Lord Hope of Craighead:

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”

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.

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.

I support the amendment of the noble and learned Lord, Lord Hope. There can be no disputing that independence is key, and it would be very sensible if the Bill was slightly amended to refer to the independent standing advocate, or something of that kind. Independence not being in dispute, the issue is how to safeguard it. Normally, independence is achieved by three things: the first is a process of appointment, which we have already discussed; the second is the provision of resources—again, that has been raised but I am not sure whether it has been entirely dealt with; the third, and most critical, is removal. It seems to me that that is what this amendment is concerned with.

There are two ways of removing to ensure independence: one is to specify the grounds in the Bill, while the other is to derive an independent process. One or the other will work. There are all kinds of processes, such as an independent parliamentary process or an independent tribunal. But bearing in mind the uniqueness of this post, it may be best to look at specifying in the Bill the grounds for removal. That is a matter for discussion and debate.

I do not wish to add anything about Amendment 129, save to support it, but I would add one observation on Amendment 132. It is critical to show that everything is open, and that if the standing advocate is to issue guidance, such guidance is made public. We do not want, in this area, questions relating to what is going on without the victims having full confidence.

My Lords, I shall be relatively brief on this short group of amendments. I stated my support for the amendment of the noble and learned Lord, Lord Hope, in advance, in principle, during debate on the third group. I apologise for mentioning his amendment before he had had an opportunity to speak to it. However, his reasoning was a development of the reasoning that I then expressed. I reiterate his point: for an independent advocate system to work, the advocate must be independent. I take the point of the noble and learned Lord, Lord Thomas of Cwmgiedd, that if “independent” has only appeared, or might only appear, by virtue of the amendment of the noble Lord, Lord Ponsonby, that is wrong. We have all called it independent because the independent public advocacy scheme is a term that has been frequently used. The word “independent” ought to appear in the Bill specifically, and the independent standing advocate could be called exactly that to make the point clear.

That means that such an advocate must be able to advance the victims’ interests without a concern that they are liable to be removed by the Secretary of State without very good reason. For such reasons

“as the Secretary of State considers appropriate”,

which is the wording used in the Bill, is just not good enough. Nothing less than the formulation of the noble and learned Lord, Lord Hope, of them being

“unfit or unable to fulfil their functions” will do as a justification for removal.

I take the point made by the noble and learned Lord, Lord Thomas. This could also be achieved by a process for termination, not simply by the grounds for termination. Those are not necessarily alternatives; we could have both approaches. I suggest that the Government ought to consider whether the process should not be strengthened. To make the point I have made before, the Bill is shot through with the difficulty that the interests of the victims may conflict with the interests of the Secretary of State. That important conflict of interest can be resolved only by removing power from the Secretary of State.

I turn to Amendment 129 in the name of the noble Lord, Lord Ponsonby, which proposes that office facilities may be afforded by the Ministry of Justice, provided that they do not compromise the functional independence of the standing advocate. That is another point on independence. It is plainly administratively convenient and may be necessary that the Ministry of Justice provides the office facilities, but that does not mean that the bodies are not completely separate, and they must be.

Amendment 128A in the name of the noble Lord, Lord Wills, to which I have added my name, was moved into the second group, but Amendment 129 remained in this group although they are on similar subjects. The noble Earl, Lord Howe, said that the noble Lord, Lord Roborough, would answer on Amendment 128A. The point I made was that proper secretarial support and resources are crucial for the standing advocate if the system is to work. The noble and learned Lord, Lord Thomas, made the point about resourcing in general terms but made it very powerfully. Appropriate support is essential for the role to be properly done, as are statutory guarantees of adequate resourcing.

Amendment 132 in the name of the noble Lord, Lord Ponsonby, deals with guidance to other appointed advocates on what matters they should consider in relation to a major incident. It is not right that such guidance should come from the Secretary of State. The Secretary of State may have interests in diverting attention to some aspects of a major incident against the interests of considering others. Guidance should come from the standing advocate who has, as the noble Earl, Lord Howe, put it earlier, a leadership role. That is the proper source of such guidance and not the Secretary of State, who has a political interest that may be opposed to the interests of the victims. I suggest that the Bill’s formulation on this is simply quite wrong in principle.

My Lords, I thank the noble and learned Lord, Lord Hope of Craighead, for his amendment. This group of amendments concerns the independence of the advocate, and therefore I will discuss them together.

First, the amendment from the noble and learned Lord, Lord Hope of Craighead, seeks to limit the discretion of the Secretary of State as to the grounds on which an advocate’s appointment in respect of a major incident may be terminated. I believe it will be helpful if I explain the rationale behind the current provisions in the Bill. I hope that the noble and learned Lord will be reassured that this power will be used carefully.

