Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 31st January 2024 Lords Chamber

[Lord Meston (CB)]

My Lords, I also support Amendment 18, which would require the code to provide for interpreting and translation services and, more importantly, for the standards to be expected of the professionals supplying those services.

Good and reliable interpreting and translation is an increasingly necessary part of the justice system in all areas. It is also an expensive part of the system, for which value for money should be important. Most interpreters are good and efficient, but others, regrettably, are less so. A long time ago when in practice, I recall a particularly impatient interpreter helping me and my client who pulled me aside and urged me to get my client to plead guilty, which I politely declined to do. That completely undermined the confidence that either of us could have in that particular interpreter.

At present, as I understand it, court interpreting services are obtained through agencies used by the Courts & Tribunals Service. If this amendment or something like it is enacted, I would assume that the same agencies would be used. In any event, I would hope that care is taken to stipulate, ensure and review the efficiency of the agencies used and the quality of the work they do.

Finally, I would also hope and expect that this amendment, if approved, would be understood to be wide enough to help those requiring sign language and lip-reading assistance. If not, will those requirements be expressly covered by the code?

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

My Lords, I also apologise for being unable to be present for Second Reading. I will speak very briefly in view of the comprehensive opening speech on this group of amendments by the noble Baroness, Lady Coussins, and the speeches from all other noble Lords. I pay tribute to the noble Baroness, Lady Coussins, for a sustained campaign on the need for professional interpreting and translation services. We have travelled this road before in other contexts, but I hope that the Government will pay the closest attention to her arguments and her justification for these amendments.

The first point is an obvious and a human one. Just as for witnesses, complainants and defendants in formal criminal justice proceedings, so for victims in understanding the code and in securing, receiving and understanding services, the experience of being a victim is extremely traumatic, emotional, often unique in the victims’ experience, and it is very difficult for the victim to comprehend what is happening to them—in short, it is difficult to understand in a human way. These problems are all the more acute for victims whose first language is not English.

However, the main point that the noble Baroness, Lady Coussins, made, and the point of these amendments and the conclusion, while in the context of that initial human point, is thoroughly supported by her arguments. Complete understanding of the language is vital. What is needed, therefore, is a service that as closely as possible diminishes and removes language barriers, so what is written and stated in English is understandable to the victim, and what is written and stated in the victim’s native language is understandable in English. That can be reliably achieved only if the translation is full, accurate and direct.

The stress the noble Baroness places on the distinction between “interpreting” and “interpretation” is of the greatest importance. It is crucial that, just as in courts, when evidence, submissions or judgments are delivered, in the context of victims’ needs the translator’s or interpreter’s view must not be interpolated between the service provider and the victim or between the code and the victim. Translation and interpretation should convey exactly and straightforwardly what is said or written to and by the victim.

There is a risk, which is well known in courts and other contexts, that when non-professional, unqualified or inexperienced translating or interpreting services are involved, the directness and accuracy are compromised, not just because mistakes of meaning may be made but because the translator’s or interpreter’s own ideas and understanding colour, embroider or develop the meaning of what is written or of what is being said. This process may, and often does, reflect the best of intentions on the part of the interpreter—the intentions of those who are genuinely trying to help.

We should not underestimate the temptation for people, including professional service providers, looking for understanding or expression in order to seek or accept help when that is well-meaning but unprofessional, and the risk that those good intentions may involve. That risk, whether well-intentioned, or, as in the example of the noble Baroness, Lady Newlove, of the interpreter in the police station who was effectively on the other side, always needs to be minimised, and these amendments offer a good chance of achieving that minimisation.

--- Later in debate ---

[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.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I will make a very brief point, following on from that made by my noble and learned friend Lord Thomas of Cwmgiedd.

There is a group of victims who are particularly vulnerable: those with impairments in mental capacity, who may have difficulty in expressing and explaining what has happened to them and are vulnerable to misinterpretation of anything they say—they are in particular need of advocates who understand their needs.

Many years ago, I was asked by Gwent Police to assist them in a prosecution in relation to people with profound mental incapacity who had been abused and raped. It was very difficult to pull the evidence together, and it was a very steep learning curve to see how difficult it is to let the veracity of what they were trying to tell one be heard and come through. I hope the Government will recognise that there is a group in the population who are particularly vulnerable to exploitation and to sexual abuse by the very nature of having learning difficulties and impairments, and of course that also includes young people with autism—we know how vulnerable they are to influence, and to coercion into a situation that they believe.

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

My Lords, in this group, I will speak only to Amendments 78 and 79, in the names of the noble Baronesses, Lady Thornton and Lady Hamwee. They call for free independent legal advocates and free independent legal advice for victims of rape, and I support the principle behind them. I take the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, that they do not necessarily talk about advocacy in court, although Amendment 78 does talk about free independent legal advocates.

The noble Baroness, Lady Thornton, said that the amendments will not affect our adversarial system; nor will they affect it adversely. However, I hope that they will, if adopted, have an effect by ensuring that the interests and voices of victims are considered and heard throughout the criminal justice system, and—certainly for the purposes of these amendments—more comprehensively in rape cases, and that will be wholly beneficial.

These amendments lie at the heart of what this Bill is all about, which is to bring about a transformation in the way we look after the victims of crime. We have moved, but far too slowly. When I practised in the criminal courts a long time ago now—and this is not intended to be an exercise in reminiscence—as both prosecutor and defender, we were almost encouraged to take pride in the structure of criminal cases as a contest between the state—the Crown—represented by the prosecution’s lawyers, and the defendant, represented by independent barristers and solicitors, generally paid for by the state. The adversarial system was all. The victim, usually called the complainant—or in financial cases, the loser—was universally treated as no more than a witness, liable to be harshly cross-examined almost without restriction, and deserving of no extra consideration on account of the ordeal suffered as a result of the crime.

--- Later in debate ---

[Earl Howe]

I have heard the strength of feeling on this, and I will be more than happy to take the issues raised back to my colleagues and officials in the department. I will be happy to write to noble Lords about this, and I would also be happy to arrange for my noble friend and interested Peers to meet me, or my noble and learned friend Lord Bellamy, to discuss the issues that have arisen.

I turn to Amendment 103, tabled by the noble Lord, Lord Hampton. We recognise the importance of ensuring that the distinct needs and experiences of children are reflected in the code of practice that the noble Lord mentions, and that is why we have included specific guidance in the draft code for handling victim information requests for children. I agree with the noble Lord that it is essential to make sure that the final code reflects best practice in this area, and that is why my noble and learned friend Lord Bellamy has instructed officials to review the list of statutory consultees for this code of practice.

I turn next to the amendments tabled by the noble Baroness, Lady Thornton, which seek to require the development of proposals for schemes to give victims of rape access to free independent legal advice and representation. I agree that it is extremely important that victims are confident in their rights and are aware of those rights, particularly when preparing for trial and when requests for their personal information are made; I found much that I could agree with much of the contribution from the noble Lord, Lord Marks.

We wanted to ensure that our understanding of this issue is as comprehensive as possible and, to that end, the Government asked the Law Commission to consider the merits of independent legal advice for victims as part of its comprehensive review into the use of evidence in sexual offence prosecutions. The consultation closed in September last year, and we expect the final report to be delivered in the autumn of this year. To avoid making changes at this stage that could pre-empt the outcome of the Law Commission’s review, and to ensure that we are considering all the evidence as a whole, we will consider the Law Commission’s report and respond in due course. There is no reason why the tenor of this debate should not form part of the Government’s deliberations once we have the Law Commission’s report in our hands.

Perhaps I could add something around the therapeutic support issue. Victims of rape should not be told that they cannot access the therapeutic support that they need to heal from the trauma that they have endured. The Crown Prosecution Service pre-trial therapy guidance is absolutely clear that therapy should not be delayed for any reason connected with a criminal investigation or prosecution. The guidance sets out clearly that it is for the victim to make decisions about therapy with their therapist and that criminal justice practitioners should play no role in the decision-making process.

In the rape review action plan, we recognised that victims of rape frequently experience intrusive requests for personal information. To improve that situation, we have taken a number of actions, including legislating through the Bill to introduce a statutory code for the police to ensure that requests for victim information are made only when necessary, proportionate and relevant to a reasonable line of inquiry. The police must also provide full information to the victim on what information has been requested, why it has been requested and how it will be used. A draft code of practice has been published. When it is finalised, it will be statutory, and police will have a duty to have regard to the code when making requests. I hope that that is helpful.

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

My Lords, I am grateful to the noble Earl for giving way. I ask whether the code will, in fact, introduce what the noble Baroness, Lady Newlove, called a privilege against requests made for records of therapeutic interventions. That is one of the problems: therapy is deterred by the fear of a future request for notes to be disclosed. That is a very serious issue.

[Earl Howe (Con)]

I recognise the seriousness of the issue. I have no advice in my brief on that, but I will be happy to write to the noble Lord on that point.

--- Later in debate ---

At the risk of boring everybody completely, I will speak briefly in support of Amendment 111, in that it prohibits unsupervised direct contact in specific circumstances. My only reservation relates to situations in which there has been or may have been some police investigation but bail conditions have not yet been set. It is sometimes hard to ascertain whether in fact a police investigation is still ongoing—and, believe it or not, the parties concerned do not themselves know. Although I support this amendment, I add that it has to be recognised that suitably supervised contact is not always possible to arrange. An appropriate friend or relative may not be identifiable or available to provide reliable supervision. Professionally supervised contact at a centre may involve delay or expense, and be unaffordable. Delays in the criminal process may also mean that the restrictions envisaged by this amendment could continue for a considerable time. However, despite those difficulties, with which practitioners are all too familiar, I consider that to be a worthwhile amendment.

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

My Lords, as we have heard, Amendment 82, the first in this group, is designed to prevent a parental alienation argument, usually relating to contact but sometimes to residence as well, being used by perpetrators of domestic violence or child sexual abuse to harass their victims through repeated applications to the family court.

The Government need no reminding of the background, because it was the Government who commissioned the panel on the risk of harm in 2020, to which my noble friend Lady Brinton referred. That was responsible for a significant change of thinking in this area. The assumption that ensuring that children should always continue contact with both parents unless the circumstances were exceptional had dominated courts’ thinking for many years and was given some statutory force, though not in absolute terms, by Section 1(2A) of the Children Act 1989. However, the panel found that there was a pervasive culture of disbelieving victims of domestic abuse, compounded by a pattern of abusive ex-partners abusing the courts’ processes by applications to the court, and effectively of the courts ordering contact, in particular in favour of abusive parents, against the wishes of the victim—the other parent.

Allegations of parental alienation—I accept that the term became something of a term of art, perhaps unjustifiably—are frequently made by abusive parents, and they still are, generally seeking contact but also residence. My noble friend Lady Brinton has given a detailed account of why the parental alienation issue has represented a significant failure of the family courts in recent years. The process involves the abusive parent claiming that the resident parent is opposing contact in an effort to alienate the child from the non-resident parent; essentially, it is the bad-mouthing allegation taken to extremes, in a way that is wholly unjustifiable. I will not repeat the persuasive account of the issue that my noble friend Lady Brinton has given. However, in these cases with which we are concerned, the victim’s allegations are generally true. We need to remember that the children may be put at risk by unwanted contact with their parent’s abuser.

Summarising the position in 2020, the Minister, the noble and learned Lord, Lord Bellamy, wrote in the ministerial foreword to the panel’s report:

“The Panel found that too often, adversarial court proceedings retraumatised victims. Allegations of domestic abuse were too readily disbelieved or dismissed, alongside poor risk assessments and siloed working. The report also identified a view amongst many respondents that courts often placed an undue emphasis on ensuring children had contact with both parents”.


In its recommendations, the panel recommended a series of principles, which included:

“The court and those working within the system will be alert to those seeking to use … processes in an abusive or controlling way. Such behaviour will be actively identified and stopped”.


However, the issue persists.

Amendment 82 is directed at preventing victims being treated as responsible for parental alienation if they oppose applications made by perpetrators of violence against them to the courts. The amendment, as framed, would prevent a victim of domestic violence being considered as responsible for parental alienation.

The Committee may accept that the amendment as it stands is too absolute. As the noble Baroness, Lady Fox of Buckley, pointed out, supported by the noble Lord, Lord Meston, the amendment as drawn purports to prevent a court reaching a conclusion of fact, which it ought to be entitled to reach in a case where the evidence supports that finding. Nevertheless, I suggest that, in the view of the evidence that the panel and many other experts have considered, the direction of travel of the amendment is right. The interventions of my noble friend Lady Brinton and the noble Baroness, Lady Chakrabarti, in response to the speech of the noble Baroness, Lady Fox of Buckley, made it clear what the point and intention of this amendment are. If it needs redrafting, that could be dealt with between now and Report. The aim is to prevent perpetrators of domestic abuse continuing that abuse by transferring it to the court, abusing the court process with unwarranted accusations against their victims of turning the abusive parent against the victim.

Amendment 111 would reflect in the Bill a principle implicit in the findings of the panel: that in domestic abuse cases the court should disapply the Section 1(2A) presumption that parental involvement of both parents is generally in the interests of a child or furthers a child’s welfare. Furthermore, by the amendment, unsupervised contact should not be ordered in a case where the parent concerned is a defendant or a potential defendant in a case of domestic abuse, child abuse or a sexual offence. The level of supervision specified involves the presence of an approved third party at all times during contact, to ensure the physical safety and emotional well-being of the child, but the court would be left to determine the precise nature and location of the supervised contact permitted. I suggest that that represents a relatively minimal level of safeguarding. I accept entirely the caution expressed by the noble Lord, Lord Meston, as to the difficulty sometimes of arranging supervised contact. However, that difficulty needs to be weighed against the danger of exposing children to unnecessary risk, and I suggest that the amendment provides a reasonable balance.

