Amendment 119A

Victims and Prisoners Bill - Committee (4th Day) (Continued) – in the House of Lords at 9:00 pm on 7 February 2024.

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Lord Wills:

Moved by Lord Wills

119A: Clause 28, page 29, line 23, leave out paragraph (a) and insert—“(a) occurs or occurred in England and Wales,”

Photo of Lord Wills Lord Wills Labour

My Lords, Amendments 119A to 119C in my name have been drafted to allow the independent public advocate to act for the victims of incidents, or series of events, that might have occurred before the passage of the Bill. As currently drafted, the Bill does not permit this.

Underpinning my original conception of the independent public advocate in my two Private Members’ Bills that were the genesis of this part of the Bill was the belief in the need for greater support and agency for those who had been failed by the state—which is meant to serve them—in what the Bill describes as “major incidents”. This is particularly the case when the full extent of such an incident may be revealed only over a period of time. In these circumstances, it is perverse to exclude from such support, which is outlined in the Bill the sub-postmasters whose lives were wrecked by the Horizon scandal, for example, or those whose lives were devastated by contaminated blood transfusions in the 1970s and 1980s, or by nuclear tests in the 1950s and 1960s. These are all catastrophic events that have, in some cases, become apparent only over quite a long period of time.

The victims need the support of the independent public advocate as they continue to search for justice and to right the wrongs that were done to them. These amendments will rectify this problem with the Bill’s current drafting. I beg to move.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee), Chair, Arbitration Bill [HL] Special Public Bill Committee, Chair, Arbitration Bill [HL] Special Public Bill Committee

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

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

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

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

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

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

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

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

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

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

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

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

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

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

“touched the lives of so many”.

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

Photo of Baroness Sanderson of Welton Baroness Sanderson of Welton Conservative

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

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

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, I thank my noble friend for moving his Amendment 119A and speaking to his other two amendments, and for the various examples he gave of the reason for the independent public advocate. Of course, there will be more substantial groups on this later, which we will not get to tonight. The noble Lord, Lord Marks, explained very clearly why the issue of retrospectivity should not apply in the types of cases we are talking about.

I thank the noble Lord for doing that. However, I do not thank him for speaking to Amendment 120 because he chose my example. I have not been able to think of another one while I have been sitting here. As the noble Baroness, Lady Sanderson, reiterated, there are occasionally incidents where there is a huge amount of public interest and concern. The noble Lord, Lord Marks, made the point that many lives are touched by incidents such as Fishmongers Hall even though fewer people were killed. It is about giving discretion so that the Secretary of State “may” declare that an independent public advocate would be suitable for this case.

We will have much wider debates about the roles of the IPA. I pay tribute to my noble friend for the many years of work he has done on this. I look forward to hearing the Minister’s response.

Photo of Earl Howe Earl Howe Deputy Leader of the House of Lords 9:15, 7 February 2024

My Lords, I am grateful to noble Lords for bringing forward the amendments in this group. All but one relate to the important issue of the definition of a major incident and its scope. I will address them in turn.

First, I will respond to Amendments 119A, 119B and 119C from the noble Lord, Lord Wills. These amendments seek to expand the scope of the independent public advocate scheme to include an event or series of linked events which have occurred prior to this section coming into force. In practical terms, as he has made clear, they would introduce a retrospective element to the scheme, allowing the Secretary of State to declare historic events as major incidents and to appoint an advocate accordingly. The noble Lord has brought this important issue to the Government’s attention. It is right that we should debate it.

At the outset, I need to state the Government’s position. Incidents which occur wholly—I emphasise “wholly”—before this part is commenced are not in the scope of this scheme. I recognise that the tragic events of the past and the experiences of those impacted by them have clearly highlighted the need for the independent public advocate. I do not mean to suggest otherwise. However, the IPA is designed as a forward-looking initiative to assist victims in the immediate aftermath of a major incident when there are investigations, inquests and inquiries into what happened. The scheme is intended as a way of providing support at an early stage. Given this, the Government believe that there would be limited additional benefit in appointing an advocate to support victims of incidents where the official processes are at an advanced stage or may have already concluded.

As the Bill stands, I can confirm that the definition of a major incident already covers either a single-time incident, or a series of linked incidents. It does not allow for the advocate to support the families of those who died or individuals who were seriously harmed by any linked incidents which occurred prior to the Bill’s commencement. Having said that, I recognise the point made by the noble Lord, Lord Wills, that recent events have shown that it can take time for events and their circumstances to become clear. There may be instances where these events do not occur during the same time period. I was grateful for the observations of the noble Lord, Lord Marks, on that theme.

