and learned Lords, Lord Lloyd of Berwick and Lord Brown of Eaton-under-Heywood. I think it was the noble and learned Lord, Lord Lloyd, who was very much involved in the measures that eventually led to the changes brought about by LASPO. He went right back to the very beginning. From the very start, when I first came into the House, he was making strong speeches in favour of the need to change the system. We can recall much more recently the contributions by the noble and learned Lord, Lord Brown. I felt I owed it to them to contribute tonight because they are no longer able to be with us.

Amendment 159 seeks to place the Government’s existing action plan on a statutory basis and strengthen its effect by giving it a purpose that is set out in the statute. That purpose will be to ensure the effective rehabilitation and progression of persons serving these sentences. The Minister was kind enough to present to us, in his reply on the previous group, the overall framework that has now been developed in order, as I understand it, to improve on the existing plan. I hope that he will forgive me for saying what I am going to say—it is really a criticism of the plan that I think he is departing from—but it may indicate the way that the mind of the noble Lord, Lord Blunkett, is going as to how the existing plan ought to be improved. It may also assist in the development of the plan that is currently being worked on.

Amendment 159 sets out the position in a good deal of detail but the structure of the amendment can be summarised briefly in just a few words. First, in subsection (3) of the proposed new clause, it sets out in five propositions what the revised action plan must seek to do. In subsection (4), it sets out what the plan must include if it is to deliver that purpose. It then goes on to provide how that purpose is to be delivered. The Lord Chancellor must allocate sufficient resources and appoint a board to oversee the delivery of the plan, then the board must provide the Lord Chancellor with a report at the end of each financial year, which will be laid before Parliament.

As the noble Lord, Lord Blunkett, sees it, the present plan, although an improvement on the previous one, suffers from a basic and fundamental weakness: it has no stated purpose. It does not state what the outcomes for those serving these sentences are to be. They have not been given a forward plan that would allow for some hope and enable the sentence to be progressed, nor is it said how the process is to be monitored or evaluated. Although the prisoner’s case is to be subject to review every six months, these basic weaknesses remain; that enhances the sense of hopelessness, as has been mentioned in the earlier stages of these debates.

According to the figures I have been given—I will deal with them briefly—the quarterly number of releases has remained static at between 50 and 59 over the past three years. Re-releases have been declining while the number of IPP recalls has been increasing. The lack of any real progress shows that something must be done, although I accept the point that has been made: the more the number of IPP prisoners remaining in custody decreases, the greater the problems that one must face to consider them suitable for release. I absolutely understand that and am sure that the noble Lord, Lord Blunkett, appreciates it very well.

Of course, there are no easy answers and regard must always be paid to the protection of the public from serious harm, but we owe it to these unfortunate people to do more. There is an urgent need to review their needs and to provide each individual with a forward plan as to how their sentence is to be progressed, and that plan should be updated regularly. A whole range of issues needs to be covered, as referred to in subsections (3)(b) and (4)(b) of the proposed new clause. That really is the key. Their physical and mental health needs to be attended to and they need to be provided with daily and weekly activities including exercise, work and education, designed to develop their suitability for release. Their skills for everyday living in the community need to be developed too—such simple things as eating with a knife and fork at a table. So much more could be done with a stated purpose and a structured plan. That is what this amendment seeks to achieve.

Amendment 160 provides for the setting up of an independent scrutiny panel. The function of the panel would be to ensure that Ministers and officials give priority attention to the IPP prisoners and scrutinise each prisoner’s progress through his or her IPP action plan.

Finally, I very much welcome and strongly support Amendment 161 from the noble Lord, Lord Moylan. It deals head on with the unfairness which is such a stain on the justice system. Although those serving life sentences have for the most part been convicted of a more serious crime, it is the IPP prisoners—often initially with a very short period to serve as a tariff—who have to prove their lack of risk to be released. In their case, the burden of proof was reversed, while life sentence prisoners can expect to be released when their tariff has been served, unless the Secretary of State can show that they still present a risk to the public. We have seen what this has led to. It is surely now time for it to be changed, as the noble Lord, Lord Moylan, has been urging. That was what the noble and learned Lord Brown of Eaton-under-Heywood argued for so vigorously whenever he could. He would certainly have done that again this evening, had he been here. I hope that the noble and learned Lord the Minister can see his way to accepting this amendment.

