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Victims and Prisoners Bill

Volume 835: debated on Wednesday 7 February 2024

Committee (4th Day) (Continued)

Amendment 112

Moved by

112: After Clause 27, insert the following new Clause—

“Compensation for victims of fraud and other economic crimes(1) The Secretary of State must, within one year of the passing of this Act, lay before Parliament a review of victims of fraud, bribery and money laundering offences.(2) The purpose of the review under subsection (1) is to identify how victims of such economic crimes could be better compensated without such victims needing to pursue civil action.(3) The Secretary of State must provide for a public consultation on the review.(4) In this section “victims of economic crime” includes United Kingdom and overseas victims of complex corruption cases where the harm caused by the offending is not easily quantifiable.”Member’s explanatory statement

This new Clause requires a review to explore how domestic and overseas victims of fraud, bribery and money laundering offences could be better compensated without the need for civil proceedings to recover their losses or compensation.

My Lords, this amendment is grouped with an amendment proposed by the noble Baroness, Lady Brinton, and is supported by the noble Baroness, Lady Bennett of Manor Castle. Unfortunately, she cannot be here, so noble Lords will have to deal with me, and I hope I will not detain the Committee very long. I should declare an interest in that I am a barrister in private practice and some of the work that I do involves fraud, bribery and money laundering offences; at least, some of the clients I represent sometimes become involved in that sort of thing. Sometimes, I act for the Serious Fraud Office in prosecuting and dealing with those accused or thought to have been guilty of such things.

The new clause set out in Amendment 112 is designed to require a review to explore how domestic and overseas victims of fraud, bribery and money laundering offences could be better compensated without the need for civil proceedings to recover their losses or compensation. The terms of the new clause are set out on the amendment paper, so I shall not read it out: it is there for those interested to see.

Just before Christmas last year, in December 2023, a company called Entain entered into a deferred prosecution agreement with the Crown Prosecution Service in response to allegations, which it admitted, that part of Entain had failed to prevent bribery in, most often, