Lord Wills gave evidence.

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.

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.

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.

Thank you.

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.

Q If there were a following inquest, it is proposed that the independent public advocate would be an interested party but would not be able to carry on legal activity himself or herself; they would be represented. Do you agree with that?

Lord Wills:

I do agree with that. That is one part of the Bill that is probably sensible. I can understand why it is in there and I can see possible conflicts of interest with professional lawyers, so I do agree.

Thank you very much.

Q Good afternoon, Lord Wills. We last met when you spoke to the Justice Committee, of which I am a member. Do you believe that the independent public advocate should have the ability to access all data, communications, documents and other information to avoid future cover-ups? If so, do you think that the Bill achieves that?

Lord Wills:

The prevention of a cover-up is essential in the wider interests of our democracy. People are losing faith in our democratic institutions. When they feel that Governments are covering up things that are crucial to them, they lose faith. In my view, that is worrying and dangerous. We have to do everything we can to protect against that, so anything we can do to raise the barriers against those sorts of cover-ups is crucial. That is why I would also support the introduction of a duty of candour.

We have to accept that a cover-up is part of the pathology of a big public disaster. It is human nature. When something happens like Hillsborough, the Manchester Arena bombing or Grenfell Tower, it is a huge story for the nation, and obviously those in power at the time, who feel they might be blamed for it, will feel that they have to cover up in some way. We saw what the police did with Hillsborough: they created a false narrative as part of that cloud of unknowing that they wanted to create, to cover up. What they feared, rightly in the end, was that they would be blamed for it.

That is true of pretty much every public disaster: obviously the details are different, but there is that essential pathology. There is always a risk of cover-up. I hope this Bill, suitably amended, will raise the barriers against that, but it does not mean that we can drop our vigilance against the potential.

Q You mentioned this point, and want to press you a little further. The Bill would require the Secretary of State to publish a copy of the report made by the independent public advocate in whatever manner they considered appropriate. What do you think about that measure, specifically the part about what they consider appropriate?

Lord Wills:

Again, the Secretary of State has too much unfettered discretion. I am not opposed to them having the ultimate responsibility, but you have identified there a very good example of giving the Secretary of State what, in my view, they should not have.

Lord Wills, thank you for all the work you have done in this field. I want to build on Janet’s point. You have repeated that the Bill gives the Secretary of State unfettered powers. On re-reading part 2, it strikes me that it does not say very much at all about the powers that the independent advocate would have. What would you like to see in the Bill?Q

Lord Wills:

You have put your finger on the whole problem with the Bill—lots of powers to the Secretary of State and very few for the independent public advocate. There are various details of the Bill where the drafting could be improved.

I return to two main points. In some way, families have to be given effective agency, and that must mean some fettering of the powers on the Secretary of State. I am agnostic about the way to do that, and I have always accepted that my private Member’s Bill was not perfect. I am agnostic about how you fetter the Secretary of State, but something like ensuring that the Secretary of State “has regard to” the wishes of the bereaved and surviving victims would be a good start in making a way forward.

The other point, as I have said, is transparency, which I cannot stress enough. We have to get to the truth as quickly as possible. The Hillsborough Independent Panel did a magnificent job in a very short space of time, when it was inevitably more difficult, because 20 years had elapsed. Therefore, my view is that there has to be a presumption—not a requirement, because there has to be an element of discretion—in the statute in favour of an independent Hillsborough-type panel being set up. The important point is it is not adversarial. Big public inquiries very easily become adversarial; all sides have lawyers that argue and dispute, so that often a fog of dispute comes over these events. The Hillsborough Independent Panel had none of that. It was an impartial search for the truth. There must be a presumption in favour of a similar type of panel in all future public disasters. That should not be an absolute requirement, but there should be a presumption in favour of it.

Thank you very much for your evidence, Lord Wills. That concludes this session.

Lord Wills:

Thank you.