Victims and Prisoners Bill (Third sitting)

Maria Eagle Excerpts

Committee stage
Thursday 22nd June 2023 Public Bill Committees

[The Chair]

Mr Sutton, would you like to say anything?

Ken Sutton: Thank you for the invitation. I headed up the secretariat that supported the Hillsborough Independent Panel and worked with Bishop James Jones in that capacity, as I have done ever since. I hope that my experience can shed some light on the independent public advocate.

[Maria Eagle (Garston and Halewood) (Lab)]

Q164 It is good to see you, Mr Sutton, and the Right Rev. James Jones; you were my constituent when you were Bishop of Liverpool, and we have had dealings over many years through our work on Hillsborough. It is good to see you both. The Hillsborough Independent Panel was set up in 2010 and completed its work by 2012. It did a fantastic job of looking through many documents and setting out the truth that families had been searching for since 1989. Bishop, why was the panel able to do what numerous legal proceedings over the years appeared to fail to do? What was it about how you went about your work that meant that it was successful in difficult circumstances?

Rt Rev James Jones: We had to gain the trust of the families, understandably. At the outset, families were not instantly persuaded that the panel, which was set up by the Government, would do what we were charged with doing, which was to access all the documents available from public authorities, analyse those documents with a team of experts, and write an account, so that there would be greater public understanding of what happened on that day. In the end, I think we gained the confidence of the families, and due to their tenacity and the expertise of the various panel members, we were able to shed light on what happened on the day and in the aftermath.

[Maria Eagle]

Q Did the panel have particular powers that ensured that the job could be done while maintaining the trust of the families, who of course, after 21 years, were disinclined to trust public authorities and investigations because so many of them previously had not come through with the facts?

Ken Sutton: I think the success of the panel did not come from its powers; as a non-statutory form of inquiry, we did not have any powers. I think the success of the panel was built on the relationship that the panel members and the secretariat established with the Hillsborough families from the start of the work. At the heart of that—I think this is very relevant to today—was the fact that the panel listened to the families. That may sound like a very simple statement, but the experience of the Hillsborough families and others was that they were not listened to. Individual Hillsborough families made the point to the panel, and to me, that they felt listened to for the first time when the panel was established. There is a clue there for the work of the independent public advocate going forward: they should, first and foremost, be listening to the families affected.

Rt Rev James Jones: To add to what Ken has said, Maria, the title of the second report, which was about learning from the families’ experiences, was “The Patronising Disposition of Unaccountable Power”. That is exactly how the families felt that public authorities were treating them over those years.

[Maria Eagle]

Q Bishop James, you have said on record that you support the establishment of an independent public advocate. What would that person or persons do that would add to what happens in the aftermath of a disaster, which is that there are inquiries, possibly public ones, inquests if there have been fatalities, and possibly ongoing legal cases thereafter? What would the establishment of an independent public advocate add to that landscape?

Rt Rev James Jones: Contrary to the Government’s proposal, I believe that there should be a standing independent public advocate. Why? Because in the immediate aftermath of a public tragedy, people are grief-stricken and traumatised. They are unprepared and disorientated, and they no longer feel in control of their life. It is in that immediate moment that they need an advocate—somebody who will represent them to Government and signpost them to the agencies that are available to support them in that moment of trauma.

[Maria Eagle]

Q You have said that there should be a standing advocate, but do you have a view about who should call on the advocate to get involved in any particular circumstances? Should it be the standing advocate themselves? Should it be done only if the families ask for it? Or should the Secretary of State perhaps be the person to decide? Do you have a view about that?

Rt Rev James Jones: I do. I think the independent public advocate should have the right to engage with the families, but the families should also have a right to call upon the IPA if the IPA has not taken that initiative. My view is that the independence of the IPA has to be at the moment of decision. Unless the IPA is free to make the decision about engaging with the family or families, then I think the IPA is just a public advocate, and not an independent public advocate.

[Maria Eagle]

Q So independence is very important to the way in which you see these things. You will have had a chance to look at the Bill and its proposals. Do you think that Bill provides enough independence?

Rt Rev James Jones: I am afraid I do not. I welcome the Government’s initiative, and I welcome their determination to continue to listen to various parties as they shape this appointment. However, I do not think that that independence is sufficiently guaranteed by the Bill as it stands; I think it can be guaranteed only if it is a standing appointment.

