Public Advocate Bill [HL]

Lord Wills Excerpts

Friday 29th January 2016 Lords Chamber

Moved by

[Lord Wills]

That the Bill be read a second time.

[Lord Wills (Lab)]

My Lords, this Bill arises out of my experience as a Minister devising the Hillsborough Independent Panel that was set up by the Government of Gordon Brown towards the end of his premiership. This was a more complicated and difficult process than perhaps the current public record suggests. The problems I encountered during that process made me reflect on the wider implications for public policy in the case of large public disasters such as Hillsborough, and this Bill is the result.

I want to place on record my gratitude to Ministers in the Ministry of Justice, the Justice Secretary, the Parliamentary Under-Secretary in the other place, Caroline Dinenage, and the Minister of State here, the noble Lord, Lord Faulks, for the courtesy and consideration they have given to my representations to them about the Bill. I am also grateful to their officials, who have been generous with their time in discussing details of the Bill with me. Above all, I want to pay tribute again to the families bereaved in the Hillsborough disaster in 1989, who campaigned for so long with such dignity and persistence in the midst of their grief until, at last, they have begun to see the results of their campaign for justice. Without their efforts, the panel would never have been established, and without their efforts, it would never have achieved what it has.

In 2009, I met representatives of those families on several occasions to discuss with them what outcomes might satisfy them. One message that came through over and over again was that they wanted to find a way to prevent other similarly bereaved families suffering and having to endure in the way they had suffered and endured for 20 years. This Bill is designed to do just that.

This is not the time to rehearse the history of those years between the disaster and the setting up of the panel, but that history illustrates the extent to which bereaved families and injured survivors can feel alienated from the official process for responding to such public disasters and how lack of transparency is one of the key reasons for that. It revealed the extent to which the experience and responses of bereaved families and injured survivors can illuminate what happens in such disasters, and why, and reveal flaws in the official response to them. That all this is now in the public domain is a tribute to the outstanding work done by the members of the Hillsborough Independent Panel, so ably and compassionately chaired by the then Bishop of Liverpool, who many noble Lords will remember from his time in your Lordships’ House, with powerful support from Home Office officials. The bereaved families were all well served by their labours. I should also pay tribute to the current Prime Minister and the current Home Secretary who continued to support a panel set up by a previous Labour Government and followed through on its report.

The fact that finally the families bereaved at Hillsborough have been able to achieve much of what they campaigned for should not lead to any complacency about the systems currently in place to respond to such public disasters. When the full record of what happened after the Hillsborough disaster is eventually made public it will show, I believe, how the successful outcome of the Hillsborough Independent Panel was the result of a series of fortunate coincidences. There was nothing inevitable about it. This can be seen from, among other things, the fact that the intense difficulties experienced by those bereaved at Hillsborough have been experienced by those bereaved in other public disasters including, for example, the Lockerbie terrorist atrocity, the sinking of the “Marchioness” in the Thames and the wreck of the “Derbyshire” in the South China Sea. Those bereaved families have not all made the progress the Hillsborough families have eventually been able to make.

Sadly, we must assume that such tragedies involving large-scale loss of life will occur again; they always have, and they always will. So this Bill seeks to provide a better way of responding to them on behalf of the bereaved and the injured survivors. It does so on the basis that there is an identifiable pattern to the process that follows a public disaster such as those I have mentioned. The nature and extent of a public disaster very often demands a response from government. The questions raised are almost always the same: who is to blame and what can be done to stop it happening again? Finding the answers does not put the bereaved families anywhere near the centre of that process. The state naturally assumes for itself the dispensation of justice, and the needs and wishes of victims, including the bereaved, are not paramount. As the process unfolds, there is an inevitable tendency for those in official positions who fear that they might be blamed in some way for what happened to close ranks and skew the results of any investigation, as they are so often in a position to do. The report of the Hillsborough Independent Panel graphically illustrated this in the way that it has exposed the behaviour of the police.

Yet the interests of justice and good government would not necessarily be best delivered by removing the state altogether from the process of responding to public disasters. The challenge, therefore, is to strike a better balance between the impartial discharge of justice and good government and protecting the interests and feelings of the bereaved and injured survivors. The Hillsborough Independent Panel pointed the way towards how that might be done, and the Bill seeks to learn those lessons. The first, in my view, was the benefit of the panel review system, which was able to circumvent the constraints of data protection legislation and so was able to reveal new facts. Then there was the importance of the trust placed in that panel by the bereaved and the confidence that they felt the panel was working in their interests. Next was the importance of the bereaved being able to articulate their views collectively. Importantly, the process revealed the problems caused by the absence of any consistent advocate for the bereaved at the heart of government to overcome any interests working against them. Lastly, I have little doubt that it was the extraordinary persistence and dignity and solidarity of the Hillsborough families’ campaign that generated the momentum that led to the panel and its achievements. This will not necessarily be replicable in similar situations in future.

I draw three conclusions from that. The first is the importance of transparency. Without this, the bereaved will never achieve anything approaching closure, and without it it is difficult, and often impossible, for the public policy lessons to be learnt and necessary reforms made. The second is the creation of an institutionalised, independent and adequately resourced advocate for the bereaved. Those who are bereaved in future public disasters should not have to rely on ad hoc remedies extracted over such a long period, such as those that in the end delivered some progress for those bereaved at Hillsborough. The last is the need, as I said, to organise some collective expression of the views of the bereaved.

Those conclusions underpin the Bill, but in my view they do not suggest replacing the existing system of responding to public disasters, such as the coronial system and public inquiries. They clearly still have a critical role to play, to ensure that any overarching public interest is protected. Rather, the Hillsborough experience suggests augmenting the system to protect better the interests of the bereaved. The Bill proposes the establishment of an independent and adequately resourced advocate for those bereaved in public disasters and injured survivors. The constitutional position for such a public advocate is based on what I believe to be the successful model of the Independent Reviewer of Terrorism Legislation, and would have a similar relationship to central government. The unpredictable and ephemeral nature of the demands on such an advocate would, I think, preclude any permanent establishment. However, to ensure that such an advocate was adequately resourced to deal with whatever demands were placed on them, they would be located within a government department—the Ministry of Justice would appear to be an obvious candidate—with the ability to call on the resources of that department as required.

The Bill stipulates, crucially, that two conditions would need to be satisfied before the advocate was required to act. The first would be that in the advocate’s opinion an event had occurred that had led to a large-scale loss of life and involved serious health and safety issues, a failure of regulation or other events of serious concern. In other words, the advocate would not be required to act in all circumstances where there was a large-scale loss of life. Secondly, to act, the advocate must have been asked to do so by 50% plus one or more of the total of representatives of those deceased due to the event and any injured survivors of it. In effect, the bereaved and any injured survivors would have a veto on the advocate’s role coming into effect.

When those two conditions had been satisfied, the public advocate would be required to act as a representative for the interests of the bereaved and survivors, and act as adviser and guide for them and any other representatives that they might have during any police investigation into the disaster and during the inquest. Following any such police investigation and the inquest, on request by a majority of the legitimate representatives of the victims and in consultation with them, the advocate would set up a panel, consulting the bereaved on its composition, to be in the position of data controller, so replicating the position of the Hillsborough Independent Panel. The panel would review all relevant documentation, which would be made available to them on request from all responsible agencies, and report on it—again, replicating the position of the Hillsborough Independent Panel. In effect, the Bill intends to give the bereaved a veto on the establishment of such a panel and its composition.

The Bill then sets out the conditions that would govern the disclosure of information to an advocate’s panel, and these are based on the safeguards in the Freedom of Information Act. I have incorporated them into the Bill because I believe that the Act is generally regarded as successful legislation, notwithstanding the Government’s current commission looking into reforms to it. Even that commission, which is widely regarded as hostile to the Act, seems, if media reports are to believed, to be considering only relatively minor amendments to it, and therefore it seems sensible to rely on its tried and tested provisions.

Lastly, the Bill contains provisions for the advocate to send to the Lord Chancellor a report on an annual basis summarising its work and the conclusion of support relating to a particular event, and at any other time when it identifies a need so to do, and the Lord Chancellor would lay before Parliament a copy of any reports received from the advocate within 15 days of their receipt. That provision is designed to ensure that Parliament retained oversight of the work of the advocate, and represents a further safeguard of the interests of the bereaved and injured survivors.