[Baroness Burt of Solihull (LD)]

My Lords, I support every single amendment in this group, particularly the “two strikes” part of the amendment from the noble Lord, Lord Blunkett, so ably introduced by the noble Baroness, Lady Chakrabarti. I am sure we have all had letters from individuals who are languishing in prison under the “two strikes” rule. For the sake of brevity, I will just talk about Amendments 165 and 166 in my name.

Amendment 165 comes from a concern at the lack of fulfilment of aftercare obligations for prisoners who have been transferred to a secure hospital and subsequently returned to prison. It amends Section 117 in Part 8 of the Mental Health Act. We are talking about approximately 400 people who will, arguably, need additional help to cope with their return to prison life and subsequent reintegration into the community. It will help clarify and highlight the existing Section 117 entitlement to aftercare for prisoners who have been transferred from secure hospital to prison and remain either in prison or out on licence in the community. These individuals can be defined as those who are entitled to Section 117 aftercare. Sometimes this does not happen and individuals either in prison or out in the community do not receive the aftercare they need or are entitled to. Clearly, this entitlement is and should be reflected in their release plan and will increase their chances of a successful transition into the community, reducing the risk of recall.

Victims and Prisoners Bill

Lord Hope of Craighead Excerpts

Report stage
Tuesday 30th April 2024 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare my interest as someone who lives in Wales. I am most grateful to my noble and learned friend Lord Thomas of Cwmgiedd for the way he introduced this amendment, which, as I understand it, actually reflects the proper constitutional provision. This is, by common ground, a devolved area. The Senedd has competence to legislate for the creation and appointment of an independent advocate for victims of major incidents in Wales. The UK and Welsh Governments agree that is the case, so the Senedd could make provision for Wales. I note the Welsh Government also believe that their Ministers would be able to appoint a non-statutory advocate following an incident in Wales under general executive powers.

As it stands, therefore, we are legislating for a situation in which rival advocates could possibly be appointed at the same time. This may not seem a likely eventuality, but it would be easily prevented by this amendment. The only element of this part of the Bill in which the Senedd could not make provision with regard to Wales is that an advocate for victims appointed under the Bill would automatically secure interested person status in a relevant inquest under Clause 34, but an advocate for victims appointed by Welsh Ministers could still be given interested person status by a senior coroner if they consider them to have sufficient interest.

Clearly, it seems sensible for this legislation to cover both England and Wales, and so for the Welsh Government to be part of the scheme, but it is similarly sensible that the legislation reflects devolution, and enables Welsh Ministers to ensure that the advocate has knowledge in Wales and the necessary ability to do everything in Welsh. I remind the House that there is equal status between the two languages—in Wales, both English and Welsh are spoken—and the systems in Wales sometimes operate quite differently from systems in England.

The Secretary of State acting unilaterally in an area of devolved competence would not seem appropriate, and we need to avoid friction to strengthen the union. This is an opinion only and I am not speaking on behalf of Welsh Government at all, but the Counsel General expressed in the Senedd on 13 December that

“there needs to be specific account in terms of the role of Welsh Government and what would happen within Welsh situations were there to be a tragic event”.

I therefore hope that the amendment will be accepted and will require the consent of Welsh Ministers to be agreed, not simply a consultation. The problem with the consultation is that there is a real risk it could be tokenistic.

[Lord Hope of Craighead (CB)]

My Lords, Clause 28 does not apply to Scotland, which can have its own legislation to deal with this matter, but I am very much in favour of the amendment. I have gone over the ground of seeking consent many times in different situations, but in this one, where we are dealing with the choice of advocates, the choice matters very much indeed. I would have thought that there is great sense in the points made by the noble and learned Lord, Lord Thomas, that this is an area where the consent of Welsh Ministers is not only appropriate but required.

[Lord Wigley (PC)]

My Lords, I have not taken part in earlier discussions on this Bill for reasons outside my control, but it would be strange for me not to get on my feet to reinforce the points that have been so well made by noble Lords. This is an important matter as far as Wales is concerned. There needs to be clarity and co-operation, and that has to be on a proper basis. I suggest that these amendments would help facilitate that.