Amendment 110 would ensure that anyone carrying out psychological assessment of a person as a victim for family proceedings would be suitably qualified by being regulated by the Health and Care Professions Council. I accept again the point that the noble Lord, Lord Meston, made, that often the perpetrator needs psychological assessment as well. Whether the qualification for making psychological assessments should be as is suggested—that is, regulation by the Health and Care Professions Council—is a matter for discussion. However, suitable qualification is always important.

Amendment 117 would protect victims from orders to disclose medical records to proven or alleged perpetrators of domestic abuse against them, unless the circumstances were exceptional. We have been through much of the detail of that and the principles behind it in relation to group one, and I suggest that the amendment is important in just the same way as the amendment in group one.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Baroness Newlove (Con)]

My Lords, I support the probing amendment from the noble Baroness, Lady Brinton, which is an opportunity for the Government to look at court order compensation.

The compensation for victims when they leave a court is not the amount they receive and it takes many years. I will not repeat what the noble Baroness has said—it is on my sheet as well—but, for the victims I meet, compensation causes further problems and trauma. It gets worse if victims apply for criminal injuries compensation, because the court order compensation is deducted from any award that is made. This is fine where the court order compensation is paid, but, if not, the victim is left worse off as a result. I agree that we should look at how the Netherlands pays up front.

I know that there is no money tree but, to make it smooth for victims, instead of being for the offender to hide once again and use as a tool in financial cases for coercive control, I hope the Government will review this court order compensation scheme. I know from speaking to judges that they know that, when they award this, the offender will pay it in dribs and drabs. Now is the time for a good review of this.

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

My Lords, I will briefly address both amendments.

On the amendment from the noble and learned Lord, Lord Garnier, supported by the noble Lord, Lord Sandhurst, I completely agree with the need for a review and the points made by the noble and learned Lord. His speech dealt largely with corruption, but the amendment deals with bribery and money laundering, which gives rise to significant hardship in countries where it can bite. The weakness of our system is that there is no real provision for proper compensation or properly assessing compensation—even in domestic cases, let alone international ones—where there is a conviction but the degree of loss has not been properly investigated. Noble Lords will no doubt have a great deal of sympathy with the noble and learned Lord, who was allowed to address the judge out of consideration and kindness but had his submissions rejected because there was no legal standing.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

I have a very short amendment—wholly unrelated to what has just been put forward—and I thank those in the Whips’ Office for suggesting that it remain in this group, and not, as I had proposed, move to a later group, which would be reached much later this evening. It does not really matter which group it is in, because it does not really affect anything else. It is a simple, short point in relation to the co-operation between Governments within the union and, therefore, has to do with devolution.

Clause 33 sets out the functions of the advocate who is to be appointed in respect of a major incident. None of the functions in this clause is a reserved matter, so under the Government of Wales Act, the Senedd has the powers to appoint. Therefore, in any particular incident, the Senedd could make provision so that it could appoint its own advocates. I do not believe a different view is taken by the Government in London.

It may also be the case that Welsh Ministers can appoint a non-statutory inquiry following a major incident in Wales, but that is not the kind of point to go into at this hour. The only power that the Senedd could not make provision for is for an advocate appointed under the Act to automatically secure interested person status in a statutory inquiry—those powers are reserved as they are part of the justice powers. Of course, a public advocate appointed by the Welsh Ministers would be free to apply for interested person status, and would probably get it—so I do not think it makes any practical difference. As I understand it, this point has caused the Senedd’s consent to the legislative consent memorandum to be qualified and reserved until this matter is resolved.

There are four short points to make. First, it seems sensible that the Welsh Government are involved as part of the scheme if there is a major incident in Wales. That would avoid any possibility of duplication. Secondly, it is important that the Welsh Government have a say in the person appointed. The advocate must have knowledge of Wales as well as the necessary ability to do everything in Welsh as well as English, since in Wales, English and Welsh have equal status.

Thirdly, significantly, it would be a further step in underpinning by statute co-operation between the Governments as part of the normal exercise of shared functions within a union. Fourthly, the Minister provided the greatest possible help in achieving something similar in relation to mission statements in the Levelling-up and Regeneration Act, as provided for now in Section 2 of that Act. This seems to be yet another step that can be taken to put in place a strong statutory framework for co-operation to ensure that there is no duplication and there is good working co-operation.

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

My Lords, I support Amendments 119A to 119C in the name of the noble Lord, Lord Wills.

I suggest that the usual basis for avoiding retrospective legislation does not apply in this case. Generally speaking, we take the view that it is wrong for new legislation to have retrospective effect. That is because, if an individual behaves in accordance with the law as it is at a given time, it is regarded as wrong for the law subsequently to be changed—I believe this is a correct analysis—in such a way as to change the legal framework in which that person legitimately operated at the time when they acted as they did. However, that principle cannot be relevant in the treatment of victims of major incidents and the provision of advocacy services to such victims. It is not as if there is anything in the Bill that could affect the behaviour of victims or indeed the behaviour of others in respect of major incidents, regardless of whether or not those others may have been culpable in some way for the occurrence of the incident.

There is a safeguard in the Bill against stale incidents becoming the subject of the amendments of the noble Lord, Lord Wills, simply because they are past and could be a long way past, but the meaning of a “major incident” includes the definition in Clause 28(2)(c), which says that a

“‘major incident’ means an incident that … is declared in writing by the Secretary of State to be a major incident for the purposes of this Part”.

For that reason, the Secretary of State could take the view that, if an incident were so stale that it ought not to be the subject of a major incident determination, he or she simply would not make one.

The other point I wish to make is that the noble Lord’s Amendment 119C shows the importance of the possibility of making the legislation retrospective. It talks about a single event or a series of linked events over time. In the case of a series of linked events, it may be the last event that gives rise to the need to call it a major incident but all previous events need to be taken into account as well. Therefore, the amendment shows how important the Wills amendments could be—if I can put it in that way.

I will speak briefly to Amendment 120 in the name of the noble Lord, Lord Ponsonby, which he has not addressed because no doubt he is going to wind up. I will not be winding up on behalf of these Benches as a result. His amendment concerns the possibility of declaring a major incident when only a small number of individuals are killed, injured or suffer major harm. To us, it is important that that amendment is permitted.

I take as an example—it is one that I simply thought of—the terrorist attack on Fishmongers’ Hall by Usman Khan in November 2019, when two people were killed and three more injured. In the words of the BBC a little while later, that incident

“touched the lives of so many”.

One knows that the incident must have touched the lives in a very serious way of those who intervened, those who witnessed the offences on London Bridge, and those who attended the Fishmongers’ Hall rehabilitation conference which led to such disastrous consequences. All were, in a sense, victims of the attack. All may have suffered, if not serious harm, at least some psychological harm. All may have needed some support. That need could be helped by the provision of advocacy services, advice or representation of some sort. The amendments in the name of the noble Lords, Lord Wills and Lord Ponsonby, taken together, would secure that that would be possible, even in the case of past events.

[Baroness Sanderson of Welton (Con)]

My Lords, on the amendments in the name of the noble Lord, Lord Wills, in some of the issues he raised—infected blood or sodium valproate—people raised the alarm and were not listened to over decades; it can take a long time for the enormity and scale of a tragedy to come to light. That is a defining theme for many of the issues that could potentially be looked at by the IPA. I fully support those amendments.

On Amendment 120, a concern about the way the IPA has been set up is the point about major incidents. It will kick in when there is a major incident, such as Hillsborough or Grenfell. In such an instance, there is a very good chance there will be a public inquiry; I think the public would demand it. There has always been a concern about incidents that perhaps do not meet that bar: there will not be a public inquiry but something appalling has happened and, as in the nature of this amendment, it reveals a systemic failure and it may be repeated. It would need the support of the IPA. Looking at the make-up of this role, I think we should be very careful not to overlook those incidents in our desire to talk only about major incidents.

--- Later in debate ---

[Baroness Newlove (Con)]

My Lords, I support this amendment. The Manchester Arena terror atrocity in 2017 chilled every parent in the country. When you watch your children head off to a concert or a party, excited and happy, you are never at ease until they are safely home. I have met many victims from this concert, and I have to say that it saddens me every time I hear about it. What happened that night is every parent’s worst nightmare and our hearts go out to them. We can only imagine their grief, which is still there today, and it is a loss from which they will never recover.

All of us in this Committee will want to be sure that these parents have all the support they need—this is what the Bill is all about. It is therefore deeply upsetting to hear that, after these parents sat through what must have been a harrowing public inquiry, they were then told that the registration of their children’s deaths would be done not by them but by a local authority official. This is bureaucracy at its most cold. The treatment of bereaved families by the state will always have a profound impact on their recovery. For those parents, being able to register their children’s death was, for them, an important step in their grieving process and it should be their right, as the parents, to have that facility.

It would appear that under the Home Office’s Births and Deaths Registration Act 1953 and the Ministry of Justice’s Coroners and Justice Act 2009, it is standard practice for a registrar to register deaths involving an inquest or inquiry. I understand that, if a person dies in usual circumstances, such as due to a health condition, a close relative can personally register their death. I did that in September for my mother, so I know that it is important. However, I am told that if they die in a major incident, it falls to the registrar. I also acknowledge that not all relatives want to register the death of a loved one, as in most cases, an interim death certificate is given soon after the incident for funeral arrangements —something I know about personally as well—but I want to see families being given a choice.

Having been to see so many Ministers is an insult: not just that they have been told “Yes, yes, yes” and then something else has been done, but every time they speak to a different Minister, it drains them. That they are having to explain, as parents who have lost children in the most horrendous way, beggars belief. What I am asking the Government and the Minister—all that is being asked for in this amendment—is that they be given that choice: that an extra space be found in the toolbar for the certificate, so that when a close family member wishes to be noted on the certificate, this can be achieved, without interfering with the coroner’s findings.

I understand that, sadly, it is too late for the victims of the Manchester Arena bombing, but I feel sure it will bring some solace to them that they have achieved something for future victims and can actually say “Goodnight” to the children they have lost.

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

My Lords, I wish briefly to add my support to this amendment. It seems to me that there is no good reason why the amendment should not be passed. We have heard from the noble Baronesses, Lady Newlove and Lady Thornton, about the emotional effect of suffering deaths of relatives in major incidents. It is quite clear that the emotional impact is severe. It is also quite clear that some alleviation, some relief, may be found in the process of registering the death. Why on earth should a relative not be able to register the death if they so choose? For that reason, I can see no reason to resist this amendment.

[Lord Roborough (Con)]

My Lords, Amendment 121, tabled by the noble Baroness, Lady Thornton, is intended to establish a regulation-making power to allow a qualified informant, typically a relative or close friend, to provide information to register a death where the death is the result of a major incident. I thank the noble Baroness for this intervention on such an important and complex issue. I also pay tribute to the Member for South Shields and the right honourable Member for Garston and Halewood for their commitment and determination in championing this cause on behalf of the families bereaved by the Manchester Arena attacks. I also extend my deepest condolences to the families who lost loved ones in that terrible incident.

The Government are committed to ensuring that bereaved people remain at the heart of the inquest process and are able fully to participate in it. Bereavement is never easy, but it is inconceivably difficult to lose a loved one in circumstances which, by definition, are unexpected and traumatic, so we fully understand the importance for bereaved families of having a role in the registration of their loved one’s death following an inquest. For them, as for all who are bereaved, this could be a vital part of the grieving process. In this regard, I agree with many of the comments from my noble friend Lady Newlove.

However, it is also our responsibility to uphold the integrity of the inquest process. While all deaths must be registered, not all deaths will be investigated by a coroner. Deaths which are subject to a coronial investigation and include an inquest cannot be registered until the inquest has concluded. That is because in such cases the inquest is where all the facts including the personal details of the deceased and the cause of death are established. The legislation requires the registrar to register the death following the receipt of a certificate from the coroner. The registrar has the sole responsibility to register all deaths.

The amendment does not disapply the registrar’s statutory duties in this regard and would exist alongside those requirements. So, while I fully understand and sympathise with the intent behind it, it is unclear what the statutory purpose of the relative’s provision of information and the status of that information would be.

In answer to the noble Lord, Lord Marks, I believe that there are a number of good reasons why we will not accept this amendment. We must be mindful that an amendment of this kind could inadvertently undermine the integrity of the inquest process, in particular where the bereaved family is not in agreement with the coroner’s conclusion at the inquest. Furthermore, the amendment is limited to those bereaved by a major incident. The distress of losing a loved one in this way is unimaginably difficult. However, I do not believe that it is right that we legislate for this now, knowing that there would be many who would not be able to utilise the new provision.

While I am sympathetic to the purpose behind the noble Baroness’s amendment, the Government cannot support it for the reasons I have given. That said, we are very aware of the sensitivities surrounding this issue and it is important that we identify the most appropriate way forward. In doing so, we must also take into account the practical implications of other legislation, such as the Data Protection and Digital Information Bill—referenced by the noble Baroness, Lady Thornton—also currently before this House, which will enable implementation of remote delivery of registration processes in the near future.