I understand the importance of getting right the definition of a major incident. I have therefore asked my officials to consider it further. If it would be helpful, I would be happy to continue engaging with the noble Lord about this so that we can return to it on Report.

I turn to Amendment 120 from the noble Lord, Lord Ponsonby, which seeks to expand the definition of a major incident and therefore the IPA scheme. The amendment would allow the Secretary of State to declare a major incident in circumstances that do not meet the threshold of a significant number of deaths or those suffering serious harm but attract a significant public interest.

It is important for me to make it clear that the impetus for establishing a public advocate has been the experience of victims following past disasters that were exceptional, presented unique challenges and involved multiple organs of the state, which victims found difficult to navigate or have their voices heard by. The Government believe that it is important that the scope of this scheme is controlled and is clearly focused on assisting victims of major incidents which are, by their nature, rare. This amendment would set a possible expectation that the IPA might be appointed to support victims who have been involved in smaller-scale incidents, especially those where there are very few injuries or fatalities, which is not the policy intention.

There is a further and possibly helpful point that I can make. Arguably, the Secretary of State already has a broad discretion in the Bill to declare a major incident and to interpret the term “significant”. For those reasons, the Government, at this time, do not believe that this change is necessary. The public interest will also be one of the considerations that the Secretary of State will have in mind when making their decision, and more detail on this will be included in the policy statement.

Lastly, proposed new subsection (2B)(a) of this amendment seems to imply that blame or liability must have been found prior to this power being exercised. If the Secretary of State were to act quickly, they may risk prejudicing any subsequent investigation, which would not serve the interests of victims.

I am afraid that the amendment runs counter to the Government’s policy intention, but I hope that it is helpful that I have pointed out that potential element of discretion that is built into the wording in the Bill, and I hope that the noble Lord, Lord Ponsonby, will understand why we cannot support the amendment.

Lastly, I turn to Amendment 126 from the noble and learned Lord, Lord Thomas of Cwmgiedd, which would require the Secretary of State to obtain the concurrence, or in other words the agreement, of Welsh Ministers before appointing an advocate in respect of a major incident occurring in Wales. The purpose of the independent public advocate scheme is to support victims of major incidents. This Government agree that these functions fall within the devolved competence of the Welsh Senedd, with the exception of the amendments to the Coroners and Justice Act, which Clause 34 provides for.

The Ministry of Justice has engaged with officials in the Welsh Government during the development of this policy. It is clear that there is great benefit to having a single scheme that covers England and Wales to provide consistency of service. Our discussions with the Welsh Government are ongoing, as we seek a legislative consent Motion for these measures. Ministers in the UK Government will write to Welsh Ministers shortly, setting out a proposal for their role with regard to declaring a major incident which occurs wholly in Wales, and the subsequent appointment of an advocate in respect of that major incident.

I hope that that reassures the noble and learned Lord that this is a live issue that is very much on the radar of my noble and learned friend Lord Bellamy. He is very much aware of the devolution implications, and we are actively working to find a solution. The Government will bring forward any necessary amendments on Report, and I am happy to return to this topic at that time.

Photo of Lord Wills Lord Wills Labour

My Lords, I am grateful to everyone who has spoken in this short discussion and to the noble Lord, Lord Marks, for his remarks, and particularly for his cogent justifications for these amendments in terms of retrospection, which were an extremely valuable contribution to the debate. I am very grateful to the noble Baroness, Lady Sanderson, and to my noble friend Lord Ponsonby, for their support too.

I am also extremely grateful to the Minister for his open mind on this issue, if I may take it that far—or at least a willingness to continue discussion on what is quite a crucial question. I am very happy to do that, and I shall withdraw the amendment shortly.

I just want to say a few words about the Minister’s comments. He stressed the word “wholly”—major incidents that happened wholly in the past. That is a very important word, because it means when the incident no longer has any impact on the victim. In most cases—to think of the bereaved or those who suffered, not necessarily directly but indirectly, as in the examples from both the noble Lord, Lord Marks, and my noble friend Lord Ponsonby—such incidents are by definition not wholly in the past. The postmasters’ suffering is not wholly in past, even though the damage was done in the past. Similarly, for the victims of blood transfusions and their relatives, and the victims of nuclear tests in the 1950s and 1960s, these are ongoing traumas. They are the people who need the support of the independent public advocate.

I am, as I say, very happy to carry on this discussion in the hope that we can find some sort of resolution. A large number of people are still grievously affected by these major incidents, and I hope that this rare legislative opportunity to help them can be seized. With that, I beg leave to withdraw the amendment.

Amendment 119A withdrawn.

Amendments 119B to 120 not moved.

Clause 28 agreed.