Victims and Prisoners Bill

Lord Wills Excerpts

Report stage
Tuesday 30th April 2024 Lords Chamber

Moved by

[Lord Wills]

102: Clause 28, page 29, line 10, at end insert “or has occurred before that date, provided that serious harm to the victims is ongoing after this section comes into force,”

[Lord Wills (Lab)]

My Lords, I shall combine my remarks on Amendment 102 with those on Amendments 103, 105 and 106.

Amendments 102, 103 and 105 seek to remove an unfair and irrational restriction on the role of the independent public advocate. I spoke in Committee at some length about how my original conception of this position in my Private Member’s Bill was driven by the pressing need for greater support and agency for those have been failed by the state and by public authorities in major incidents. Those who can avail themselves of the services of the advocate must include those for whom harm continues after a major incident, even though the major incident occurred before the passage of the Act.

Can there really be any serious justification for excluding, for example, the victims of contaminated blood transfusions and the postmasters whose lives were wrecked and continue to be wrecked by the Horizon scandal—people still struggling with the consequences of those failures by the state and by public authorities, even though the failures occurred before now?

I would be grateful if, in his response, the Minister would address this question directly: what justification is there to restrict the role of the advocate to exclude those such as the victims of contaminated blood transfusions? These amendments would rectify this specific problem in the current draft of the Bill.

In asking the Minister to respond to that question, I should perhaps have preceded my remarks by thanking him for the great generosity of time that he has given me, with his officials—to whom I am also extremely grateful—in discussing all the elements of this part of the Bill. He has gone over and above the call of duty. That I am one of many speakers thanking him for that shows the extent of this House’s debt to him and his officials in the progress of the Bill.

Amendment 106 is a relatively minor amendment but, after two Private Member’s Bills, it occurred to me that we perhaps should be more careful about how we define those who might benefit from the services of the of an independent public advocate. What constitutes a “close family member” in the modern world? Fifty or 100 years ago, the answer would have been common sense, but it is not any more. Living arrangements and relationships are much more various than they ever used to be. “Close” and “family” are, in effects, often disputable terms, and the current draft of the Bill is perhaps purposefully vague. For example, who will decide whether a parent estranged from their partner and who is no longer responsible for the upbringing of a child victim counts as a close family member? What happens if the person in question disputes any exclusion from the services of the advocate? If we at all can, we should try to head off such arguments beforehand, because they would only compound the grief and trauma suffered by many in the aftermath of a major incident.

This amendment seeks to avoid that, although it is, in essence, probing. If the Government have a better formulation, I would be happy to consider it, but it seeks to do so by introducing the specific definitions that have been derived from the intestacy provisions.

Amendment 106A tries to ensure that the post is implemented with proper timeliness. In Committee, I pointed out that it has been nearly seven years since the creation of an independent public advocate featured in the 2017 Queen’s Speech. The amendment seeks to remove any further possibility that the Government will unnecessarily delay the implementation of this post. In his response in Committee, the Minister, the noble Earl, Lord Howe, rightly pointed out the need to observe due process in public appointments, so the amendment has been tweaked to take better account of that than my previous one.

In doing so, I had regard to the Governance Code on Public Appointments. Among other things, the code says that appointments should be completed

“within three months of a competition closing”.

In 2019, the Commissioner for Public Appointments found that the Ministry of Justice, where ministerial responsibility for the independent public advocate will reside, completed only 18% of appointments within that three-month target. Only the Home Office and BEIS had worse figures. To show that these figures are achievable, that compares to 100% of appointments by His Majesty’s Treasury and 76.7% by NHSI. Of course, the Ministry of Justice’s performance might have been transformed in the last five years but, in any event, the six-month period stipulated in this amendment should be ample time for the department to appoint the first independent public advocate, if it fulfils its duties in the way that the Commissioner for Public Appointments expects. If the Minister disagrees, I would be grateful if he could explain in detail why. This amendment is simply a lever to ensure compliance with the code of governance.

I now turn briefly to Amendment 110ZA. I spoke to this in Committee; I have tabled it again because, as it stands, the Bill still appears to permit the Secretary of State to appoint the independent public advocate but deprive them of the means to exercise their functions. I cannot believe that that is what the Government intend, but in any event this amendment will prevent any such travestying of the position.

