Victims and Prisoners Bill

Lord Ponsonby of Shulbrede Excerpts

Committee stage
Tuesday 13th February 2024 Lords Chamber

[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.

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[Lord Hope of Craighead (CB)]

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

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

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

My amendment seeks to address the phrase

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

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

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

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

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

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

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

“as the advocate considers appropriate”.

Clause 33(4) provides that such support may include

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

on their behalf, and

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

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

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

“such matters as the advocate considers relevant”

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

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

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

[Lord Ponsonby of Shulbrede (Lab)]

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

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


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

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

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


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

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

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

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Moved by

[Lord Ponsonby of Shulbrede]

130: Clause 33, page 32, line 36, leave out subsection (6) and insert—
“(6) Where the advocate provides support to victims under the age of 18, the advocate must conduct or refer to a needs assessment of such persons to determine whether they have capacity to consent to provision of direct support from the advocate, or whether it would be more appropriate to provide indirect support via other persons assessed to represent their best interests.(6A) Before providing indirect support detailed in subsection (3), an advocate must —(a) ascertain the views of the victim under 18 on who is best placed to represent their interests, and(b) have regard to any views so ascertained.”Member’s explanatory statement
This amendment would ensure that a child’s capacity to make decisions for themselves is taken into account when determining whether the Independent Public Advocate engages directly with them or not. Where it is more appropriate to engage with a representative on a child’s behalf, a child’s views and preferences on who is best place must be taken into account.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I put my name to this amendment. It was tabled by the noble Lord, Lord Hampton, who is unable to be with us.

Amendment 130 seeks to ensure that a child’s capacity to make decisions for themselves is taken into account when determining whether or not the independent public advocate engages directly with them. Where it is more appropriate to engage with a representative on a child’s behalf, a child’s views and preferences on who is best placed for that should be taken into account.

The amendment follows the Children’s Commissioner’s advice for children’s eligibility for direct communication with their IPA, and from criminal justice agencies when making a victim information request. It should follow legal precedent, which means taking into account a child’s capacity and competence to take decisions. The commissioner suggests that the Bill should also establish processes for when it may not be appropriate for a parent to receive communication on behalf of their child.

Children must have agency when engaging with the criminal justice system, including around victim information requests and when engaging with the independent public advocate. This includes giving competent children the ability to indicate who they would like to receive communications from, including opting for direct communication, where this is judged to be safe and appropriate. This process should be consistently embedded as part of a thorough multiagency needs assessment of the child at the earliest opportunity.

I would like to add a different perspective to my amendment regarding my role as a family magistrate. We have, in recent years, moved further towards hearing directly from children when they are involved in particular family cases. We hear children’s views on which parent they should reside with, or whether they should be taken away from their parents. During my time in the family court system, which has been about 10 years, there has been greater trust in hearing directly from the children themselves. We should be very cautious about underestimating what they want to say to the court.

I have had direct and extremely moving experience of children wanting to have their say. They have had their say and they are absolutely clear that their views will be taken into account. However, their views will not necessarily be determinative; that is a decision for the court itself. I add that as an extra perspective on this amendment. The underlying purpose of the amendment is to make sure that the child victims’ views are properly taken into account. I beg to move.

[Baroness Brinton (LD)]

My Lords, I thank the noble Lord, Lord Ponsonby, for his introduction to this important amendment. I have to say that I was somewhat shocked when I first read the Bill. In Clause 33(6), it says:

“Where the advocate provides support to victims under the age of 18, the advocate may do so only by providing support to such persons as the advocate considers represent those victims”.


As a teacher, the noble Lord, Lord Hampton, who submitted this amendment, understands the vital issue of whether a child or young person—as a victim of a major incident—can have capacity to consent to the provision of direct support. To expect an advocate to make a decision, by passing it on to someone else to represent them, even if it is a parent—it may not always a parent, for reasons I will come to—without checking the child’s capacity or their interests and understanding is just plain wrong.

The example I want to highlight—I have chosen another non-criminal one, deliberately—is the aftermath of the Indian Ocean tsunami in 2004. Many children and young people were separated by the tsunami from their families, with no knowledge of who lived, died or who had been injured, and that included a number of British children. We know, from accounts at the time, that older siblings had to take on the care of and responsibility for the younger ones and for making contact and communicating with the British consul.

I cite this example because the issue of capacity and consent in those early days was vital, but in the longer term it would have been really helpful for those children and young people in their recovery to have been party to sensitive discussions about what had happened. There was mention in an earlier grouping about how one registers the death, and in this example there might have been important differential cultural practices in handling deaths and children might be the ones who can talk about what they want and what their family practice is without, for example, a British consul having to make that decision. I think one of the worst things an advocate or a Government could do would be just to impose someone to represent their interests without gaging their capacity first.

However, this does not just happen in criminal courts, and I am really grateful to the noble Lord, Lord Ponsonby, for citing the family court approach at the moment. We know that family courts often have to consider Gillick competency when hearing from children and young people about their own future. It is also commonplace in children’s social care and education and, above all, in health and about treatment. The CQC has a very helpful guide on the internet called Brief Guide: Capacity and Competence to Consent in Under 18s that sets out exactly what professionals need to consider. I am not suggesting that the CQC briefing or the rules that it uses should be adopted in whole, because issues about treatment are very different where somebody is acting as an advocate or having some parental responsibility. But large sectors of our public system—whether it is health, education or the courts—already use, and are trained to use, competency and consent. They understand when it needs to move to the area that the noble Lord, Lord Ponsonby, mentioned, where a voice is heard but a decision is not necessarily made on the child’s view. Clause 33(6) cuts that out completely, which seems to be totally extraordinary.

I look forward to hearing from the Minister on why it was there and whether there would be some possibility of negotiating something that reflects the actual practice in our courts and education and health systems for children at the moment.

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[Lord Roborough (Con)]

The noble Baroness obviously makes a good point, and this is a complex and sensitive area. We are to some extent relying on the competence that we clearly expect to see from independent public advocates to make the right decisions in what will be varied situations. We think it would be more appropriate and flexible to address this in guidance.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the noble Baroness, Lady Brinton. As she persuasively said, there are many other areas where public bodies take children’s views into account. She went through them—health, education, social services and the rest—and I gave my own particular example. The gist of the noble Lord’s argument was that it is not for the IPAs to undertake this role, that there are other ways of making these assessments and that how that happens in practice would be addressed in guidance. I will consider that answer and see whether we want to take this further, because we are trying to make victims—in this case child victims—as explicitly supported in the Bill as possible. I will consider whether a further amendment is appropriate.

My central point is that, in my experience, agencies over the last 40 years, let us say—the time of my adulthood—have consistently underestimated the capacity of children to engage in difficult issues. This needs to be handled sensitively, it needs to be managed and it needs to be clear that it is the adults who are making the decisions, but listening to children in a direct way is a good thing to do, both for the children and for the adults making the decisions, and that is what these amendments seek to achieve. Having said that, I beg leave to withdraw the amendment.

Amendment 130 withdrawn.