[Maria Eagle]

Q Are there powers or other roles that you think the advocate should have, apart from those you have already set out? For example, the Hillsborough Independent Panel had the power of data control, and could collect and look after all the information, which you duly did, before it was published. Do you recall that some of the Hillsborough families could be cynical about whether things were going to be revealed—until they were—because of the use of freedom of information, and because the Government could avoid handing out certain documents, which would give rise to suspicions about what was being held back? In the circumstances of Hillsborough, after many years, there were a lot of suspicions. Do you think that the independent public advocate has a role—and if so, what—in ensuring that those suspicions do not arise?

Rt Rev James Jones: I do think the IPA has a role, but I think there is a difference between the IPA and the Hillsborough Independent Panel. I will leave it to Ken to differentiate those two things. As to your question about what specific responsibilities the IPA should have, I would list them as follows. First and foremost, the IPA should be able to instruct all implicated agencies to keep, and not to destroy, public records. We should not have to wait until a panel or public inquiry is set up to instruct those agencies to keep all records. Secondly, I think the IPA could call on all implicated agencies to adopt the charter for families bereaved through public tragedy, which in essence calls on those agencies not to put their reputation ahead of the interests of the families of the victims and the survivors.

I think, too, the IPA can advise the Government on the setting up of an appropriate review, be that a public inquiry under the Inquiries Act 2005, an independent panel or a different form of review or commission. I think, too, the IPA is in a good position to advise the Government on the terms of reference for such an inquiry or panel. One problem that I have observed over the years is that terms of reference are often cobbled together at very short notice, at the last minute, and are not adequate to the task.

The IPA could also advise the Government on the sponsoring Department. I draw attention to the infected blood inquiry: the families were very concerned about the fact that the sponsoring Department was the Department of Health, which was implicated in many of the allegations. Indeed, I was asked by the families whether I would petition the Prime Minister to transfer the sponsorship of that inquiry from the Department of Health to the Cabinet Office, which Theresa May, when she was Prime Minister, did, to the satisfaction of the families. The IPA could also have a role in scrutinising whether lessons really have been learned from the inquest or inquiry, so that those lessons can be embedded across Government and prevent future tragedies.

Ken Sutton: It was crucial to the success of the Hillsborough Independent Panel in the task that the bishop has described that it was, and was seen to be, impartial and certainly not merely an advocate for the families. Had that not been the case, we would not have had the success in publishing the documents that were published, because we would not have had the trust of the public authorities in exercising that role. I think it is important to distinguish the role of the panel from the role of an independent public advocate, going forward.

There is one other point that I think is relevant. I had the privilege of consulting the Hillsborough families about the membership of the panel, but I was very conscious that I was doing that 20 years after Hillsborough. If we were talking about a similar disaster now, where an advocate was needed, that is not the conversation that would be relevant to the families at the time of the disaster. The Bill is in some danger of creating a conversation with families that is not the right conversation to have at the moment of bereavement. I worry that the well-intentioned idea of consulting the families about prospective advocates would be more damaging than helpful at that time, and that it is wrongly placed in the process.

That is why I agree with the bishop that the better option would be for the independent public advocate to be appointed in advance, so they can discuss with the families the help that they can bring, and be immediately available for that purpose. That does not rule out there being a panel of advocates; I can well see that the independent public advocate might want to bring in a panel, or advise on other panel members being appropriate. That might be relevant for reasons to do with skills, if there are other panel members, geography, or possibly the multiplicity of incidents, if there is more than one at the same time, which is conceivable in the terrorist context. There is some learning from the Hillsborough Independent Panel, but it is important to distinguish that what the panel did is not what the independent public advocate would be doing.

[Maria Eagle]

Q Do you think that the independent public advocate should have the power to appoint a panel like the Hillsborough Independent Panel to try to do the job that the panel did, which was to get at the truth, albeit many years later?

Ken Sutton: Honestly, I do not think it is a matter of powers; I think the independent public advocate will have a voice. The importance for me is the authority of the person in taking forward this work. That person would have the authority, and maybe in legislation could be entitled to express a view on what form of inquiry should go on alongside their work.

If I put myself momentarily in the shoes of South Yorkshire police, I would not have wanted or welcomed the panel being created through an independent public advocate who is there, by definition, for the families. The decision on an inquiry has to be for the Government, but the independent public advocate, having talked with the families in the immediate aftermath, would be well placed to offer advice on the form that that inquiry should take.

[The Chair]

Could I just interrupt for a moment? We do not have a lot of time and we have quite long answers. Does anybody else want to ask a question? Would you mind if I interrupt, because I want to get other people in? Sir Oliver Heald and then Sarah Champion. Please can we have short answers?

