Victims and Prisoners Bill

Debate between Lord Hope of Craighead and Lord Ponsonby of Shulbrede

Committee stage
Tuesday 13th February 2024 Lords Chamber

[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their use with regard to similar appointments, particularly the appointment of a Victims’ Commissioner, under the now repealed Section 48 of the Domestic Violence, Crimes and Victims Act 2004, where that phrase was used.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.

Remote Observation and Recording (Courts and Tribunals) Regulations 2022

Debate between Lord Hope of Craighead and Lord Ponsonby of Shulbrede

Tuesday 19th July 2022 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, I am sure this instrument will be widely welcomed. As the noble and learned Lord has explained, this builds on experience, which it is good to do, in two beneficial ways: it is making a temporary arrangement permanent and it is spreading the technological discretion right across the whole system, which is a very good idea. One does not want gaps in an exercise of this kind.

I have a point to raise on the detail of Regulations 3 and 4, simply to try to understand how this system will work. As the noble and learned Lord has explained, this will be an exercise of a discretion. Regulation 3 gives two very sensible matters on which the court must be satisfied, particularly sub-paragraph (b) on technological arrangements and so on, before the discretion is exercised. I have no problems with that, because it is very obvious that this needs to be done. I imagine that, if the court is being invited to exercise a discretion, it would be up to the advocate asking for it to provide the material the court needs to be satisfied with the points set out in Regulation 3.

Regulation 4 is trickier. It is a list of very sensible points which we are told the court must take into account. This is another example of something that has been happening over the years; in the Judicial Review and Courts Bill in particular, there was a list of things that the court must take into account, which caused some concern—some said the word “must” was wrong because it opened the door to criticism of the court if it perhaps failed to take something into account that it should have done. That problem lurks under Regulation 4. How will one be satisfied that the court has taken all these points into account without the court going through the entire list and saying that it has looked at sub-paragraphs (a) to (f)? Have the Government any thoughts on how this will work in practice? Is it simply to be assumed when the court exercises discretion that it has done this, or should it be transparent and laid out in some kind of understandable practice that these points will all be addressed and that the public will be told why and how the court has been satisfied on them?

I raise this not to tease the noble and learned Lord; it is just that somebody, somewhere, might start complaining that, let us say, sub-paragraph (a) has not been taken into account because the magistrate or the judge did not say so. One needs to be a bit careful with these lists to be sure how the thing will actually work in practice. I simply throw that out for the noble and learned Lord to consider. Maybe a definitive answer cannot be given today, but somebody needs to think about it, and maybe guidance needs to be given to those who are exercising the discretion so that they do not fall into a trap.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support these provisions. They will replace and extend the temporary emergency provisions included in the Coronavirus Act 2020 which allow for certain proceedings to be observed remotely and recorded. We believe in the principle of open justice and think this goes a step towards that and should be welcomed for that reason. However, we are aware that sometimes legal proceedings are very sensitive and painful, and attending a court or tribunal can be a difficult experience for people. For that reason, decisions regarding which types of proceedings should be broadcast or available to different people to observe should not be taken lightly. I am very aware that different jurisdictions will have different considerations in that respect.

Just for the record, I sit as a magistrate in the family, youth and adult jurisdictions, and I sat all the way through the coronavirus pandemic. I started off in the family jurisdiction doing court hearings by BT MeetMe and we graduated to MS Teams. We were making extremely difficult decisions which we felt we had no alternative but to make because of the circumstances which we found ourselves working in as a court.

Of course I agree with the objectives behind this statutory instrument, but I wanted to make one substantive point on the level of technology in these courts. It is highly variable between jurisdictions. When one is dealing with litigants in person, it is not unusual for them to be trying to do things on their mobile phones. Sometimes they have poor signal and all sorts of handicaps if they are trying to take part in court proceedings remotely. In my experience, when a court is 100% remote —that is, everybody is remote—it can be made to work. However, it is more difficult when it is hybrid—when some parties are in the room and others are not. Whether it is fair to go ahead with a hearing is ultimately a matter for judicial discretion, but certainly in my experience, hybrid hearings in various jurisdictions can be detrimental to people who are not physically in the room, and the court needs to be aware of that when it is deciding whether to go ahead with a case. Nevertheless, having said that, we welcome this statutory instrument and we will be happy to support it when it is put to a vote.

Public Service Pensions and Judicial Offices Bill [HL]

Debate between Lord Hope of Craighead and Lord Ponsonby of Shulbrede

Report stage
Monday 29th November 2021 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I support this amendment. I raised the issue in my speech at Second Reading because I look back with gratitude to the guidance I received shortly before I retired as to the choices I had to make under the judicial pension schemes. I think my position was relatively simple compared with the position we have now, because there were two clearly expressed schemes, the guidance I was given was intelligible and I was happy to follow it. Of course, I was aware—as I am sure everybody would be under this new arrangement—that the choice I made was going to be irrevocable, and I had to be very careful to make the correct choice.

I cannot claim to have studied the impact of this Bill—and, indeed, all the amendments that have just come to the House today—but my impression is that the situation is a good deal more complicated than the one I had to deal with when I was on the point of retirement. There is a great deal of force in this amendment, and I am delighted that it has been brought back on Report so that we can have a full response from the Minister.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I pay tribute to the noble Baroness, Lady Janke, for tabling and introducing this amendment, to which I have added my name. I also thank the noble and learned Lord, Lord Hope, for giving it his support.

This is the issue which I think is really at the centre of deliberations on this Bill and planning for the introduction of the remedy: how information and advice are going to be provided to members. In Committee, the Minister agreed with the importance of this issue. He said:

“The Government recognise the importance of providing members with clear, accessible and accurate information.”—[Official Report, 11/10/21; col. 357GC.]


The Bill provides for remedial statements to be provided to all members, which in itself is welcome. Before the Bill reaches the House of Commons, I ask the Minister to consider carefully what practical, accessible and time-sensitive help there will be for a member who is struggling to understand the statement and the complex background which precedes it. As I asked in Committee, if a person has no idea what their statement means, how their pension has been affected and when they are likely to be required to make a decision, who do they call? Where do they go for practical advice?

The amendment also raises the question of compensation. The Bill provides for applications to be made for compensation, but what information will be circulated to ensure that impacted members are aware that they are eligible to apply?

These are the questions we have to get right to ensure that members can confidently navigate the remedy, which, not to remind the Minister of this too often, was due to a government error. I hope that the Minister can give a commitment to take this away and to look at what more could be done in the Bill to ensure that members are given first-class accessible support in navigating this complex issue.