Finally in this group, I come to Amendment 119AA; this amendment is intended to replace Amendment 108 in the Marshalled List. I spoke at some length in Committee, again, about the need to provide for some version of the Hillsborough Independent Panel to be accommodated in this Bill. This amendment attempts to do just that. I do not intend to rehearse again all of the arguments I made in Committee, but I remind the Minister of the advantages of such a provision, in terms of saving the taxpayer potentially hundreds of millions of pounds over the lifetime of a Parliament, and helping victims and the bereaved towards a more timely closure of their grief and trauma. The prolonged processes embedded, for example, in public inquiries only increase their suffering. I should be grateful if the Minister could indicate in his response whether the Government truly understand the crucial imperative of timeliness in fact-finding after a major incident, and how important that is for victims and the bereaved. How can it be acceptable to make them wait year after year, sometimes decade after decade, to find out what happened to their loved ones, and to understand why they have suffered such loss? Such delays only compound grief and trauma. I beg to move.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I return to speak very briefly to Amendment 109B, to deal with the position of Wales. In Committee, I introduced an amendment to require the Secretary of State and Lord Chancellor, when appointing an independent advocate, to secure the consent of the Welsh Ministers. This is an area where it is common ground that there is devolution. I am grateful to say that the Government have agreed that there should be consultation, but they refuse to agree consent.

I put this down initially because one of the ways to make a union strong is to have a proper dialogue. Now, there are some areas where consultation has to be required by statute. Normally, one would expect that in areas where there is an overlap in competence, there would be consultation, but it is right we put a statutory duty in to that effect. However, it seems to me wholly extraordinary—and I am pretty certain it has nothing to do with the Ministry of Justice— that they refuse to agree to the consent of the Welsh Ministers.

Now, noble Lords will all know that, when looking for a lawyer, there is normally quite a good choice. In my experience, having been involved on a number of occasions, you can normally have a discussion about A or B, and you agree on C. It seems to me totally extraordinary, if we are to live in a union that works, that the Government in Westminster have to say, “No, those people in Cardiff just have to be consulted; we don’t have to get their consent”. Is this any way to run a union? The answer is obviously not, and I am sure that this does not come from the Ministry of Justice—in this Bill, the Lord Chancellor and the Minister have been most sensible in what they have put forward. But I deplore that bit of the Government that simply cannot understand that going through the courtesy of discussing things and obtaining consent is the better way to run a union.

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On proposed new subsection (2), in the Government’s view it is something of a contradiction in terms to require a non-statutory inquiry to have statutory powers. This is potentially a major change in the structure of public inquiries and, in the Government’s view, it should not slip through by a sidewind. I hope I have covered most things.

[Lord Wills (Lab)]

I am extremely grateful, as always, to the Minister for that thorough response to all my points. We made a little progress in Committee, for which I am grateful, as I am for the little progress we have made today. I am grateful to the Minister for the open way he has engaged with all these serious points. He will not be surprised that I am disappointed that we have not made further progress on some of the key points.

On the question of what the Minister regards as retrospectivity and the linked incidents, I had hoped I had made it clear that this is not a retrospective look at incidents that have finished—historic incidents that have no relevance to the present. The amendment refers specifically to continuing harm, which is what matters. It is not the incident itself that is significant but the consequences of the incident and the examination of the failures of the state and public authorities, which should have protected the victims but, for whatever reason, did not and let down the bereaved, who suffered grievous losses—that is the point. It is not retrospective. I of course understand the points about the sensitivity of retrospective legislation and all the rest of it—but this is not that.

It is really important—and I hope the Government will reflect on this—that we bear in mind that what this whole part addresses is an attempt to redress the deep imbalance of power between victims and the bereaved, on the one hand, and on the other the state and public authorities that failed them so grievously. That is the whole point of this, and we have seen it over and over again.

On the question of timeliness—and that is the point of the fact-finding inquiry—this is absolutely crucial, for so many different reasons. I remind your Lordships’ House of the points made in the very potent report from Bishop James on the lessons from Hillsborough. He made the point that, unless you get to the truth quickly, it creates a period of time in which the authorities that are in the frame can establish a false narrative, which is precisely what the police did at Hillsborough—and that is precisely what the Hillsborough Independent Panel was designed to try to get to the bottom of, as it did. It started the process by which those Hillsborough families finally got some form of justice for their decades- long struggle.

I am really baffled as to why the Government, when they have such a good example of a new process that actually worked for the bereaved, and worked in a way that one public inquiry, a de facto public inquiry, with all the scrutiny and the coroners’ inquests, did not. They all failed, for different reasons, and it was only the fact-finding inquiry that got somewhere towards the truth and got something like justice for those families.

I do not know why the Government want to put to one side a successful example, which was actually delivered under a Conservative Government. This is not a party issue: this was set up by a Labour Government and delivered under a Conservative Government. I am baffled—but I take comfort from the fact that the Minister has accepted the need for a review and left the door open, I hope intentionally, to addressing some of these points in future. I am still worried about the problem of the fact-finding inquiry, and for that reason I am minded to test the opinion of the House, when we reach that amendment. I beg leave to withdraw Amendment 102.

Amendment 102 withdrawn.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, Amendment 118 opens this seventh group. It concerns publicly funded legal representation for bereaved people at inquests following a major incident. We would have preferred to table an amendment extending publicly funded legal representation to all bereaved people at inquests, but I understand that was not in scope. It has been a long-standing Labour commitment to extend publicly funded legal representation for bereaved people.