--- Later in debate ---

[Maria Eagle]

Q Lord Wills, welcome. You have been promoting a Bill in the House of Lords to establish a public advocate since 2014, I think. What are the differences between your Bill and the one that this Committee is scrutinising? Do you think that the current draft will achieve any of the aims that you were seeking to achieve with your Bill?

Lord Wills: I thank the Committee for inviting me to give evidence today. Let me start with the good bits of the Bill. The Government have endorsed the concept of an independent public advocate and have seen through the promise they made in the 2017 Queen’s Speech. I am grateful for that, and grateful to all the Ministers and officials who contributed.

In my view, however, the Bill is flawed in two main areas. When the Justice Secretary introduced the Bill on Second Reading, he said that

“in order to deliver justice, victims must be treated not as mere spectators of the criminal justice system, but as core participants in it.”—[Official Report, 15 May 2023; Vol. 732, c. 583.]

Exactly right—but that is not what the proposals for the independent public advocate do. They do not give the families effective agency.

As I understand it, the Bill gives the Secretary of State unfettered powers to appoint an independent public advocate or not to do so, and unfettered powers to dismiss an independent public advocate. It also gives the Secretary of State sole right to require the independent public advocate to produce a report. As I understand the Government’s proposals, the independent public advocate will not have the right enjoyed by the independent reviewer of terrorism legislation, for example, to be an independent office that has the right to produce reports on its own initiative. In that way, the Bill does not fulfil the original intention of my Bill, which was to give bereaved families and surviving victims of public disasters effective agency.

Secondly, and crucially, the Bill does not give the independent public advocate the power to convene something like the Hillsborough independent panel, which after two public inquiries and, for the families, decades of campaigning was the first time that full transparency was achieved in finding out why Hillsborough happened, and what happened in the crucial hours and days after, when, as the bishop so rightly said, a false narrative was being created that was enormously distressing for the families, who were already suffering unimaginable grief.

[Maria Eagle]

Q You have said that the families should have agency and that transparency is important. Are things missing from the current draft that, if they were included, would improve matters and bring it a bit closer to the view you formed when drafting your own Bill?

Lord Wills: I recognise that, as Ken Sutton said, in the end the Government have to have the final say. My original Bill denied them that. I can see the case for the Government having the ultimate say, but there is a halfway position between that and this Bill as drafted. This Bill could and should fetter the Secretary of State and the Government in such a way that they must, for example, have regard to the wishes of the families, to the public interest, to full transparency and so on. That would be quite a significant fetter on Executive power, and I would like to see it incorporated in this Bill. It would not give the families full agency, but that itself is complicated: there is a question of which families and how you define the families, which is for the detailed drafting of this Bill. It would give the Secretary of State some sort of discretion, but we have to go further than this Bill does in giving the families better agency.

[Maria Eagle]

Q You were a Justice Minister when the Hillsborough independent panel was established, and you had to grapple with some of the issues about how it would work. My understanding is that that experience led you to believe that wider reform was needed. What lessons from your experience of helping to establish the parameters of the Hillsborough independent panel were reflected in your Bill? What gaps in how other disasters have been dealt with was your Bill designed to plug? What can we do to this Bill to make sure it does that wider job?

Lord Wills: It is important to remember that at the time the Hillsborough independent panel was established, there had already been two public inquiries chaired by distinguished judges, both of which were flawed in different ways and both of which had failed to prevent the false narrative that the bishop referred to—the cover-up by the police, the brutal commentary in some of the popular press—from taking root, causing enormous trauma for the bereaved families. What I was concerned about was making sure that finally, in any kind of panel and if any documents were to be released, the families should have full transparency. There were issues with that to do with data protection regulations. We thought we would get round them by putting the panel in the position of data controllers, so they would have the power to review all the relevant documentation and would then be able to publish their report. As it happened, they did publish a very large number of the documents they reviewed, although not all; a few were redacted. Crucially, I think the fact that the panel had seen everything gave the families confidence that they were getting something very, very close to the full transparency that they had been denied up until that point. That was a crucial lesson.

The other point that might be worth making is that setting up the Hillsborough independent panel, which is now seen as a great success due to the work of the bishop and Ken Sutton—indeed, all the panel—was not easy. Politicians and Ministers often have mixed motives, and while everyone was extremely sympathetic to the families, pretty much the entire Cabinet, for various reasons, was against my efforts to set up the panel in the way that I did. Fortunately, the one member of the Cabinet who did support me was the one who really mattered, and that was the Prime Minister.

[Maria Eagle]

Thank you.