For these reasons, I can confirm that—as my ministerial colleague the Minister for Prisons, Parole and Probation announced in the other place—the Government will undertake a full public consultation, as soon as practicable, on the role of the bereaved in death registration following an inquest. This will enable us to gather a wide range of views on potential ways forward. I hope that the noble Baroness will welcome my reiteration of this commitment, even if it goes no further as she has asked, and that, together with the Members who continue to champion this issue in the other place, she will work with the Government as we seek a solution to this sensitive and complex issue.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Tuesday 13th February 2024 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support both amendments. I shall refer to a different group; the noble Baroness, Lady Brinton, mentioned several incidents that would cause the amendments to kick in. However, there is another category, and that is victims of state wrongdoing. For example, the “spy cops” scandal shows what goes wrong when a police unit goes rogue and the state compounds the abuse of power by doing all it can to minimise and cover up. Those cover-ups leave victims powerless and alone and are the reason we need this victims’ code to apply to them as well.

There are famous cases such as Hillsborough and the killing of Jean Charles de Menezes. There is also a long history of Met police officers—those of us who were on the London Assembly or the London police authorities saw this many times—being accused of crimes and allowed quietly to retire early.

There is the emerging scandal of sexual and domestic abuse being systematically ignored within the police service when the accusations are directed at police officers by women who are their partners or even fellow officers. We heard this week of examples in Devon, with officers accused but still promoted to units specialising in domestic violence. These are not one-offs or rotten apples; this is a systemic failure to protect women and ensure that they get justice. The victims’ code would help to redress that.

Many such victims have to crowdfund if they are to have any hope of engaging with the legal process to find justice. I have worked with many victims seeking justice through inquests and public inquiries, and it is a very disorienting process for them. I very much hope that these two amendments will encompass that group: those who are victims of state wrongdoing.

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

My Lords, these are probing amendments, as the noble Baroness, Lady Thornton, explained, and they would substantially increase the range of the Bill in relation to major incidents. That is all to the good. Part 1 of the Bill, as we know, is concerned with victims of criminal conduct and, because of the provisions concerning the new code, is relatively comprehensive. However, Part 2, in connection with victims of major incidents, is not.

Part 2 as presently drafted is concerned entirely with advocates for victims of major incidents. The introduction of the scheme for the appointment of standing advocates and other advocates is a welcome reform, but there are many other areas where victims of major incidents need more support than they currently receive. My noble friend Lady Brinton gave a number of examples. We heard of a further example last Wednesday: the argument about permitting victims’ relatives to register the death of those victims. That is an important issue—one which has received far too little attention before—but is only one of a very large number of issues facing victims of incidents that the Bill simply does not cover.

There are issues concerning the operation and impact of the coronial system more generally, for example, or the availability, establishment, conduct and reporting of public inquiries, as well as representation at those inquiries. There is also the implementation of recommendations of inquiries and investigations, and the monitoring of that implementation; the provision of information to victims and their families; the provision of practical and financial support to victims after major incidents; comprehensive signposting, as mentioned by my noble friend Lady Hamwee; and ensuring that at times of disaster there is a dedicated support system available to victims and their families.

Much of this has been called for by Victim Support and others over some years. The Government’s response has been helpful in providing for local resilience forums. These work well in some areas, but the evidence we have seen shows that they work far less well in others. Victim Support and other charities of course do a great deal to co-ordinate and supply support services, but they are charities and limited by funding restraints in what they can do.

Victim Support recommended in 2020 that local resilience forums should be under a duty to produce civil contingency plans to a minimum standard. I suggest that a new, separate code for victims of major incidents would be a sensible and practical way to achieve a number of worthwhile ends. Primarily, it would set out the services and responses that victims of major incidents would be entitled to expect from public authorities and others. Secondly, it would give victims comprehensive information on how to access the services they need. Thirdly, it would enable local resilience forums to understand what services they needed to provide and so ensure more comparability across the piece. Fourthly, it would establish a standard of good practice, to enable local resilience forums and all responders to know what is needed and expected. A feature of the code I would applaud is that it could be regularly updated to reflect best practice to ensure that unnecessary shortcomings in some areas could be addressed.

These are, as we have said, probing amendments and it is not for now to attempt to draft what should go into such a code. What is needed is a commitment to devote resources to drafting such a code, thinking carefully about it and to consulting on what is needed, with a view to such a code being ultimately incorporated in statute in the same way as we seek to incorporate the victims’ code in this Bill.

[Lord Roborough (Con)]

My Lords, I thank the noble Baroness, Lady Thornton, for Amendment 122. This amendment would require the Secretary of State to prepare and issue a new code of practice for victims of major incidents. I will focus my response on the content of Amendment 122, as Amendment 123 is consequential on the former. While I understand the intentions of the amendments, I do not believe they are necessary, because existing codes and related commitments are already in place to achieve their aims.

First, the purpose of establishing an independent public advocate is exactly as the noble Baroness has outlined. It is to ensure that victims understand the processes and actions of public authorities and how their views may be taken into account; to provide information concerning other sources of support and advice; and to communicate with public authorities on behalf of victims in relation to the incident, especially in situations where the victims have raised concerns. Through the advocate’s ability to act as a conduit between victims and the Government, victims will have the opportunity to make their views known and have their voices heard to effect change in real time.

Secondly, it is likely that in most circumstances in which a major incident is declared and an advocate is appointed the victims will have been a victim of a crime. In such instances, they are already covered under the victims’ code, which sets out the services and support that victims of crime can expect to receive from criminal justice agencies. An additional code for victims of a major incident may therefore be duplicative, and as such may be counterproductive.

The noble Baronesses, Lady Thornton, Lady Brinton, Lady Hamwee and Lady Jones of Moulsecoomb, as well as the noble Lord, Lord Marks, have argued powerfully that non-criminal major incidents may need to be addressed. Victims of non-criminal major incidents will have an advocate appointed to help them access support services, navigate the processes—

--- Later in debate ---

[Lord Roborough (Con)]

As I have already said, I believe that most victims will be victims of crime; most major incidents will involve criminal behaviour of some description, or a criminal investigation. We believe it is a subset, but nevertheless a very important subset, of victims who need to have their needs addressed. We completely agree with that.

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

The Minister has accepted that there is a subset and, as the noble Baroness, Lady Brinton, has demonstrated, it is a very important subset of victims who are not victims of crime but of tragic accidents or incidents. I am not sure that his answers so far and his speech so far have taken in the real difference, which is that victims of crime are involved in process that leads to—and is at least partially resolved by—a criminal trial, where there is to be such a trial, or a criminal investigation where it does not lead to a trial.

The Minister has accepted that the existing victims’ code is directed to that set of circumstances. Victims of a tragedy that is a major incident which does not involve crime—or, as the noble Baroness, Lady Thornton, pointed out, may or may not involve crime but does not lead to a criminal process—have a whole different set of needs that arise from tragedy rather than crime. I cannot understand from the Minister’s answers why a separate victims’ code is inappropriate in those circumstances. There may, of course, be areas of overlap but why is there no separate code to deal with this very real issue?

The additional point is that I would suggest—and the Minister has not suggested otherwise—that all of this cannot be addressed simply by the provision of an independent public advocate, however worthy that is, and it is.

[Baroness Jones of Moulsecoomb (GP)]

While the Minister is still sitting down, I agree with everything that has just been said but also the victims I was talking about—the victims of state wrongdoing—have not been treated as victims of crime so they would come under the original code, except they have not had access to all the information, and so on. It is worth understanding that the current code is not enough. Plus, I am “Jones of Moulsecoomb”, not “Jones of Whitchurch”—no offence.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, I support the amendments that call for proper support for this new role. It should not need to be spelled out that the IPA will need a budget. I happen to think that he or she should have a budget and discretion as to how best to spend it. I am a little alarmed by Clause 31, which provides that the Secretary of State “may pay” reasonable costs and, quite separately, “may make provision” for secretarial or other support. Should the latter be distinguished from reasonable costs incurred in connection with the exercise of their functions? I think not.

I am particularly prompted to mention this because I learned the other day that the newly appointed—after a period of 22 months—independent anti-slavery commissioner is having her budget reduced on a yearly basis throughout the term of her appointment, by 5% a year over the three years. I know that the two jobs are different positions, but that indicates strongly—and it is very much accepted by people in the sector, including the new commissioner—that the Government are downgrading that role. Do the Government agree on the importance of creating champions, if I may call them that, just to give them a collective noun? They have to make the job possible.

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

My Lords, as the noble Lord, Lord Wills, has explained, of the amendments in this group, Amendments 123A to 123D, 124B, 126A and 126B would perform a number of functions. They would inject urgency into the appointment of the standing advocate; they would give a Select Committee of the House of Commons a prominent role in the selection and appointment of the standing advocate; they would clarify the standing advocate’s role if other advocates were appointed as well; and they would provide that the appointment of additional advocates was to cover for unavailability or to provide additional assistance to the standing advocate. All those amendments would strengthen the statutory requirements and give the standing advocate role more significance and the standing advocate more personal responsibility for the performance of that role.

On Amendment 124A, I fully agree with the noble Lord, Lord Wills, on the need for urgency in establishing inquiries, and agree with all the observations he—and, indeed, the noble Baroness, Lady Sanderson—made about the delays inherent in the present system. The difficulty I see with the amendment as drafted—I would appreciate some clarity on this from the Minister—is the following:

“The standing advocate may request from the Secretary of State all the relevant powers to establish a fact-finding inquiry, including those to see and report on all relevant documentation.”


That would give the standing advocate the power to establish a fact-finding inquiry. My concern is that I am not convinced that establishing a fact-finding inquiry is the role of the standing advocate as envisaged by the Bill. I invite the Minister to explain how he sees the role of the advocate in inquiries and to consider, certainly between now and Report, how the role of arbiter or inquiry establisher is compatible with the role of representing and supporting victims. Is there another route—the noble Lord, Lord Wills, might also be keen to be involved in this discussion—to establishing an independent, quicker, more effective way of producing inquiries that does not involve the standing advocate, but that also does not involve the length and delay of a full-blown public inquiry in every case?

I also invite clarity from the Minister on how he sees the standing advocate’s role of providing support at inquiries. That is plainly envisaged by Clause 33, but Clause 33(5) permits advocates to support victims’ representatives; it does not deal with acting as victims’ representatives. Clause 33(7) would prevent a person representing victims if the person concerned was under 18—that is perhaps uncontroversial—or if, in so doing, they would be carrying out a legal activity. A legal activity is as defined in Section 12(3) of the Legal Services Act 2007.

It is unclear that representing a victim at an inquiry is a legal activity. Paraphrasing, or at least truncating, the meaning of Section 12(3) of the Legal Services Act 2007, a legal activity is exercising the right of audience, which is not a phrase normally used in representation at an inquiry; the conduct of litigation, which plainly an inquiry is not; offering advice, assistance or representation in connection with the application of the law; or legal dispute resolution. I do not regard any of those activities as equivalent to representing a victim or more than one victim at a public inquiry. I would be interested to know, therefore, how the Government see that role.

I turn now to the point made by the noble Baroness, Lady Sanderson, about the right to see all relevant documents. It seems to me that, whatever the role of the standing advocate, the right to see all relevant documents is central, as is the right to insist on calling for particular witnesses to be cross-examined.

It follows that, with the amendments as phrased, there is a right to make a request to the Secretary of State and the right to a reasoned and timely response to that request, when it concerns seeing documents and calling witnesses. This is a modest, probably overmodest, approach. It seems to me that the standing advocate ought to have an absolutely clear right to call witnesses or to have them called by the inquiry if it is independent, as I suggest it probably should be, so that they can be cross-examined by or on behalf of all parties.

Amendment 133ZA would require a review of the operation of the standing advocate scheme and the appointment of additional advocates six months after passing the Act. I quite agree with the noble Baroness, Lady Sanderson, that such a review is important because this is a complex and new mechanism. I suggest that six months after passing the Act may be too soon, because it is unclear how many major incidents would be declared in the first six months, and it is certainly unclear how long it would take to see how the system was working in practice. I think we would be looking at a period of at least two years or thereabouts before we have an effective review. However, I agree that a review of what is, in essence, a new system should be incorporated into the statutory scheme.

Finally, Amendment 128A, to which I have added my name, is the amendment on which my noble friend Lady Hamwee spoke. It seeks proper secretarial support and other resourcing for the standing advocate. The first point is that appropriate support is essential to enable the advocate’s role to be performed effectively. An advocate without a proper budget quite simply cannot do the job, but there is a further, very important point about independence. It is crucial that this advocate scheme acts independently. Without statutorily guaranteed resourcing, an appointed advocate would be dependent on the Secretary of State for the resources needed to carry out the job which they are charged to perform. That is entirely unsuitable.

There are amendments about the termination of advocates’ appointments, and the spirit of independence being threatened by the present drafting of the Bill, which we will come to in a later group, whereby the Secretary of State can remove an advocate for reasons that seem appropriate to him or her. We are all for the independence of advocates, but their role needs clarification and a review would be helpful.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I congratulate my noble friend on pursuing this matter over many years. I know that the noble Baroness, Lady Sanderson, has been at his side for most, if not all, of those years. My noble friend introduced this group comprehensively, so I will not go through the amendments in detail.

In essence, the first part of this group of amendments injects a greater urgency into the whole process, specifies roles and contexts of roles, and strengthens and increases the significance of those roles. As was self-evident, my noble friend is frustrated by the failure to actually implement this new role.

My noble friend went on to speak at some length about Amendment 124A, which would give the standing advocate powers to establish a fact-finding hearing. In talking about the necessity of that, he said that this was one of the most important amendments in the group. The figures he gave for the costs and delays in the various inquiries that we have had over the last couple of decades were very stark. I was not aware of the contrast between the way that the Hillsborough inquiry was conducted and the others that he mentioned.