The current funding scheme allows state bodies unlimited access to public funds for the best legal teams and experts, while families often face a complex and demanding funding application process. Many are forced to pay large sums of money towards legal costs or represent themselves during this process. Others use crowdfunding. The Bill would represent a tiny opportunity to raise the need to positively shape the inquest system for bereaved people by establishing in law the principle of the equality of arms between families and public authority interested persons.

It is no longer conscionable to continue to deny bereaved families publicly funded legal representation while public bodies are legally represented. Without automatic access to non-means-tested legal aid, bereaved families are denied their voice and any meaningful role. The absence of representation weakens investigations into state action; funded representation of the bereaved can safeguard lives and ensure that mistakes or harmful practices are brought to light. I beg to move.

[Lord Wills (Lab)]

My Lords, Amendment 119 seeks to establish a code of practice for post-mortem processes. It arises out of a traumatic event suffered by Jenni Hicks, who lost her daughters Vicki and Sarah in the Hillsborough tragedy.

Perhaps the best way for your Lordships to understand the need for this amendment is to hear in Jenni Hicks’s own words what happened. This is how she described it in an email sent on 5 November 2022:

“I was asked if I would like to see 7 post, post mortem photographs of Vicki and 5 post, post mortem photographs of Sarah. I was warned they were both graphic and not pleasant. However, because of the 33yrs of lies, corruption, deception and lack of trust surrounding my daughters’ deaths, I chose to view them. I was shocked these photographs were in the hands of operation resolve. I’m aware the pathologists would have taken photographs to assist with causation of death and also to assist in writing the pathology reports. But, and it’s a huge but, I had assumed such graphic and sensitive photographs of naked bodies, including genitalia, would have been kept in a secure and safe environment. Not on a police computer”.


Moreover, as I understand it, the relevant injuries were to the head, and the genitalia were not pixelated, which they could easily have been. How could this have happened? These images existed for decades and, of all the many people who would have viewed them, not one of them thought, “This is not right”. It shows no respect for the dignity of the victims, who were young teenage girls. Why did not one person think that this was unacceptable? Not one did. If these had been the daughters of the people who had seen these images, year after year, one assumes that they would have been as profoundly upset and outraged as Jenni Hicks was. But they were not their daughters, so apparently no one cared. This unacceptable situation continued for decades.

For the most part, for whatever reason—and there may be many—a process of desensitisation often takes place in public authorities in the wake of major incidents such as this and on other occasions, apparently. This amendment seeks to put this right.

This amendment tries to address what is clearly an urgent need for a statutory code of conduct to preserve the dignity of the deceased and respect for the feelings of the bereaved. This is a probing amendment, as the Minister is aware. I understand that the Home Office is conducting a review to that end, so I assume that the Minister will want to await its outcome before deciding how to proceed. However, I would be grateful if he could confirm that the Government understand that this was unacceptable, that it must never recur and that they will give any new code of conduct the force of statute.

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I can assure the House that this matter is on the Government’s radar and will be examined most carefully and widely, once the findings of the independent forensic pathology review are available.

[Lord Wills (Lab)]

Can I just clarify this? I think the Minister accepts how serious an incident this was; I think it is accepted that this sort of contempt for the victims and the bereaved is probably pretty widespread, and that something has to be done to make sure it never happens again. Will he confirm that whatever code of conduct emerges from the processes he describes will be given the force of statute?

[Lord Bellamy (Con)]

My Lords, I am not at this moment in a position to give that confirmation at the Dispatch Box. I will give further thought to it, and write to the noble Lord in due course as to whether the Government are in a position to give that assurance. I see the force of the point.

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Moved by

[Lord Wills]

119AA: After Clause 39, insert the following new Clause—
“Power of Secretary of State to establish an inquiry on major incidents(1) Within six months of the declaration of a major incident under section 28(2), the Secretary of State must make a statement to the House of Commons on whether they intend to establish—(a) an inquiry under the Inquiries Act 2005,(b) an alternative fact-finding inquiry, or(c) no inquiry at that time.(2) A person or persons appointed to hold an inquiry established under subsection (1)(b) must be granted the powers to see and report on all relevant documentation.(3) A statement under subsection (1) must set out why the Secretary of State believes the decision is in the public interest. (4) In consideration of the public interest, the Secretary of State must demonstrate that they have had regard to timeliness, cost, transparency and the emotional and financial interests of the parties.”

[Lord Wills (Lab)]

My Lords, I heard what the Minister had to say about this amendment, but in view of the seriousness of what is involved here, the timeliness of a resolution for victims and the bereaved, and the cost to the taxpayer, I would like to test the opinion of the House.