[Sir Oliver Heald]

Q Lord Wills, do you agree with the idea of having a standing appointment rather than an appointment for a particular incident? Could you also explain how you see the independent public advocate? Is it an impartial person, as described by Ken Sutton, about the panel? What sort of person would it be in terms of qualifications and skills? Do you agree that this person should not be able to take part in legal activity? In other words, if they were at an inquest they would be there as an interested person but represented by a separate lawyer. Do you want to comment on that?

Lord Wills: Yes, I believe it should be a standing appointment, for the reasons that the bishop set out extremely well. In the turmoil of the aftermath of a big public disaster, it is important that someone is on the ground immediately to support the families. I do believe that, and I think it is a perfectly achievable position to have. A secretariat could be drawn together at short notice—a standing secretariat, as it were. It would be doing work within the civil service, but when a public disaster happened it could be brought to bear to act as a secretariat for the independent public advocate.

I hate to think of what might happen. If you imagine a big terrorist incident, for example, the Government would be in turmoil anyway, and then they would have to find the time and space to go through all the selection processes, find out people’s availability and negotiate terms of reference. In the meantime, the poor families are left without anyone to support them, as they always have been up until now. It rather defeats the object of this whole exercise. So I am in favour of having a standing appointment.

As for who the independent public advocate should be, when I originally drafted my private Member’s Bill I had it in mind that it would almost certainly be a lawyer of some sort, and they would function in a similar but not identical way to the reviewer of terrorism legislation. In other words, they would be a distinguished lawyer with a lot of experience in these sorts of areas. Every public disaster is different and it would be very difficult to find someone who had expert knowledge in every possible area, but the broad parameters would be the same.

The main point would be to be able to guide the families through all the various processes that might be taking place, and above all to secure full transparency about what had happened and produce a report on it. As I say, I had it in mind that it would be a lawyer. They are usually extremely useful in these circumstances— I do not speak as a lawyer—but it is not impossible to imagine that it could be someone else with a similar sort of expertise.

Forgive me: there was another part to your question, but I have forgotten it.

--- Later in debate ---

[The Chair]

Our next witnesses are Nick Hurd, the independent adviser to the Prime Minister on Grenfell, and Tim Suter, a solicitor at the Manchester Arena inquiry and the Hillsborough inquest. Welcome, Nick; you are appearing via Zoom. Who wants to lead off the questions? Is it Maria again?

[Maria Eagle]

I am happy to, but I do not wish to monopolise.

[The Chair]

No, let’s hear from—

[Jess Phillips (Birmingham, Yardley) (Lab)]

The expert.

[Maria Eagle]

Q Thank you, Chair. Thank you for appearing, Mr Hurd and Mr Suter. Mr Hurd, will you set out what problems you came across in your role as adviser to the Prime Minister on Grenfell? As a former Minister and in that role, you must have had a lot of contact with families affected by disaster. In those roles, what has your experience been of the main problems in the aftermath of a terrible public disaster like that, which affects so many people, and what should we do to address them?

Nick Hurd: Thank you for the welcome, Chair, and thank you for the question, Ms Eagle. Every disaster has its own specific context. I will take a minute to clarify my role in Grenfell and how it came about before answering your question.

The specific context of the Grenfell disaster was that, at the time, I was Minister for Policing and the Fire Service. I had some involvement in the co-ordination of the response in the aftermath, which was inadequate. The combination of the disaster and the response resulted in a situation in which there was zero trust—negative trust—between the communities affected and the state in the form of both the local authority, which many blamed for the disaster, and the national Government, which many blamed for the inadequate response to the disaster. I was asked by the then Prime Minister, Theresa May, to play a special role. It might have had some parallels with the role that Tessa Jowell played in a different context, that of 7/7. My role was to build a bridge of communication between the communities affected—the bereaved, survivors and residents close to the tower—and the state, in particular the central Government, who were more involved in the aftermath than they had expected to be. That was the specific context: I was not an independent advocate, but a Minister trying to build bridges of trust and communication.

To answer your question, I think that the central point is the one that Michael Wills made. The central difficulty that I faced was the lack of trust that the community felt and their lack of agency. In the specific context of Grenfell, many felt that they were victims of the state, and they found it difficult to believe that the state had an interest in supporting them or that they had any agency or voice in that process. In hindsight, that was one of the biggest challenges that we faced. I support the emphasis that Michael Wills put on it.

[Maria Eagle]

Q Thank you. I will come to you in a minute, Mr Suter, because your role was slightly different. Mr Hurd, what do you think about transparency? Grenfell has not lasted 34 years like Hillsborough did, but time has passed and there is still a feeling that a lot is not known about what went on, inquiries are still ongoing and there has not been a definitive outcome. Do you feel that the independent public advocate as proposed in the Bill—or a version of that advocate if the proposals are amended—could offer something positive to stop the lack of trust and prevent families from feeling excluded, “done to” and that they are not being told the truth, which often happens in the aftermath of disasters?