--- Later in debate ---

[Earl Howe (Con)]

My Lords, as the noble Lord, Lord Wills, so ably explained, this group of amendments covers a number of issues: the appointment of the standing advocate, the function of the standing advocate, the appointment of additional advocates, and a review of the scheme’s effectiveness.

I will deal first with the noble Lord’s Amendment 123A, which would set a duty on the Secretary of State to appoint a standing advocate within one month of Royal Assent. The Government entirely share the noble Lord’s desire for the standing advocate to be in place as soon as possible once the Bill becomes law. However, we have a few concerns about the proposed amendment.

First, Part 2 of the Bill will be commenced by regulations made by the Secretary of State. That is the appropriate commencement mechanism for this type of provision. Secondly, it has always been our intention to run a fair and open competition for the office. Obviously, there is due process involved in that, which necessarily occupies a certain amount of time. Thirdly, as I hope the noble Lord will appreciate, the Government will want to carry out all relevant due diligence prior to making the appointment, and this process will also take a little time.

If the Government were to proceed as the noble Lord suggested, it would necessitate a direct appointment by Ministers. Of course, that is theoretically possible, but such appointments are normally used to address a short-term need and are typically for posts that last 12 to 18 months or something of that sort. This point also relates to the noble Lord’s other amendments on the appointment process, which would require the Secretary of State to obtain the approval of a relevant Select Committee and to hold a Motion for resolution before making the appointment, or to give an Oral Statement if it is refused.

It may help if I outline the Government’s current intentions for the recruitment process. Given the nature of the role and the tireless efforts and campaigning of so many people—not least the noble Lord, but also other parliamentarians, Bishop James Jones and, in particular, the Hillsborough victims and their families—for the establishment of the IPA, it is of the utmost importance that we get this right. On that basis, the Government intend to recruit the standing advocate through the public appointments process.

To remind noble Lords, theprocess is operated under the Governance Code on Public Appointments and is regulated by the Commissioner for Public Appointments. The scheme will ensure that the competition for the role is fair, open and transparent. It will provide the opportunity for anyone with the appropriate skills and experience to apply and help to ensure that we will have as a diverse a range of candidates as possible to choose from.

I would also like to reassure the noble Lord, Lord Wills, that the public appointments process already provides the opportunity for the appropriate Select Committee to interview a proposed candidate. If it would be helpful, I am open to discussing this point further with the noble Lord. Indeed, it is within the discretion of Select Committees to encourage potential candidates to apply. They can also hold a statutory officeholder to account once in post, as the noble Lord well knows. Additionally, we have also taken the step of ensuring, within this legislation, that the IPA will be subject to the scrutiny of the Parliamentary and Health Service Ombudsman, which adds a further layer of accountability. Taken together with the pre-appointment scrutiny that the public appointments process already affords Select Committees, it is the Government’s belief that no changes to the process are required at this time.

I now turn to Amendments 123D and 124B. These add a specific mention so that the clauses apply only when additional advocates are appointed. I do not think these amendments are necessary; the legislation as drafted already covers the point the noble Lord is trying to make. Ultimately, the clauses in question are intended to allow the standing advocate to provide a leadership function to any additional advocates appointed alongside them. Where no additional advocates are appointed, the leadership function would not be needed or executed. These amendments are therefore not necessary.

Amendment 124A in the name of the noble Lord, Lord Wills, seeks to grant the standing advocate the right to request all the relevant powers to establish an inquiry; to impose a duty on the Secretary of State to answer any requests from the standing advocate within two weeks; to impose a duty on the Secretary of State to make an Oral Statement to the other place should they refuse any request; and to impose a duty on the Secretary of State to demonstrate that they have had regard to various factors while considering the public interest. The noble Lord, Lord Marks, asked me to clarify the Government’s policy intention in this area. The Government have always been clear that the purpose of the IPA scheme is to support victims of major incidents, rather than undertaking their own independent investigations. Our position remains unchanged. This amendment would run counter to the policy intention.

The noble Lord, Lord Wills, quoted the words of my noble and learned friend Lord Bellamy in explaining the rationale for the Government’s approach. Briefly, the Government are of this view because they believe that giving the IPA investigatory powers could conflict with the work of other investigative authorities and risks duplicating or undermining them. I acknowledge all that the noble Lord said about the intended effect of his amendment. I am sure that he will know that, in recognition of the desire here and in the other place to see the IPA having a greater role in reviews, the Government announced additional functions for the standing advocate. The standing advocate’s functions, as set out in Clause 29, give it the ability to advise the Government on the most appropriate form of review mechanism in relation to a major incident and what the scope of that review should be. It will also have a vital role in relaying the views of victims in relation to this decision. The Government believe that this is the most appropriate form of involvement for an advocate to add value, without duplicating or undermining other processes.

While I obviously regret that the noble Lord and the Government are not at one on this issue, I hope he will welcome the shift that the Government have made. I did not close my ears to what he said; I also listened carefully to my noble friend Lady Sanderson. I would of course be happy to discuss this further with him and my noble friend in the coming weeks, as I know would my noble and learned friend Lord Bellamy. For now, I hope that the noble Lord will not feel the need to move the amendment.

My noble friend Lady Sanderson asked me what engagement has taken place with victims in shaping the role of the advocate. I can tell her that, since March, we have written to victims and given them an inbox, and we are happy to keep those conversations going while operationalisation continues. We have also met the representatives of the Grenfell and Hillsborough families. Further to that, we wrote to the victims of Hillsborough, Grenfell and Manchester at each stage of the Bill where amendments were being made, and very much welcomed their engagement.

On the question of whether, if Horizon occurred today, the victims could write to the IPA and ask it to look into the matter, the advocate would be able to ask questions of public authorities, such as the Post Office, and could advise the Government if it became aware of a developing situation. However, it could not currently represent Horizon victims, because this would be retrospective. If an IPA had been in place at the time that that scandal emerged, then they could have spoken to it.

On the question of whether the advocate could support victims at inquiries, at statutory inquiries the chair is able to make provision for legal representation for core participants. The advocate would not represent victims in a legal capacity at either inquests or inquiries.

The noble Baroness, Lady Hamwee, asked about—

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

I am sorry to intervene on the noble Earl. I may be an amendment or two later than the point in the speech which I address, but is he sure that Horizon would count as a major incident, bearing in mind the definition of major incident in Clause 28(2), where a major incident

“means an incident that … occurs in England or Wales after this section comes into force, … causes the death of, or serious harm to, a significant number of individuals, and … is declared … by the Secretary of State to be a major incident for the purposes of this Part”?

I can see that Horizon caused serious financial harm, but is that the harm envisaged? I am not sure that it is. Would the Secretary of State be entitled to declare a major incident in the Horizon circumstances?

[Earl Howe (Con)]

I think we have already debated the latitude that the Secretary of State enjoys in interpreting the word “significant” when we debated the previous group of amendments. The noble Lord has asked a very fair question; I perhaps should not have rushed into an answer to the question I was given on Horizon in particular. It might be wise if, rather than go further at the Dispatch Box, I wrote to the noble Lord about the Horizon case specifically.

The noble Baroness, Lady Hamwee, asked about the IPA’s secretarial and admin support; that was also touched on by the noble Lord, Lord Marks. We will be coming to that in the fourth group of amendments, so if they will allow, we can defer the point to that debate, which my noble friend Lord Roborough will be responding to.

--- Later in debate ---

[Lord Wills (Lab)]

My Lords, I rise briefly—the Minister will be relieved to hear—to support these amendments. What is important about them is that they would put on a statutory basis that the views of the victims will be communicated to the Secretary of State. As I have already said at some length, we need to do more and give more teeth to the powers of the independent public advocate, but this is a good step forward. I hope that the Government can accept these amendments, which really are not contentious.

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

My Lords, this group concerns the obtaining of the views of victims by the standing advocate and their being taken into account, or relayed to the Secretary of State so that they can be taken into account. The central point was that made by the noble Baroness, Lady Newlove. If victims of major incidents are to be given a voice and that voice is to be heard, they need, under this scheme, the standing advocate to be that voice—a voice that co-ordinates and articulates the victims’ response. It will often be a joint or combined voice and the stronger for that.

Under Amendment 124, the type of review or inquiry held would be the subject of the views that must be obtained and relayed. It is a matter on which the views of victims are strongly held. They are often views that are in conflict with the views of the Government. That is a central point about independence.

The next point under this amendment is their views on

“their treatment by public authorities in response to the major incident”.

Again, this is an area of not invariable but regular conflict between victims and government. The questions that arise are, “Was enough done to avoid the incident?”, “Was what was done done in time?”, and “Were sufficient resources devoted to relief and recovery after the incident?”. All those are crucial issues on which the voice of victims needs to be independently heard and taken into account.

Amendment 125 concerns the appointment of additional advocates and says the Secretary of State must seek victims’ views on whether to appoint additional advocates and whom to appoint. Again, that is a requirement that is plainly right, because the identity of the advocate and the appointment of additional advocates matter to victims, who are extremely concerned to know that the investigation and any inquiries are going to be properly carried out.

Finally, the views of the victims to be taken into account include the views that they express before the termination of an appointment of an advocate. Again, that is self-evidently right. We have in a later group an amendment tabled by the noble and learned Lord, Lord Hope of Craighead, removing the right of the Secretary of State to remove the standing advocate on such grounds as he thinks appropriate. I put my name to that. That is an important amendment that we will address when it comes, but it goes hand in hand with this amendment because the purpose of both reflects the reality that inquiries into major incidents may cast light on failings of government or organs of government that may cause the Government embarrassment.

One of the chief virtues of the independent public advocate system proposed in this Bill is precisely its independence of government. It is therefore essential that an advocate appointed to represent victims’ interests should be clear and free to carry out those functions fearlessly. If that involves criticism of government or individual Ministers, those criticisms should be made and investigated. The views of victims on the termination of an advocate’s appointment will therefore be central to that process. They should be central to any consideration of the termination of an advocate’s employment. That should not be left to the Secretary of State without regard to the views of victims.

[Earl Howe (Con)]

My Lords, I express my thanks to the noble Baroness, Lady Thornton, and the noble Lord, Lord Ponsonby, for these amendments, which bring us to an important dimension of any major disaster or incident: the need to give families a voice in decisions about the support they receive. I have a great deal of sympathy with the aims of these amendments. I will take them in turn.

Amendment 124 would require the standing advocate to obtain the views of victims of major incidents regarding any review or inquiry held into the incident and their treatment by public authorities, and then communicate those views to the Secretary of State. Let me say immediately that there is no disagreement here between the noble Baroness and the Government as regards the desired outcome. We agree that an important function of the standing advocate will be to champion victims’ voices to the Government and facilitate better engagement between them and government in the aftermath of a major incident. We agree that part of this involves the standing advocate understanding the views of victims and relaying them to the Secretary of State.

It is the Government’s intention that through Clause 29(2)(a) the advocate will communicate the views of victims of a major incident to the Secretary of State. This could include their views regarding any government-initiated review or inquiry into the major incident and their treatment by public authorities. This will provide victims with agency in the process, which is vital. It is therefore a matter of the best way to deliver this policy. The Government’s position is that it is best achieved without the Bill being overly prescriptive, and with Clause 29(2)(a) providing the foundation. A particular advantage of this approach is that the standing advocate would be able to advise on the full range of review mechanisms, including non-statutory inquiries—as I said a while ago to the noble Lord, Lord Wills—which by their nature cannot be specified in legislation. These are valuable options and can be very successful. The Hillsborough Independent Panel has already been mentioned as a good example.

The noble Lord’s Amendment 125 would require the Secretary of State to consider the views of victims before making the appointment of additional advocates. The intention behind the appointment of additional advocates has always been to prevent a single advocate being overwhelmed, or to ensure where necessary the specialist knowledge needed to provide swift and tailored support to victims. One of the key functions of the standing advocate, as outlined in Clause 29, will be to advise the Secretary of State as to the interests of victims, and the Government would consider this to include advice on whether additional advocates are needed and who may be suitable to appoint. This advice could include the views of victims which they had gathered.

Furthermore, as the Secretary of State has already committed, we will publish a policy statement that will give additional detail about the factors the Secretary of State will consider when appointing additional advocates, including the needs of victims. We believe this to be a better and more flexible approach to ensure that additional advocates can be deployed swiftly when needed. I am concerned that if we were to proceed as the noble Lord suggests with this amendment, a consultation process with the victims would be required prior to any further advocates being appointed. A consultation has the potential to unduly delay the appointment of further advocates and reduce the agility of this scheme to react to the developing situation. Furthermore, the last thing that we would wish to impose on victims during their grief is an additional bureaucratic consultation process.

I come lastly to the noble Lord’s similar Amendment 128, which says that the Secretary of State must consider the views of victims before an advocate’s appointment is terminated. There are a few scenarios in which we imagine that the Secretary of State will use his or her discretion to determine the appointment of an advocate using this power. I will speak to this in more detail in response to the amendment from the noble and learned Lord, Lord Hope, in a later grouping. However, I believe it would be helpful to briefly summarise those scenarios.