Since the Hillsborough disaster there have been significant improvements in the coronial system, set in train 12 years ago by my noble friend Lord Blunkett, and I am very pleased that he is speaking today. He remarked then on the importance of,

“providing a high quality service to the public at large and particularly to the bereaved, recognising their special needs and the input they can make to the death investigation process”.

Moreover, there is now the precedent established by the Hillsborough panel report and the subsequent inquest, which I hope will mean that in future bereaved families will not have to campaign as the Hillsborough families had to do for so long. However, the Bill is still necessary, because it gives the bereaved and injured survivors greater control over the process than they currently have, for all the welcome reforms to the coronial system and all the precedents established by the Hillsborough Independent Panel. Rather than relying on ad hoc responses by government, victims, the bereaved and injured survivors would have a right to support and transparency.

My drafting of the Bill could well be improved, and it certainly makes a number of subjective judgments which may well have to be revisited—for example, the trigger mechanism which enables the public advocate to act, as I recognise that many bereaved and injured survivors might well not want to take part in a continuing process and their feelings must be respected. Another example is the definition of who should qualify as bereaved or a representative of the deceased, which may well also need to be revisited.

However, these are details which the Government, with all the expert resources at their disposal, can easily address and improve. Therefore I hope that today the Minister will feel able at least to express support for the principle that the Bill seeks to establish, of approving support for those bereaved by public disasters and injured survivors and giving greater powers to them. I hope that he can also suggest today a way to make progress on entrenching those principles in public policy. I beg to move.

--- Later in debate ---

[Lord Wills]

My Lords, I am extremely grateful to all noble Lords who have taken part in this debate. It has been relatively short, but it could make a profound difference to all those who in the future, out of a clear blue sky, find their lives transformed by a terrible public tragedy.

The noble Lord, Lord McNally—who I regard as my noble friend whatever the technical position is—made a powerful statement from his own experience about why the Bill is needed. I am grateful to him for his words of support, as I am to my noble friend Lord Blunkett, who brings to this a wealth of experience from the heart of Government, as well as personal experience as the MP for many years representing the constituency containing the Hillsborough stadium.

My noble friend Lord Wood, who was working at the heart of the Gordon Brown Government when the Hillsborough Independent Panel was set up, drew attention again to the need for this Bill and gave the telling example of Aberfan, which I remember as a young boy. I am also grateful to my noble friend Lord Bach, who expressed support from the Front Bench. His idea of putting the independence of the advocate in the Bill is excellent and I should like to adopt it going forward. We will obviously discuss the other issue he raised in due course. So I am grateful for all the support I have received from all noble Lords, who spoke with all their authority and years of experience, and I am glad that the Government have listened to what they had to say.

I also express my gratitude to the Minister for his characteristically thoughtful, sympathetic and thorough approach to all the issues raised by the Bill. Of course, I did not expect him to commit the Government to wholeheartedly adopt the Bill today, but his cautious words pointing towards a possible way forward are perhaps the most that I could have expected. I am grateful for them and I certainly will—with what the noble Lord, Lord McNally, referred to as my terrier-like capacity—pursue him for the meeting that he kindly offered. In due course, I hasten to add.

Of course, I recognise all the improvements that the Minister described. As he said, the situation is significantly different from what it was 20 to 25 years ago. However, there is an issue that I would like to explore with him further, perhaps in Committee, because there is a fundamental distinction between what he has described as the improvements that are taking place and what I think are the improvements the Bill would bring about. It is to do with the independence of the advocate. The changes that he has described are still in the gift of the Government and the institutions of the state. I think it is important because all the experience of disasters that other noble Lords have described more powerfully than I shows how easy it is for the bereaved and the families of injured survivors to feel excluded by the process, no matter how well meaning it is or what is set out in all the guidance, and no matter what the experience and how diligent, thoughtful and empathetic those agents of the state are. Nevertheless, for all the reasons that have been set out today, it is sometimes very easy for families to feel excluded. Having someone who is independently advocating their cause and, crucially, doing so independently of the state and seeking to bring about the transparency that is so important in these cases, is the difference between the position that the noble Lord has set out and the position in the Bill.

I am sure that we will have opportunities to explore this further and I am grateful for the offer of a meeting, which as I say I will take up, so perhaps the issues can be considered further in Committee. In the mean time, while again expressing my gratitude to all noble Lords who have taken part today and to the Minister, I now ask your Lordships’ House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.