Nick Hurd: If set up in the right way and with the right individual, the role could be very valuable in helping families to believe that there is someone on their side, given that of course they do not understand the system—why should they?—and feel that it is not listening to them and is not on their side. In principle, I am supportive.

I would enter a caveat around expectation, however. To the point that I think you were making, sometimes it takes a long time to get to the truth and to justice, which is the word that is used in the Grenfell context; “accountability” is a softer word. That process takes time. In the case of Grenfell, the public inquiry is generally extremely well regarded for the rigour of its processes and how it is led, but it is inevitably going to take quite a long time to get to the point of ultimate truth and accountability. I doubt that there is very much that an independent public advocate can do to speed up the process in the context of formal public inquiries and inquests. I would have a concern about expectation management and about how the thing is set up in a way that the system is required to respond to an independent public advocate.

[Maria Eagle]

Q Thank you. Mr Suter, you have acted as solicitor to the Manchester Arena inquiry and have had professional involvement in the aftermath of a number of disasters. Do you have any general observations about the proposal for an independent public advocate? Given your experience, would it be helpful in your professional opinion?

Tim Suter: Thank you for the question, and thank you to the Committee for inviting me along today. Let me just give you some context about my experience. I am a solicitor, and for the last 15 years I have helped those conducting inquests, inquiries and investigations. You referred to the new inquest into the Hillsborough disaster; I was the solicitor to that, and I am the current solicitor to the Manchester Arena inquiry. I also assisted the inquests into the Birmingham pub bombings and the 7/7 inquests. Through those and other investigations, I have had lots of experience and exposure to the difficult issues that those cases have to investigate, but also to the bereavement and anguish that those who are at the heart of those investigations go through. It is clear to me that the role of an IPA is very valuable. To be frank, I think there is some confusion in the Bill about the role that the IPA could and should fulfil, but at its core I fully support the need for an IPA.

As people gave their evidence, I jotted down words that absolutely ring true for me—references to “anguish”, “impotence”, “distrust”, “patronising” and “lack of access to power”. I have experienced all those things. On the flip side, there was talk of “agency”, “voice”, “empathy”, “the truth” and “compassion”. At its heart, that is the purpose of an inquisitorial process such as an inquest or inquiry. If the IPA can help with that in the right way, I think it is absolutely right.

[Maria Eagle]

Q You might not have read the details of the Bill, but if you have, do you have a view about whether the current draft would do that job? If you have concerns about it, do you have any views, given your experience, about what the Bill ought to say in order to make a difference?

Tim Suter: I think the bishop summarised it very well in referring to a standing IPA. In my mind, I have characterised it as a standing office—the office of the IPA—whereby there is almost a chief IPA who is appointed. That would be a process that happens as soon as the Bill receives Royal Assent. It would be properly resourced; or it may not be resourced, but it should be absolutely firm that the resources for the chief IPA to fulfil their job are available. I think they should have the power to appoint IPAs in the light of a particular disaster. They may or may not be involved themselves; it depends on the nature of the disaster.

There are some issues in the Bill as well about the terms of appointment and the resignation of the IPA. I did not really understand why that is there. It needs to be much more forceful and brought almost into line with how the 2005 Act is framed, which is much clearer about the appointment process and the need for that appointment only to be terminated in very particular circumstances.

I have some questions—perhaps points of granularity—about how an IPA is going to advocate on behalf of those under 18. For the Manchester Arena inquiry, many of those affected were under 18. No one should be excluded just because of age from the vital work that an IPA would do. For me, that came across as needing a little bit more work and analysis. There was an intriguing reference to “no immunity” in the Bill as well, which I thought seemed a little out of kilter—perhaps I just do not know the detail. Why does the Bill refer directly to the IPA having no immunity? Then you go through to the process of reporting; as far as I can see, a report is not necessarily laid before Parliament, where it would get the protection of parliamentary privilege. All of felt that it needed to be reviewed with a little bit more scrutiny.

[Sir Oliver Heald]

Having a standing appointment or an office would mean that you could have speedy action. I was asking the previous witnesses whether they thought the role should be an impartial one, as the Hillsborough panel inquiry was. What sort of skills and qualifications should the person have? Do you agree that that person should not be able to undertake legal activity? For example, at an inquest, they would be an interested party and could be represented, but they would not be doing the representation themselves.

Nick Hurd: Oliver, good to see you. I have not thought it about very deeply.