First, should additional advocates be appointed, it is right that the Secretary of State has the ability to scale down the number of advocates should the need no longer exist when the peak of activity is over. Secondly, the Government have always been clear that we will prioritise rapid appointment of an advocate following a major incident to ensure that victims are supported from an early stage. However, it may be necessary, following a greater understanding of the developing needs of the victims, or conversely the capacity of an advocate, to substitute one advocate for another. Thirdly, this power may be used to replace an advocate who does not command the confidence of the victims. I hope that those explanations are helpful to reassure the noble Baroness as to the intent behind this provision.

Lastly, as with the noble Baroness’s Amendment 125, I am concerned that, should the Secretary of State be required to carry out a consultation process with the victims, that would severely cut across the ability of the scheme to be flexible and adapt quickly to changing demands.

I believe that victim agency—if I may use that word again—is important, and that has come through strongly during the passage of the Bill, not least in another place. While the amendments serve as a reminder of that principle, I do not believe they are necessary.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

I support the amendment of the noble and learned Lord, Lord Hope. There can be no disputing that independence is key, and it would be very sensible if the Bill was slightly amended to refer to the independent standing advocate, or something of that kind. Independence not being in dispute, the issue is how to safeguard it. Normally, independence is achieved by three things: the first is a process of appointment, which we have already discussed; the second is the provision of resources—again, that has been raised but I am not sure whether it has been entirely dealt with; the third, and most critical, is removal. It seems to me that that is what this amendment is concerned with.

There are two ways of removing to ensure independence: one is to specify the grounds in the Bill, while the other is to derive an independent process. One or the other will work. There are all kinds of processes, such as an independent parliamentary process or an independent tribunal. But bearing in mind the uniqueness of this post, it may be best to look at specifying in the Bill the grounds for removal. That is a matter for discussion and debate.

I do not wish to add anything about Amendment 129, save to support it, but I would add one observation on Amendment 132. It is critical to show that everything is open, and that if the standing advocate is to issue guidance, such guidance is made public. We do not want, in this area, questions relating to what is going on without the victims having full confidence.

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

My Lords, I shall be relatively brief on this short group of amendments. I stated my support for the amendment of the noble and learned Lord, Lord Hope, in advance, in principle, during debate on the third group. I apologise for mentioning his amendment before he had had an opportunity to speak to it. However, his reasoning was a development of the reasoning that I then expressed. I reiterate his point: for an independent advocate system to work, the advocate must be independent. I take the point of the noble and learned Lord, Lord Thomas of Cwmgiedd, that if “independent” has only appeared, or might only appear, by virtue of the amendment of the noble Lord, Lord Ponsonby, that is wrong. We have all called it independent because the independent public advocacy scheme is a term that has been frequently used. The word “independent” ought to appear in the Bill specifically, and the independent standing advocate could be called exactly that to make the point clear.

That means that such an advocate must be able to advance the victims’ interests without a concern that they are liable to be removed by the Secretary of State without very good reason. For such reasons

“as the Secretary of State considers appropriate”,

which is the wording used in the Bill, is just not good enough. Nothing less than the formulation of the noble and learned Lord, Lord Hope, of them being

“unfit or unable to fulfil their functions”

will do as a justification for removal.

I take the point made by the noble and learned Lord, Lord Thomas. This could also be achieved by a process for termination, not simply by the grounds for termination. Those are not necessarily alternatives; we could have both approaches. I suggest that the Government ought to consider whether the process should not be strengthened. To make the point I have made before, the Bill is shot through with the difficulty that the interests of the victims may conflict with the interests of the Secretary of State. That important conflict of interest can be resolved only by removing power from the Secretary of State.

I turn to Amendment 129 in the name of the noble Lord, Lord Ponsonby, which proposes that office facilities may be afforded by the Ministry of Justice, provided that they do not compromise the functional independence of the standing advocate. That is another point on independence. It is plainly administratively convenient and may be necessary that the Ministry of Justice provides the office facilities, but that does not mean that the bodies are not completely separate, and they must be.

Amendment 128A in the name of the noble Lord, Lord Wills, to which I have added my name, was moved into the second group, but Amendment 129 remained in this group although they are on similar subjects. The noble Earl, Lord Howe, said that the noble Lord, Lord Roborough, would answer on Amendment 128A. The point I made was that proper secretarial support and resources are crucial for the standing advocate if the system is to work. The noble and learned Lord, Lord Thomas, made the point about resourcing in general terms but made it very powerfully. Appropriate support is essential for the role to be properly done, as are statutory guarantees of adequate resourcing.

Amendment 132 in the name of the noble Lord, Lord Ponsonby, deals with guidance to other appointed advocates on what matters they should consider in relation to a major incident. It is not right that such guidance should come from the Secretary of State. The Secretary of State may have interests in diverting attention to some aspects of a major incident against the interests of considering others. Guidance should come from the standing advocate who has, as the noble Earl, Lord Howe, put it earlier, a leadership role. That is the proper source of such guidance and not the Secretary of State, who has a political interest that may be opposed to the interests of the victims. I suggest that the Bill’s formulation on this is simply quite wrong in principle.

[Lord Roborough (Con)]

My Lords, I thank the noble and learned Lord, Lord Hope of Craighead, for his amendment. This group of amendments concerns the independence of the advocate, and therefore I will discuss them together.

First, the amendment from the noble and learned Lord, Lord Hope of Craighead, seeks to limit the discretion of the Secretary of State as to the grounds on which an advocate’s appointment in respect of a major incident may be terminated. I believe it will be helpful if I explain the rationale behind the current provisions in the Bill. I hope that the noble and learned Lord will be reassured that this power will be used carefully.

There are a number of scenarios in which we envisage the Secretary of State exercising their discretion to terminate the appointment of an advocate. First, for the scheme to be as agile as possible, it is important that we can adapt the resource required to support victims. No major incident is the same, and the processes that follow can often take years to conclude. During this time, there will likely be peaks of activity when it may be prudent to increase the number of advocates actively supporting victims. Following these peaks, it is only right that the Secretary of State has the ability to scale back the scheme to be proportionate. This power enables the Secretary of State to do that effectively.

Secondly, we have always stressed the importance of being able to deploy an advocate as quickly as possible following a major incident. It may be appropriate, following a greater understanding of the developing needs of the victims, to substitute one advocate for another who may be better suited by virtue of their skills or expertise. The Government believe that having this flexibility is important. This amendment would diminish the Secretary of State’s ability to ensure that victims have the best possible representation.

Thirdly, as we have heard throughout the various debates on this part of the Bill, it has been highlighted that victims must have confidence in the advocates for them to be effective. The Government therefore anticipate another use for this power: to remove advocates who may not command the confidence of victims, as touched on by the noble Lord, Lord Marks, in the debate on the previous group, or stand down any advocates towards the end of official processes because victims no longer want or need support from the advocate.

To go a little further, the reasons why the Secretary of State may terminate an advocate’s appointment could also include a lack of capacity, misbehaviour or a failure to exercise their functions in accordance with their terms of appointment. These terms of appointment, including the potential grounds for termination, will be published. The views and needs of victims are incredibly important. A strong emphasis will be placed on the support needs of the victims, and decisions on the termination of an advocate will always be made with these in mind. Therefore, while I understand and recognise the intent of the noble and learned Lord’s amendment, the Government believe it is necessary for the Secretary of State to have a wider discretion in this area.

I completely agree with the noble and learned Lord, Lord Hope, that independence is critical. We believe that the Bill protects that. However, there was a constructive suggestion from the noble and learned Lord, Lord Thomas, that “independent” be added to the definition of the advocate in the Bill. I will take that away to the department.

The amendment from the noble Lord, Lord Wills, would impose a duty on the Secretary of State to provide the advocate with

“secretarial and all other support necessary for them to exercise their functions effectively”.

While he is not in his place, I would like to answer the noble Lord, Lord Marks, on this point. The advocates will be supported by a permanent secretariat, and the Ministry of Justice has already allocated funding for this. Clause 31 provides for an effective system of support for the independent public advocate by making provisions for a secretariat and remuneration. Work is already under way to provide the advocates with this secretariat and to ensure appropriate separation between them and the Ministry of Justice.

I will take the amendments from the noble Lord, Lord Ponsonby, in turn. The first seeks to make it clear in the Bill that advocates will sit within the Ministry of Justice for administrative purposes but be operationally independent. While I support the intention and spirit behind this amendment, the Government do not believe that this is necessary as this is already our intention for how this new statutory office will operate. Furthermore, the wording of this amendment may not best achieve its goal. It is generally not helpful to refer to government departments by name in legislation, due to any potential machinery of government changes.

The Government are committed to the operational independence of the standing advocate and any advocates appointed in respect of a major incident. The Government took steps to bolster the advocate’s independence earlier in this Bill’s passage by empowering them to report independently and at their own discretion. The legislation is also clear that the advocates will make decisions and utilise their experience to provide support to victims of a major incident in a manner they deem appropriate.

The other amendment from the noble Lord, Lord Ponsonby, seeks to transfer the power to issue guidance to advocates appointed in respect of a major incident from the Secretary of State to the standing advocate. I reiterate the Government’s commitment to the operational independence of the standing advocate and any advocates appointed in respect of a major incident. They will be empowered to take decisions and utilise their experience in a manner that the advocates deem appropriate. However, given the nature of major incidents and the unpredictability of the future, we believe that the Secretary of State’s ability to issue guidance is crucial to future-proof the scheme. The Government are mindful that guidance issued by the Secretary of State should not have any effect on the independence of advocates, which is why Clause 38 specifically prevents this guidance being directed at any specific advocate or incident.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Monday 26th February 2024 Lords Chamber

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

My Lords, this group of probing amendments, which have the aim of ensuring decent and necessary payments to all those bereaved in this disastrous scandal, has given the Committee the chance to consider the appalling plight of the victims of the infected blood scandal.

We welcome Clause 40, in particular Clause 40(3)(a), which says that:

“In exercising its functions, the body must … have regard to the need of applicants for speed of provision, simplicity of process, accessibility, involvement, proactive support, fairness and efficiency”.


It is only to be hoped that the Government live up to the promise of that clause in future, because they have signally failed to do so in the past.

If this Bill has taught us anything, it is that all victims of crime, major incidents and appalling and deeply shocking medical errors such as this, as well as other administrative disasters such as the Post Office Horizon scandal, have so many needs that resemble each other. We need early admissions of responsibility and culpability. We need government and administrative bodies to face facts. We need to ensure that victims have early access to the services and support they need and that such services and support are in practice provided in full and in good time.

Of course, one of the tragic aspects of this scandal is that the need for speed is particularly severe. It is worth reminding ourselves that, since Sir Brian Langstaff’s interim report of April 2023, more than 70 victims have died. The noble Lord, Lord Bichard, gave evidence to that inquiry, as did the noble Lord, Lord Owen. Both spoke eloquently of its conduct, and it is worth remembering the conclusion of the noble Lord, Lord Bichard, that the state let people down and should accept responsibility. He spoke of defending the indefensible, and the noble Lord, Lord Horam, echoed his words. Delaying compensation is denying responsibility. As all noble Lords who have spoken have said, there is no reason at all to wait any longer—certainly not until the Government have digested at length the contents of Sir Brian’s final report. Any such delay would be a travesty of Sir Brian’s principal call, which was for urgency.

Sir Robert Francis’s recommendations, in his report in June 2022, on the way that compensation should be handled, along with Sir Brian’s report, now need urgent implementation. It is to be hoped that the work of the expert panel—established under the chairmanship of Jonathan Montgomery, who is the chair of Oxford University Hospitals NHS Trust, which was not a mile away from involvement in the crisis—does not delay or water down the recommendations of the two reports. It is right to say that the campaigners are deeply concerned, as the noble Baroness, Lady Campbell, stressed.

In opening the debate, my noble friend Lady Brinton and the noble Lord, Lord Owen, pointed out the strength and determination of this very long campaign. We mourn Lord Cormack, whose involvement in the campaign was also extensive and long lasting.

The noble Lord, Lord Owen, spoke of the difficulties facing doctors, and the lack of political will needed to ensure self-sufficiency in blood products in this country. We can only hope that the noble Lord’s optimism in expecting the Government now to react quickly and finally, following the report due in May from Sir Brian Langstaff, is justified. My noble friend Lady Featherstone and the noble Baroness, Lady Campbell, added their accounts of personal tragedy, and thereby movingly added to the demand for urgency.

We know that the Horizon case led to definitive action only following ITV’s television drama. It should not be the same with the infected blood scandal, but we understand that ITV has commissioned Peter Moffat to write such a drama, so perhaps public opinion will come to the rescue once again. The burden of my speech, and the speeches of all noble Lords who have spoken today, is that this should not be necessary in a civilised and compassionate democracy.

[Earl Howe (Con)]

My Lords, in arriving, as we now have, at Part 3 of the Bill, I should like to begin by thanking all noble Lords who have spoken so powerfully and movingly on a set of events which many regard as constituting the worst disaster in the history of the National Health Service. The story of those who received infected blood as part of their NHS care and treatment is one of unimaginable suffering and terrible tragedy over more than four decades. It is a story that is still not yet over. The victims’ suffering has been made even worse by an absence of full justice for those individuals and, alongside that, a failure to reach—as far as may be possible—a sense of closure.

The official public inquiry currently under way, under the chairmanship of Sir Brian Langstaff, is the start of delivering the justice that is needed. The inquiry has been informed by the expert work of Sir Robert Francis, and Sir Brian has so far published two interim reports on his findings, with his final report due on 20 May. Meanwhile, in the other place, Clause 40—as it is now—was added to the Bill to speed up the delivery process.

