Victims and Prisoners Bill

Lord Hope of Craighead Excerpts

Committee stage
Tuesday 13th February 2024 Lords Chamber

Moved by

[Lord Hope of Craighead]

127: Clause 31, page 31, line 20, leave out “on such grounds as the Secretary of State considers appropriate” and insert “if the advocate is unfit or unable to fulfil their functions”

[Lord Hope of Craighead (CB)]

My Lords, a good deal has been said about this amendment already in one way or another before I have got to my feet to introduce it.

Perhas I might begin with a bit of a preamble. I think I can take it as common ground across the Committee that the advocate appointed in respect of major incidents must be independent—that is, independent of the Secretary of State. The phrase “independent public advocate” has been used several times today from the Benches opposite, and I think the Minister used the expression “IPA”. Although he did not actually express the word “independent” as such, IPA means “independent public advocate”, so I take that as an indication that “independent” is agreed as a proper and necessary qualification of the advocate that we are talking about.

I think I am right in saying that it is a curious feature that “independent” does not actually appear in any of the clauses in this part, but it does appear in the contents. When the list of contents comes to Clause 33, it refers to “an independent public advocate”, so there is some basis in the text of the Bill for using that expression. That is why I think I can take it as secure common ground for what I am about to say that independence is a necessary qualification for the advocate.

My amendment seeks to address the phrase

“on such grounds as the Secretary of State considers appropriate”

in Clause 31(2) referring to the termination of the appointment of the advocate. As I read the clause, it seems to open the ability of the Secretary of State to terminate the appointment very widely indeed. With my amendment I am seeking to limit the grounds, in the interests of clarity, to situations where the advocate is either unfit or unable to fulfil the functions of the advocate.

I cannot claim much originality for the amendment because it derives from a report on the Bill that was published on 18 January this year by the Constitution Committee, of which I was then a member. The committee suggested that the independence of the advocate might be better protected if the words in my amendment were to be substituted. The committee refers by way of an example to their use with regard to similar appointments, particularly the appointment of a Victims’ Commissioner, under the now repealed Section 48 of the Domestic Violence, Crimes and Victims Act 2004, where that phrase was used. That particular provision has been repealed. I am not quite sure where it is now, although I am sure it exists somewhere, but the fact it was there gives some precedent for the phraseology that I am putting forward in my amendment.

To come back to the principle itself, the principle that the advocate must be independent if he or she is to perform the functions set out in Clauses 33 and 35 lies at the heart of what my amendment is all about. It is also true of Amendment 129 in the name of the noble Lord, Lord Ponsonby of Shulbrede. I refer the Committee to the phrase that he includes in that amendment, which is

“must be independent with respect to its functioning and decision-making processes, and discharge of its statutory duties”.

Although I did not add my name to the noble Lord’s amendment, I offer it my full support because it strikes at the very point that I am seeking to make and it has the great merit of introducing the word “independent” into this part of the Bill for the first time, which takes the matter a significant step forward.

The point is that the role of the advocates that the Bill is referring to in Part 2 is to represent the interests of the people who need them, not those of the Secretary of State. Clause 33(3), for example, states that an advocate appointed in respect of a major incident may provide such support to victims of the incident in relation to an investigation by a public authority

“as the advocate considers appropriate”.

Clause 33(4) provides that such support may include

“helping victims understand the actions of public authorities … communicating with public authorities”

on their behalf, and

“assisting victims to access documents or other information in relation to an investigation, inquest or inquiry”.

The point was made earlier that, if the advocate is to engage in encouraging and assisting victims to access documents, independence is rather important to be able to carry out that function to its proper degree.

Then there is the reporting function in Clause 35. Reference is made here to the advocate’s opinions as to the treatment of victims in the course of an investigation, inquest or inquiry, and

“such matters as the advocate considers relevant”

to the major incident. I submit it is essential, if the advocate is to fulfil the functions set out in these clauses, that he or she should be free to exercise his or her own judgment without looking over his or her shoulder to see whether the Secretary of State likes or approves of what they are doing. There is a risk of a conflict of interest if the appointment is terminable on whatever grounds the Secretary of State considers appropriate.

I listened with some care to what the noble Earl said at the end of the last group for a hint as to what the objection to my amendment might be. He suggested that the Secretary of State may wish to limit the number of advocates or, for some other reason, move the appointments around, and so on. There is nothing sinister in this, it is simply a matter of proper organisation of the resources. I take that point, but it seems to me that the phrase in the clause is so wide that it opens the door to the accusation that it is actually at risk of undermining the independence of the advocate. It is an invitation, or it leaves it open to the Secretary of State, to terminate the appointment simply because the Secretary of State is dissatisfied or objects in some way to what the advocate is doing. That is the very last thing one would want if the advocate is to be truly independent.