There are a number of scenarios in which we envisage the Secretary of State exercising their discretion to terminate the appointment of an advocate. First, for the scheme to be as agile as possible, it is important that we can adapt the resource required to support victims. No major incident is the same, and the processes that follow can often take years to conclude. During this time, there will likely be peaks of activity when it may be prudent to increase the number of advocates actively supporting victims. Following these peaks, it is only right that the Secretary of State has the ability to scale back the scheme to be proportionate. This power enables the Secretary of State to do that effectively.

Secondly, we have always stressed the importance of being able to deploy an advocate as quickly as possible following a major incident. It may be appropriate, following a greater understanding of the developing needs of the victims, to substitute one advocate for another who may be better suited by virtue of their skills or expertise. The Government believe that having this flexibility is important. This amendment would diminish the Secretary of State’s ability to ensure that victims have the best possible representation.

Thirdly, as we have heard throughout the various debates on this part of the Bill, it has been highlighted that victims must have confidence in the advocates for them to be effective. The Government therefore anticipate another use for this power: to remove advocates who may not command the confidence of victims, as touched on by the noble Lord, Lord Marks, in the debate on the previous group, or stand down any advocates towards the end of official processes because victims no longer want or need support from the advocate.

To go a little further, the reasons why the Secretary of State may terminate an advocate’s appointment could also include a lack of capacity, misbehaviour or a failure to exercise their functions in accordance with their terms of appointment. These terms of appointment, including the potential grounds for termination, will be published. The views and needs of victims are incredibly important. A strong emphasis will be placed on the support needs of the victims, and decisions on the termination of an advocate will always be made with these in mind. Therefore, while I understand and recognise the intent of the noble and learned Lord’s amendment, the Government believe it is necessary for the Secretary of State to have a wider discretion in this area.

I completely agree with the noble and learned Lord, Lord Hope, that independence is critical. We believe that the Bill protects that. However, there was a constructive suggestion from the noble and learned Lord, Lord Thomas, that “independent” be added to the definition of the advocate in the Bill. I will take that away to the department.

The amendment from the noble Lord, Lord Wills, would impose a duty on the Secretary of State to provide the advocate with

“secretarial and all other support necessary for them to exercise their functions effectively”.

While he is not in his place, I would like to answer the noble Lord, Lord Marks, on this point. The advocates will be supported by a permanent secretariat, and the Ministry of Justice has already allocated funding for this. Clause 31 provides for an effective system of support for the independent public advocate by making provisions for a secretariat and remuneration. Work is already under way to provide the advocates with this secretariat and to ensure appropriate separation between them and the Ministry of Justice.

I will take the amendments from the noble Lord, Lord Ponsonby, in turn. The first seeks to make it clear in the Bill that advocates will sit within the Ministry of Justice for administrative purposes but be operationally independent. While I support the intention and spirit behind this amendment, the Government do not believe that this is necessary as this is already our intention for how this new statutory office will operate. Furthermore, the wording of this amendment may not best achieve its goal. It is generally not helpful to refer to government departments by name in legislation, due to any potential machinery of government changes.

The Government are committed to the operational independence of the standing advocate and any advocates appointed in respect of a major incident. The Government took steps to bolster the advocate’s independence earlier in this Bill’s passage by empowering them to report independently and at their own discretion. The legislation is also clear that the advocates will make decisions and utilise their experience to provide support to victims of a major incident in a manner they deem appropriate.

The other amendment from the noble Lord, Lord Ponsonby, seeks to transfer the power to issue guidance to advocates appointed in respect of a major incident from the Secretary of State to the standing advocate. I reiterate the Government’s commitment to the operational independence of the standing advocate and any advocates appointed in respect of a major incident. They will be empowered to take decisions and utilise their experience in a manner that the advocates deem appropriate. However, given the nature of major incidents and the unpredictability of the future, we believe that the Secretary of State’s ability to issue guidance is crucial to future-proof the scheme. The Government are mindful that guidance issued by the Secretary of State should not have any effect on the independence of advocates, which is why Clause 38 specifically prevents this guidance being directed at any specific advocate or incident.

I also underline that guidance issued under Clause 38 cannot limit or alter the advocates’ functions, as outlined in Clause 33. However, we expect that the advocates’ role will develop over time, and it is important that the Secretary of State can issue guidance to help support them, and to ensure consistency in the support they provide to the victims of major incidents. We imagine, for example, that advocates may find it useful for such guidance to include how they may indirectly support victims under 18, or on working with victims or their families who do not speak English or do not reside in the UK.

I turn to the specifics of the noble Lord’s amendment. In practice, the standing advocate will, in most cases, be appointed by the Secretary of State as the advocate in respect of a major incident. This amendment, therefore, which allows only for guidance by the standing advocate to apply to other advocates, would be applicable only where the Secretary of State appoints multiple advocates. We have already made provisions under Clause 32 for a lead advocate in these situations to provide structure, guidance and accountability.

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.

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.

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

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.

Amendments 128 to 129 not moved.

Clause 31 agreed.

Clause 32 agreed.

Clause 33: Functions of advocates appointed in respect of major incidents