The Government accept the will of Parliament that arrangements should be put in place to ensure, as far as reasonably practicable, that the victims receive justice as quickly and efficiently as possible. Therefore, my desire—and, I trust, that of all noble Lords—is to see the Bill added to the statute book as soon as is reasonably practicable. The Government are well aware that every passing season sees more suffering, death and bereavement. We are therefore eager to avoid more needless delay.

Ministers have already taken action and given a number of undertakings. First, we have promised that within 25 sitting days of Sir Brian Langstaff’s final report being published, we will make a Statement to Parliament setting out the Government’s response. The period of 25 days is not a target but a deadline. We will issue our response as soon as we possibly can.

Secondly, in response to a recommendation from Sir Brian, we have made interim payments amounting to £440 million to infected individuals or bereaved partners registered with existing infected blood support schemes.

Thirdly, in readiness for Sir Brian’s final report, we have appointed Sir Jonathan Montgomery to chair an expert group whose remit is to advise the Government on some of the legal and technical aspects of delivering compensation. I realise that some have questioned Sir Jonathan’s appointment because of his former connection with Bayer. Noble Lords may wish to note that Sir Jonathan ceased to be a member of the Bayer bioethics council on 31 October 2023. The council was an independent advisory group which had no role in the day-to-day operations of the company. It has had no executive power in the operational business of Bayer.

I emphasise that nothing in the work of the expert group is intended to cut across the conclusions of the inquiry or the advice of Sir Robert Francis—quite the opposite, actually. The expert group is there to enable Ministers to understand certain technical issues and thus enable decisions to be taken more quickly.

On the amendment passed by the House of Commons, which we are now considering, noble Lords will understand that the provisions of any Bill need to be legally coherent and should not cut across the integrity of the statute book. There are two principal defects with Clause 40: first, its coverage does not extend to the whole of the United Kingdom. The Government are clear that infected blood is a UK-wide issue. For that very reason, the infected blood inquiry was set up on a UK-wide basis. In March 2021, we announced uplifts to achieve broad financial parity across the UK’s infected blood support schemes, increasing annual payments to beneficiaries across the country as a whole. Maintaining a commitment to parity across the UK is extremely important.

We also need to agree on a set of arrangements that are workable and, above all, work for victims. It is therefore essential for the UK Government to engage with all the devolved Administrations with those aims in view. That is what we are now doing. My right honourable friend the Minister for the Cabinet Office met counterparts from the Welsh Government, Scottish Government and Northern Ireland Executive earlier this month to discuss this matter; those discussions will continue.

The second principal defect of Clause 40 is that in proposing the establishment of an arm’s-length body, as Sir Brian recommended, it does not also propose any specific functions for that body. The Government’s intention, therefore, is to bring forward an amendment on Report which will correct these two deficiencies and add further standard provisions to ensure a more complete legal framework when setting up an ALB. I plan to engage with noble Lords in advance of Report to discuss the content of the government amendment once it has been drafted.

--- Later in debate ---

Against that background—again, I wish that matters were otherwise—I regret that I cannot commit to a timetable or comment on the scope of any further interim payments at this time. However, I come back to what I emphasised earlier: the Government’s twin priorities are certainty and speed. With those aims in mind, I assure the Committee that the government amendment on Report will have the desired effect of speeding up the implementation of our response to the inquiry’s findings. To provide further reassurance to the noble Baroness—

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

The Minister mentioned that there will be government amendments on Report to address the deficiencies in Clause 40 that he has identified. Does he envisage having the opportunity, between now and Report, to prepare amendments to address some of the other legal impediments—for example, to widening the cohorts—that he has identified? That could accelerate clarification and speed up the process.

[Earl Howe (Con)]

I anticipate using every opportunity available to engage with noble Lords on not only what the amendments will comprise but what we intend to do thereafter. As the noble Lord will appreciate, there is a wealth of regulations in this space. I venture to say that quite a lot of the detail of the arrangements will be contained in regulations, which will be laid as soon as possible. To the extent that I can go into detail on what those regulations will contain, I shall be happy to do so, but I hope that the noble Lord will understand that I am not in a position to do so today.

--- Later in debate ---

[Lord Burnett of Maldon (CB)]

My Lords, in the absence of the noble and learned Lord, Lord Thomas of Cwmgiedd, who is abroad at the moment, I move this amendment and will speak to the others in this group, save for Amendments 146A, 174 and 175 which stand in the name of the noble Baroness, Lady Hamwee.

Clause 44 enables the Secretary of State to refer a decision of the Parole Board to release what is known as a top-tier prisoner for a judicial decision either to affirm or to quash a decision of the Parole Board. Top-tier prisoners are those who have committed the most serious offences. The Bill identifies the Upper Tribunal as the court to which referrals will be made, save in cases where there is sensitive material, in which case the court is the High Court.

The principal amendment in this group, which would amend Clause 44, is to propose that all referrals go to the High Court; in particular, a

“Divisional Court of the King’s Bench Division”.

The other amendments that we propose make necessary changes elsewhere. The reason for proposing these amendments is to ensure that the judicial decision is made by a court whose members are well equipped by experience to make the necessary assessment of risk.

The background is that the cases will necessarily involve serious offending and be referred by the Secretary of State because of at least an unease about the decision of the Parole Board. That Parole Board will be made up of individuals with considerable experience in evaluating risk in the context of criminal offending. Any review or reconsideration should be conducted by a court that comprises judges with similar such experience. None of the chambers of the Upper Tribunal currently has members with that necessary experience, but the High Court does.

A Divisional Court of the King’s Bench Division deals with criminal cases in the High Court. It is almost always composed of judges who sit in the Criminal Division of the Court of Appeal; that is, a Lord or Lady Justice and a High Court judge. Those judges have extensive criminal experience; in particular, when dealing with sentencing, either at first instance as trial judges or on appeal. They are used to making decisions which require them to evaluate risk and, in particular, whether an offender is a dangerous offender, which leads to a suite of different sentencing options. In those circumstances, they are well suited to the task which the Bill will empower the Secretary of State to require a court to undertake.

The Bill itself envisages that the High Court will perform this role in some cases. This amendment suggests that it would be more effective, and deliver the outcome that the Bill seeks, were the High Court always to be the destination for these referrals. I beg to move.

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

My Lords, I agree with every word uttered by the noble and learned Lord, Lord Burnett of Maldon. I am sure that the same words, or words to similar effect, would have fallen from the lips of the noble and learned Lord, Lord Thomas of Cwmgiedd. They echo the sentiments of a number of those who have briefed noble Lords on these issues relating to the Parole Board.

I will be brief. There is one overriding principle, which is that the Parole Board should be, in effect, an independent, quasi-judicial body. A number of concerns have been expressed about the prospect of the Secretary of State having the power to refer decisions of the Parole Board to another body. One reason for the amendments in the name of my noble friend Lady Hamwee, to which I will turn shortly, is that concern.

The idea that this jurisdiction to consider referrals by the Secretary of State should be a matter for the Upper Tribunal, which is not a body involved with the prison system at all—it has, as the noble and learned Lord pointed out, no relevant chamber—and is not concerned with the sentencing, treatment or release of offenders, is an odd one. That decision should plainly be, we would suggest, the decision of a court used to dealing with criminal justice and with the sentencing and imprisonment of offenders. Loosely stipulating that it should be the High Court, without the division named, or the Upper Tribunal is wrong.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

[Lord Moylan (Con)]

I am somewhat crushed by the fact that the noble Lord is able to bring before your Lordships’ House a point he recalls, after 14 years, simply from memory but which I had to spend a large part of this afternoon looking up so that I could get the wording correct, and which I was about to turn to imminently. Because I was about to say that this amendment is not in any sense radical: it simply builds on a power that the Secretary of State already has, and makes it a duty.

My noble friend is referring—I am sure he recalls this better than I do—to Section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which was, indeed, his legislation. That section gives the Secretary of State the power, by statutory instrument, to amend the Parole Board’s release test for IPP prisoners, not excluding the manner in which this amendment would oblige the Secretary of State or the Government to change the current provisions.

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

I heard what the noble Lord, Lord Clarke, had to say and I know that if my noble friend Lord McNally were in his place, he would say that when he, as a junior Minister, and the noble Lord, Lord Clarke, were at the Department of Justice, they were of the view that it would be a matter of a short time only until Section 128 would be implemented. It is a matter of great disappointment to my noble friend that it has taken until now—and indeed not yet—for that section to be implemented reversing the burden of proof.

[Lord Moylan (Con)]

I am very grateful. Again, my speech is being shredded in advance by points that I was about to make. Really, we are making it extremely easy for my noble and learned friend the Minister to agree with us. What we can all agree on, as a matter of fact, is that Section 128 of LASPO has not been implemented, 14 years on. It is for that reason that this amendment is being brought forward, leaving the Government with no choice but to oblige them, in effect, to deal with IPP prisoners in the manner that my noble friend has indicated was always the hope and intention.

In fact, I was going to make reference at this point to a remark made by my noble and learned friend Lord Clarke at an earlier stage when we were discussing IPP prisoners: he said that nobody at the time—in 2012—believed that there would still be IPP prisoners in confinement 14 years later. It is this point that I am trying to address. Very simply, this is a very small shift in a power that already exists for the Government. It is therefore, in effect, a very modest amendment and one that I hope both my noble and learned friend the Minister and the Opposition Front Bench will feel able to support.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Tuesday 30th April 2024 Lords Chamber

[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.

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

My Lords, while we support the amendments from the noble Lord, Lord Wills, in view of the explanations he gave for them in Committee and today I shall not add to what he said on them, except for Amendment 119AA, to which I will turn. I should also add that we thoroughly support the amendment tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd. We should all be mindful of his question, “Is this any way to run a union?” No, it is not, because there is a certain tactlessness, which is offensive and should be reversed, about the way the London Government sometimes regard devolution.

I will say a word or two about Amendment 104, tabled by the noble Lord, Lord Ponsonby, although he has not yet spoken to it. I intervened on the principle of that amendment in Committee because it seemed to me then, as it does now, that the number of people killed or seriously injured in an incident is not and should not be the determining factor in whether it is a major incident. In Committee there was discussion about whether the Horizon scandal could be classified as a major incident because of the number of deaths and the serious harm that was caused, even though that harm may be psychological or emotional, and we questioned that. We also considered the Fishmongers’ Hall attack in which the significant number threshold was plainly not met, but the effect on the wider public of that event was traumatic, deep and widespread, I suggest, certainly enough to enable it to be properly classified as a major incident.

Since Committee, the noble Lord has narrowed his amendment significantly. It now seeks to permit the Secretary of State to classify as a major incident any incident where the circumstances indicate systemic failings of a public body and that such circumstances might recur, even where the significant number threshold is not met. I should have thought that the Government could have accepted and should accept that amendment. I will be very interested to hear whether the Minister considers that it is acceptable or whether he has some alternative; and, if not, why he considers that the number of dead and injured is a necessary condition for the appointment of public advocates.

Amendments 109 and 110 from the noble Lord, Lord Ponsonby, concern considering the views of the victims before appointing an additional advocate and before terminating the appointment of advocates. Those amendments go some way, although a limited way, to ensuring the independence of advocates. That independence is an essential cornerstone of the scheme: independent advocates having the ability, the willingness and, indeed, the obligation to tell the truth as they see it, to argue for the truth as they see it and to criticise where they see the need. Otherwise, there is a danger that this scheme could prove a route to whitewashing the blunders of public bodies, which is something we all wish to avoid.

As to Amendment 119AA, tabled by the noble Lord, Lord Wills, on which we expect he may wish to divide the House, the decision on whether to hold an inquiry into a major incident lies at the heart of the scheme. I suggest that he has made a powerful case that the power to establish an alternative fact-finding inquiry is important, for all the reasons he has given. It is also self-evident that any fact-finding inquiry can be effective only with access to all the relevant evidence, which is set out in his amendment. The very fact that the Government are resisting this amendment suggests a lack of self-confidence to ensure a thorough and independent scrutiny of major incidents, and that is why we shall support the noble Lord, Lord Wills, if he divides the House.

[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.

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group concerns the victims’ code for major incidents. In speaking to Amendment 114, I am speaking to all the other amendments in this group as well.

We believe that this Bill represents a missed opportunity to extend entitlements of the victims’ code to victims of major incidents. Victims of major incidents will have suffered serious harm, often at the hands of state or corporate bodies. However, they do not receive the same recognition from government as victims of crime and so are not entitled to the same minimum level of support and services. Instead, they are often expected to navigate complex legal processes with little recognition of the harm they have suffered or the trauma they have faced. While the position of victims in the criminal justice system is far from perfect, as I have mentioned, organisations working with bereaved families have flagged a distinct lack of support for victims in the contexts of inquests and inquiries.

There is no principled reason to focus on improving the experience of victims in one context over another, while failing properly to recognise the needs and experiences of victims in a non-criminal context. It is also worth recalling that inquests and inquiries, particularly those relating to major incidents as defined by the Bill, often run concurrently with or prior to criminal investigations, allowing certain minimum entitlements in one process and not the other. This risks undermining the confidence of victims in both systems. There is little use in trying to ensure that individuals are supported through and engaged with the criminal process when they are at risk of being—or have already been—let down by a separate legal process addressing the same events. This provides an additional justification for affording victims in the inquests and inquiries contexts similar minimum entitlements to those in a criminal justice setting. Failing to do so is not only unfair but runs counter to the Government’s stated aim of ensuring that victims have confidence that they will be treated in a way they should rightly expect. I beg to move Amendment 114.