Of course, I do not suggest that the formula I have put forward is the last word on this matter. It may be that the phraseology to which I draw attention could be limited in some way to remove the objection to which my amendment is primarily addressed. But I think I have said enough to enable the Minister to understand the point I am making. I hope he will give careful consideration to amending Clause 31(2), if not in the way I have suggested, at least in some other way to limit the breadth of the phraseology. I beg to move.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I shall speak first to the two amendments in my name. Amendment 29 states:

“During their appointment, an advocate may sit within the Ministry of Justice for administrative purposes, but must be independent with respect to its functioning and decision-making processes, and discharge of its statutory duties”.


The purpose of this probing amendment is to seek clarification of the function and operational independence of the advocate.

Amendment 132 would remove the power of the Secretary of State to issue guidance to advocates appointed in respect of major incidents and give this power instead to the standing advocate. It states:

“The standing advocate may issue guidance as to the matters to which other advocates appointed in respect of a major incident must have regard to in exercising their functions”.


The noble and learned Lord, Lord Hope, spoke to his Amendment 127. In a sense, there is an overlapping theme between this short group and the previous one and, indeed, other matters that have been discussed in Committee. That overall theme is bolstering the independence of the public advocate. I take the noble and learned Lord’s point regarding Amendment 129—I must admit I had not really appreciated it—that this is the first time “independent” appears in this part of the Bill. That is another example of bolstering the independence of the public advocate and the role itself.

In a previous group, the noble Lord, Lord Marks, spoke about putting the financial support for the IPA in the Bill. That too is a way of bolstering support, giving the advocate independence from the Secretary of State, so that the IPA is not constantly looking over his shoulder in terms of what the Secretary of State’s views might be. I too take the Minister’s point, made at the end of the previous group, that there may be practical reasons why the Secretary of State wants to move public advocates around. As the noble and learned Lord, Lord Hope, said, there is nothing sinister about that. Nevertheless, this suite of amendments is all about bolstering the independence of the IPA and trying to integrate the victims’ views into the process as far as is practicable. As was said when we debated the importance of review in the previous group, the way in which this new position is managed and the roles taken on may evolve over time.

I am hoping to hear from the Minister that the Government are sympathetic to the overall thrust of the amendments on independence of operation and making sure that victims’ views are represented at every opportunity as this role evolves.

--- Later in debate ---

Therefore, while I recognise the intent of the noble Lord’s amendment, the Government believe that it is necessary for the Secretary of State to retain the power to issue guidance to the advocates. There is no doubt that the views and expertise of the standing advocate may be useful in informing this group going forward. I hope this satisfies the noble Lord, Lord Marks, that guidance will never impact on the independence of the actions of the independent public advocate. I respectfully ask the noble and learned Lord, Lord Hope of Craighead, to withdraw his amendment.

[Lord Hope of Craighead (CB)]

My Lords, I am grateful to all noble Lords who have spoken in this short debate. I am particularly grateful to the Minister for stressing several times in his reply the Government’s commitment to the independence of the advocate; that is extremely important.

The problem is that that is not expressed clearly enough on the face of the Bill. It is curious, as I pointed out at the beginning, that it appears in the contents but not the text of any of the clauses. That is curious and suggests that something should be done in the wording to clarify the matter further to avoid the impression, which Clause 31(2)(a) gives, that the Secretary of State can dismiss the advocate for any reason.

It is possible to develop my amendment a little further—I am speaking off the cuff—to say that the Secretary of State may terminate the appointment for “administrative reasons” or “having regard to the views of victims” or “because the advocate is unfit”, and so on. The point is that one could spell out in this clause a little more clearly what ability the Secretary of State has to terminate the function without undermining the independence of the advocate.

To some extent, one is talking about the confidence the advocate has in exercising what could be quite demanding functions. In the interests of victims, they could be pressing the Secretary of State to do things that may be awkward, embarrassing, expensive, and so forth. It is very important to get this clarified in a way that achieves the commitment the Minister has very helpfully been stressing in his reply to me. I hope we can come back to this. If there is a possibility of discussing this with the Minister and the Bill team, I would very much welcome that. I hope we can pursue it further that way.

[Lord Roborough (Con)]

I reassure the noble and learned Lord that we would like to discuss this further.

[Lord Hope of Craighead (CB)]

I am most grateful to the Minister for that. For the time being, I will withdraw the amendment and we can progress the matter further in discussion.

Amendment 127 withdrawn.