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

My Lords, I was pleased to add my name to Amendments 114 to 117, tabled by the noble Lord, Lord Ponsonby, which I supported in Committee and support again.

To those of us on these Benches, there seems to be no justification for limiting the protection and support for the victims granted in this Bill by the requirements for a victims’ code to victims of crime. It is not a massively radical step to produce an additional victims’ code for victims of major incidents which would give similar protections to those provided by the victims’ code for victims of crime—but tailored to victims of major incidents.

Part 2 of the Bill establishes the important scheme that we have been discussing for advocates of victims of major incidents. What it does not do is provide the necessary signposting for victims of major incidents to the assistance that they need—assistance of all types wherever available. There are particular issues for victims of major incidents and their families that do not necessarily arise for victims of crime, to do with accessing medical, psychological, financial and social help, among other things, in the wake of such incidents. The issues may be similar, but they are not completely overlapping.

Dealing with issues of bereavement and support for families following injury, dealing with issues connected with investigating and establishing responsibility for major incidents—these issues are very different in some cases from those facing victims of crime. However, there is no material difference in the need or justification for a separate code for victims of major incidents. If this Bill is a victims Bill, it should cover victims of major incidents as well.

On these Benches, we cannot see why we do not take the opportunity with this Bill of laying the ground for a similar code for victims of major incidents. I look forward to hearing how the Minister justifies passing up that opportunity.

--- Later in debate ---

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

My Lords, I support both amendments in this group. On Amendment 118 from the noble Lord, Lord Ponsonby, it is accepted that the whole question of publicly funded representation at inquests has been a grave injustice for many years. Amendment 118 seeks to correct that injustice, which involves a huge imbalance between the families of victims, public bodies and companies that are liable to be blamed for deaths. All those have representation that they can afford, whereas the families and bereaved do not. That injustice should be put right and this amendment seeks to achieve that.

For all the reasons given by the noble Lord, Lord Wills, I support his amendment on the post-mortem process and the code of practice designed to preserve the dignity of the deceased. But I would go a little further: the code of practice needs to look at the whole process that precedes the public part of the inquest.

In recent months, in two separate cases, I have helped the parents and the widow of victims of medical accidents. They have had real difficulties in getting at the truth and securing pathologists’ reports and post-mortem reports from the coroner’s office. Swift availability of such reports and swift disclosure to bereaved parents and families are of great importance. If this amendment were to see the light of day—I understand that it is only probing—I would suggest that the code of practice should go wider than simply preserving the dignity of the bodies to ensuring that bereaved families are not further hurt by avoidable delay, making that history.

[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.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I am very grateful to the Minister for what he said and the amendments he has put forward. For reasons that would be boring to explain, they achieve exactly the same result in practice as the amendments put forward by myself and the noble and learned Lord, Lord Burnett of Maldon. I am delighted that the Government have accepted this and I concede that their amendments are simpler.

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

My Lords, I simply say that we support these amendments; we argued for them in Committee. A view I expressed then was that it was bizarre that the Bill provided for the Upper Tribunal to determine Secretary of State referrals from the Parole Board of release decisions, with the High Court involved only in cases with sensitive material.

We also agree that releases should be suspended pending decisions on such referrals by both the Secretary of State and the divisional court. The only further point I will make is that I hope that the Minister will be able to indicate from the Dispatch Box that such referrals should generally be dealt with as expeditiously as possible, to minimise the anguish of people waiting and the risk of prisoners having their time in custody unjustly extended by the delay.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, thank the Minister for the government amendments in this group. The Government have listened carefully to the two previous Lord Chief Justices and decided that the High Court is the most appropriate place to hear parole referrals. The noble and learned Lord, Lord Thomas, said that the Government’s amendments in this group were better than his, which has circumscribed the debate.

The noble Lord, Lord Marks, raised an interesting point about how the courts should deal expeditiously with parole-type matters, and I will listen with interest to what the Minister has to say on that.

--- Later in debate ---

[The Lord Bishop of Southwell and Nottingham]

My Lords, it is a pleasure to follow noble Lords—and noble and learned Lords—and to benefit from their considerable wisdom on the matter at hand. I do not wish to repeat all that has already been said, but my right reverend friend the Bishop of Gloucester has added her name to several amendments in this group. She is sadly unable to be here today, but I know that, like many other noble Lords, she is dedicated to seeing the reform of the criminal justice system, particularly in respect of our prisons, for which she is the lead bishop for the Church of England.

I will reflect briefly on Amendment 140. As has already been said, we know that many IPP prisoners are stuck in the system, and appropriate psychiatric care in the community is not in place to manage their high-support needs. It is clear to anyone who visits prisons and meets IPP prisoners that they suffer great mental distress, reportedly more so than the wider prison population. This sentence—arguably more than any other— disrupts relationships and leads to hopelessness, anxiety and alienation, as we have heard so much about. In many cases, it can be said that the sentence itself is the very cause of that mental distress, as is reported by many chaplains in our prisons.

The changes proposed through this Bill are welcome and, as we have heard, much progress has been made; but, for the sake of both the prisoners in question and the wider community, I submit that the extended aftercare arrangements proposed in Amendment 140 are needed. Like other noble Lords, I ask the Minister to think again on this important matter.

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

My Lords, it has long seemed strange that, having abolished IPP sentences during the coalition in the LASPO Act, we still have nearly 3,000 prisoners, many of whom had relatively short-term tariffs, in custody or recalled to custody many years after their tariffs have expired.

In this House and elsewhere, there is unanimity that IPPs have been and remain a stain on our justice system, and that they are an inhumane mechanism, unjustly withholding from prisoners a date of release, routinely depriving them of any hope of freedom and causing them serious mental health problems. This is a fact highlighted by the noble and learned Lords, Lord Thomas of Cwmgiedd, Lord Hope of Craighead and Lord Garnier. The IPPs were frequently in the wake of offences that were not of themselves the most serious.

This is all against a background of a Government taking strange measures, almost impossible to justify, to keep down the prison population. As the noble and learned Lord, Lord Thomas, pointed out, we have prisoners on determinate sentences being released up to 93 days early, for no good reason apart from that there is no space for them. With Operation Early Dawn, we have hearings of criminal cases being delayed to avoid using up prison space by convicting and sentencing offenders expeditiously. We have a prison building programme that even on the most sanguine projections for planning and construction cannot possibly keep pace with predicted increases in prisoner numbers.

Yet we have a Government who have already been the cause of increasing prisoner numbers—with longer prescribed sentences and legislation increasing times in custody—setting their face against doing more to relieve a significant part of the pressure by releasing IPP prisoners faster and more humanely. Certainly, they have moved some way, and I join my noble friend Lady Burt in welcoming the Government’s movement and in her call in Amendment 140, supported by the noble Baroness, Lady Fox of Buckley, and the right reverend Prelate, for much more and far better aftercare and support for these damaged prisoners who have suffered so much from IPPs. The action plan, so far as it goes, is welcome, as are the other government amendments, in which the Government have accepted the spirit of amendments moved by others throughout the passage of this Bill. I join those others, notably the noble Lord, Lord Blunkett, who has been mentioned and who has spoken, in appreciating the discussion and co-operation that we have all had with the Minister. However, one suspects that it has been despite the Minister’s best efforts that the Government have not moved far enough.

Amendment 149A, tabled by the noble and learned Lord, Lord Thomas of Cwmgiedd, and noble Lord, Lord Blunkett, and powerfully supported today by the noble Lords, Lord Moylan, Lord Carter, and others, with its requirement for an approach that embodies proportionality, is a modest amendment. Why the Government cannot accept it I cannot imagine. The noble and learned Lord’s amendment is designed to give IPP prisoners the hope that they need. The noble and learned Lord, Lord Garnier, expressed powerfully the effects of the loss of hope for IPP prisoners in the context of this amendment. If the noble and learned Lord does test the opinion of the House, we will support his amendment. I hope only that a good number of Labour Peers and Conservative Peers, in the cross-party spirit shown by the noble and learned Lord, Lord Garnier, will do the same. It would be very welcome if the Government would heed his plea to have one more think.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too acknowledge the work done by the Minister on IPP and the significant movement that there has been through the government amendments.

It is right that IPP sentences were abolished. We share the concerns that lie behind many of these amendments. We have always sought to work constructively on a cross-party basis on this issue, which is why we are supporting the government amendments to bring forward a statutory action plan. Our default position will always be, where possible, to secure the safe release of IPP prisoners. However, public safety must be at the centre of our approach. It is not possible to make assessments of public safety responsibly and confidently from the opposition position without the necessary evidence on the individual needs of these offenders. In government, the Labour Party will work at pace to make progress and will consult widely to ensure that the action plan is effective and based on the evidence available.

Government Amendment 139C, the annual report amendment, is a government concession to Amendments 141 and 142 tabled by my noble friend Lord Blunkett. It places an obligation upon the Government to report annually on the progress and rehabilitation of IPP and DPP prisoners through the enhanced work of the progression board and to outline those whom they have consulted in supporting such progress. There is clear intent of prisoner release and support and progress on licence while being monitored and advised by the scrutiny panel—currently known as the external challenge group. The Minister mentioned the members of this group. Nobody could doubt their credibility.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Report stage
Tuesday 21st May 2024 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

150: Leave out Clause 49

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

My Lords, the amendments in this group, Amendments 150 to 153, objecting to Clauses 49 to 52 standing part of the Bill, fall into two slightly different categories. The first three amendments, in my name and that of the noble Baroness, Lady Lister of Burtersett, who I am grateful to for her support, would remove the proposals in the Bill that Section 3 of the Human Rights Act be disapplied in relation to three pieces of legislation.

First, by Clause 49, the disapplication would apply to Part 2, Chapter 2 of the Crime (Sentences) Act 1997, which concerns life sentences and sentences of detention at His Majesty’s pleasure, release on licence for prisoners serving such sentences, and their release on licence, recall and removal from the UK, and will include all those amendments to be introduced by Clause 41 of this Bill. Secondly, Clause 50 would disapply Section 3 to Part 12, Chapter 6 of the Criminal Justice Act 2003, which concerns the release on licence, supervision and recall of certain fixed-term prisoners, and will include all those amendments to that Act to be introduced by Clause 42 of this Bill. Thirdly, Clause 51 would disapply Section 3 to Section 128 of the LASPO Act, or any order made under that section. That is the section which, as we have heard in debate at some length in Committee and earlier today, permits the Secretary of State to change the release test for certain prisoners, importantly including IPP prisoners, to shift the balance so that if conditions are met, an IPP prisoner must be released.

As will be familiar to the House, Section 3 of the Human Rights Act requires that:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.


The ECHR is fundamental to the protection of human rights in this country. That is and has long been an article of faith for my party and the Labour Party, which was responsible for enacting the convention as part of domestic law by the means of the Human Rights Act. Indeed, it is important for many but not all in the Conservative Party; we have all seen the fault-lines on this issue over the tenure of this Government. However, the present Secretary of State for Justice is a keen advocate for the convention.

The architecture of the Human Rights Act has been widely and, I suggest, rightly praised for striking the balance between the sovereignty of Parliament and the convention. That architecture has at its heart the combination of Section 3—the section I just read—which requires convention-compatible interpretation and application of legislation where possible, and Section 4, which provides for a court to make a “declaration of incompatibility” where a legislative provision is found to be irrevocably incompatible with the convention right. The making of such a declaration leaves it to Parliament to legislate so as to comply with the convention and remove the incompatibility.

It follows that the proposed disapplication of Section 3 represents an invitation, almost an instruction, to courts to disregard convention rights when interpreting or applying the legislation. This is not a purely academic point; in relation to IPPs, for example, the European Court of Human Rights found in the case of James, Wells and Lee v UK in 2012 that the applicants’ IPP sentences were a violation of their Article 5 rights to liberty and security because the unavailability of rehabilitative courses meant that their detention after the expiry of their tariff terms was “arbitrary”.

As the Prison Reform Trust put it, in its helpful briefing for this debate:

“The introduction of specific carve-outs from human rights for people given custodial sentences contradicts one of the fundamental principles underlying human rights—their universality and application to each and every person on the simple basis of their being human. Moreover, it is precisely in custodial institutions like prisons that human rights protections are most vital, because individuals are under the control of the state”.


These carve-outs represent an insidious threat to the effectiveness of the convention in this country and, I suggest, a stalking horse for future legislation, undermining the balance between parliamentary sovereignty and the convention that I spoke of. They should be resisted.

I am bound to say that I find it very disappointing that the Labour Party is not whipping Labour Peers to support these amendments. The Human Rights Act was one of the Labour Party’s finest achievements. For Labour Peers to be instructed to condone by abstention the disapplication of Section 3 to these provisions is a sad portent for the future.

Before closing, I turn to Amendment 153, which seeks to remove Clause 52 from the Bill. Clause 52 does not seek to disapply any part of the convention, but it seeks to skew the court’s decision-making process on the application of convention rights in a way that is underhand and unacceptable. It would provide that, in making a decision as to whether a person’s convention rights have been breached in relation to a release decision:

“The court must give the greatest possible weight to the importance of reducing the risk to the public from offenders who have”


been given prison sentences. In other words, risk reduction is to outweigh all other factors. But what does the instruction to give “the greatest possible weight” say to a judge? The answer is effectively that no other factor is to count. There is to be no careful judicial balancing exercise, because if the risk reduction factor can be outweighed in the balance, a judge cannot, by definition, give that factor “the greatest possible weight”. Judicial discretion is to be removed; judges are to be compelled to reach decisions that they would not otherwise make, because they may not judge for themselves what weight to give to competing factors. That is not acceptable.

I fully intended to divide the House on these amendments, but given the Labour Party’s decision not to support them but to abstain and the fact that it is now late, I have decided not to. Nevertheless these amendments raise an important point of principle for all those who believe in the convention.

[Baroness Lister of Burtersett (Lab)]

My Lords, I was very disappointed by the Minister’s response in Committee, so I felt that I ought to have another go in support of the noble Lord, Lord Marks of Henley-on-Thames, aided by the British Institute of Human Rights and Amnesty International, which were also very disappointed.

First, the Minister said that this clause is not about disapplying the Human Rights Act. Well, of course it is not about disapplying the whole Act—but not just Amnesty, the BIHR and the Howard League, but also the EHRC, the chair of the JCHR and the Law Society take the view that it is disapplying Section 3. It feels like one of those occasions when the Government is the only marcher in step.

The BIHR challenges a number of the Minister’s arguments—first, his reassurance that it is still possible to plead any breach of human rights in the usual way and to seek a declaration of incompatibility. It points out that the point of the Human Rights Act was to bring rights home and provide an accessible, practical and immediate remedy. The excision of Section 3 makes access to human rights harder. He said it was a “difficult section to apply”. The BIHR argues the opposite, pointing out that it is used by lay front-line workers who see it as having given them a clear legal framework for arguing for the protection of people’s rights.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, that is not by any means the Government’s position; nor can that inference be drawn. The Government’s position on this clause is, as I understand it, in effect, that which the noble Lord himself is reported as expressing to the independent review on human rights because Section 3 requires the judge to perform a remedial function which legislation does not on its proper construction conform to convention rights. Such a role is inappropriate under our constitution and unnecessary because Section 4 provides an effective means by which Ministers and Parliament can amend the legislation. That is the Government’s position on this provision.

So, totally hypothetically, if anything in the legislation from which Section 3 has been disapplied was found to be incompatible, it would be for the court to make a declaration of incompatibility under Section 4. It would then be up to Parliament to decide how to rectify it, rather than the intermediate rewriting process of the courts. It does not remove or limit convention rights. It is simply saying that in this case that is the right balance between Parliament and the courts. That is the Government’s position on that.

This group of amendments also seeks to remove Clause 52, which sets out that, when considering a challenge, the court must give the greatest possible weight to the importance of reducing risk to the public from the offender. Of course, the courts already consider risk to the public. This clause does not mean that public protection will be the exclusive or only factor to be considered. The matter will be up to the judges, who are very capable of doing their independent part in construing the legislation. What the clause does is to ensure that due weight is given to the important consideration of public protection.

So, on behalf of the Government, I beg to move that Clauses 49 to 52 stand part of the Bill.

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

My Lords, I beg leave to withdraw Amendment 150.

Amendment 150 withdrawn.

--- Later in debate ---

[Lord Pannick (CB)]

My Lords, I need some guidance. Today’s list indicates that in this group are contained the government amendments to Clauses 55 and 56, which are the amendments relating to marriage and civil partnership. Today’s list also indicates, in the next group, that we have already debated my opposition and that of other noble Lords to Clauses 55 and 56. I am very happy to delay my comments on Clauses 55 and 56 until the Minister deals with them, but I thought I should just mention where we are.

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

If I may help advance this, our understanding is that the Clauses 55 and 56 stand-part debates are the subject of group 6. I do not know whether that is the Minister’s understanding.

--- Later in debate ---

[Lord Meston (CB)]

My Lords, I associate myself with those remarks. I stayed late, expecting to debate the question of the marriage of long-term prisoners, and was a bit concerned to see that the amendment from the noble Lord, Lord Pannick, appeared to be described as “already debated”, which I do not think it can possibly have been.

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

My Lords, I will try to help once again, because I have in front of me a copy of the groupings that were sent out. The noble Lords, Lord Pannick and Lord Meston, are absolutely right that some of the consequential government amendments have been put into group 5, but group 6 certainly includes—as we were told by the Government Whips’ Office—Amendment 165ZDA and Amendment 156ZI, which is the prisoner marriage substantive stand-part amendment. If we could proceed, that would be most convenient.

[Lord Pannick (CB)]

I am very happy to proceed on the basis that group 6 will deal with these matters.

--- Later in debate ---

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

My Lords, I am grateful to the Minister for explaining his amendments, which accept a number of points made in Committee. On the point raised by the noble and learned Lord, Lord Thomas, about the position of the chair of the Parole Board—he raised this with me a little earlier, so I have not considered it in great detail— I am bound to say that I take the view that he is exactly right: you cannot possibly proceed with a selection procedure and take it to a conclusion when you have completely changed the job description. I hope the Government will take that point away.

I will speak to my Amendment 156ZAA, which remains on the Marshalled List and remains unresolved. It is intended to reduce the trauma caused to bereaved families and victims by repeated unmeritorious applications to the Parole Board for parole by the perpetrators of crimes who are serving life sentences. The restriction of such applications would be implemented without in any way diminishing access to the Parole Board for applicants who have a genuine reason for making, after an earlier refusal, further applications that may, in the right circumstances, be made as little as a year after a refusal. I am grateful to the London Victims’ Commissioner for her help with this amendment.

The present provision in Section 28(7)(b) of the Crime (Sentences) Act 1997 provides that a prisoner serving a life sentence may not require the Secretary of State to refer the case to the Parole Board until after they have completed their minimum tariff and after the lapse of two years after any previous reference was completed. However, in practice, the Parole Board can, and frequently does, consider parole more often than every two years. Indeed, in the case of Chris Cave, stabbed to death at the age of 17 in 2003, there have been nine parole hearings after the earliest release date. His mother describes the repeated trauma of facing those parole hearings for her son’s murderer as torturing and as sometimes allowing only six months’ respite before the family has to prepare psychologically for the next parole hearing and prepare further victim impact statements.

This amendment would enable the Parole Board to direct a waiting time of between 12 months and four years before a further reference could be made—so the Parole Board could make the direction. However, if there were a direction for a waiting period of more than two years, the Parole Board would have to have a reasonable belief that the prisoner’s release prospects were unlikely to change over the period, and that decision would be reviewable.

The parole process is lengthy and is a potential time of stress for bereaved families and for victims and their families. Although such victims and bereaved families appreciate the opportunity to make impact statements and have them considered by the Parole Board, the strain of making them often is considerable and can often be retraumatising. This amendment is primarily aimed at preventing victims being subjected to that frequent stress when it is clear that nothing has changed.

We have considered concerns, which the Minister raised in Committee, that the rights of prisoners to reviews of their detention under Article 5(4) of the convention might be infringed. But we are satisfied that the flexible provisions in this amendment, including the review provision, are compliant with the convention and strike a fair balance between the rights of prisoners and those of their victims and their families.

At the same time as making this relatively modest change, we invite the Minister to say a bit more about what extra support can be offered through a perpetrator’s parole process to make that process more manageable and less frightening for the victims and bereaved families. With more public parole hearings and the trialling of victims’ attendance at closed hearings expected, the need for that support—and for sufficient resources to be allocated to providing it—is increasingly important.

The provision of further information to families is also very important and we would be grateful if the Minister would say something about the future provision of information to victims and bereaved families, either through the victim contact scheme or otherwise. Better information about the parole process is important, but such information is also needed about moves of prisoners to open conditions and their progress towards rehabilitation. That information would make the perpetrators’ process towards release much less painful for the families of their victims. I look forward to hearing what the Minister has to say about that.

[Baroness Thornton (Lab)]

My Lords, I am very glad that we have managed to sort out which are the right amendments in the right place through a collective effort across your Lordships’ House.

Noble Lords will recall a discussion on this matter in Committee, which is presumably what has led to these government amendments. Like the noble and learned Lord, Lord Thomas, I welcome them, but his questions about the appointments process are absolutely legitimate and feed into what we said in Committee—that the Government need to recognise the independence of the Parole Board and understand the risks of politicisation. The original Bill seemed to be government proposals in search of an actual problem to solve. The decision on the composition of the board should be a decision for the board.

The 2019 Ministry of Justice review of the Parole Board Rules stated:

“Restrictions on which panel members can hear particular types of case have gradually been lifted over time … to allow greater flexibility and timeliness in listing the right cases for the right panel members and we do not wish to undo the improvements this has achieved”.


That was echoed by Martin Jones, the chief executive of the Parole Board, when he gave evidence to the Commons committee.

So we are in a better place than we were at the beginning of this Bill, but the issues raised by the noble Lord, Lord Marks, are very legitimate and require the Government’s attention and an answer. The noble Lord, Lord Jackson, raised some very interesting points about how the board operates and its accessibility. That is a difficult issue, because it sometimes deals with sensitive and controversial matters. I will be interested to hear what the Minister has to say about that, because its decisions by their nature are sensitive and controversial and the Government should keep the new additional power in sub-paragraph (2C) inserted by Clause 54 under review. Removing the chair because a decision in an individual case is unpopular, as the noble and learned Lord, Lord Thomas, said, would influence the panel’s decisions and I think is not the way the committee and the House wish to see this go.

Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

3rd reading
Thursday 23rd May 2024 Lords Chamber

[Baroness Campbell of Surbiton (CB)]

My Lords, I will be brief because I know that time is of the essence. I pay tribute to the noble Baroness, Lady Brinton, for her sterling work on this Bill. She has given great comfort and strength, as well as enormous amounts of information, to the infected blood community, so that they can keep up with what we have been doing in this House up until today. She is right that there is now confusion in the community.

At the end of a very long day on Monday, I had thought that I might just get a day off, but by Tuesday my phone was ringing off the hook, and I became a helpline to many in the infected blood community who have the concerns that the noble Baroness, Lady Brinton, just described. I urge the Minister to give a little more clarity, if he can today, so that we can go back and continue to give reassurances to a community that has been campaigning and working towards this week for probably 35 years. I thank the Minister for his open door, because we have been going in and out of it for weeks. I, for one, really appreciate his support and help.

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

My Lords, I add the thanks of these Benches to the Ministers—the noble Earl, Lord Howe, and the noble and learned Lord, Lord Bellamy—and the Bill team as a whole for the way they have handled the Bill. It has been a real example of co-operation and cross-party help, leading to a number of amendments, not only on this particular issue but on all the issues that we have faced. We have not always reached agreement and there have been Divisions; nevertheless, I think everybody here agrees that the Bill will leave this House much improved.

I also very much wish to associate these Benches with everything that has been said by my noble friend Lady Brinton, speaking from these Benches, and the noble Baroness, Lady Campbell of Surbiton. I pay tribute to the noble Earl for the way he has handled the infected blood issue, particularly by meeting with the community and noble Lords in a way that has been utterly helpful and completely sympathetic. We all know that it has devoured an enormous amount of his time, and we all respect and admire the care he has given to handling this issue. I hope that he will be able to give the reassurance today—to my noble friend Lady Brinton, the noble Baroness, Lady Campbell, and the House—that is sought by the infected blood community; it would be a great relief to them.

Many of us had telephone calls yesterday in which extreme concern was expressed about what was happening in view of the calling of the general election, the fear that the Bill might be lost and that further improvements or reassurance on the scheme might not be possible. I add that it would have been a crying shame if this Bill had been lost and had not got through the wash-up. That seemed a real problem yesterday; there was concern that it would happen. It has got through, and for that we are extremely grateful.

It is also a great shame that the Arbitration Bill and the Litigation Funding Agreements (Enforceability) Bill look as if they are under threat. That is ridiculous. The Arbitration Bill is a Law Commission Bill. It has to start in the House of Lords, it went through a long Special Public Bill Committee procedure, ably chaired by the noble and learned Lord, Lord Thomas, and there is no opposition to it. Similarly, the Litigation Funding Agreements (Enforceability) Bill has no opposition. These are two Bills important to the British economy because of the contribution that the legal services sector makes to it as a whole. For the progress of those Bills to Royal Assent before Prorogation to be stymied by an absurd convention that, if it has not already been introduced in the other House, a Bill will necessarily fail, is wrong. In those circumstances, I profoundly hope that the Whips in the Commons can come to an agreement. As I understand it, there is all-round agreement in the Lords that these Bills should go through. They must be taken through, just as this Bill has been taken through.

We are very grateful that this Bill has gone through. However, if the other Bills that are non-controversial and agreed cannot get through, the procedure on the wash-up needs a radical shake-up.

[Baroness Thornton (Lab)]

My Lords, the noble Lord, Lord Marks, has absolutely nailed it, and I absolutely agree with him about the Arbitration Bill, although my pay grade is much too low to do anything about any of those things.

This is one of those times when we are allowed to say “Thank you” and “Didn’t we do well?” Thank goodness we have this Bill and that it did not fall with the call of the general election. Between us in this House, we have improved the deal for victims across the country. We have given powers to our Victims’ Commissioner which she needs to do her job. I thank everybody we have worked with: my noble friend Lord Ponsonby, who is of course in court today—I do not think he has done anything wrong—the noble Baroness, Lady Brinton, the noble Lord, Lord Marks, and the ministerial team. The noble and learned Lord, Lord Bellamy, has been a model of what you need in a Minister in your Lordships’ House in that he is always prepared to listen, to discuss and to hear what might be needed, and when something is just, he seems to be able to act on it. You cannot ask for much more than that. I thank the Bill team, because I know what hard work it is to be a Bill team. I also thank my own people in our office, who have been backing us up on this Bill. I am just very glad that it has made it through wash-up.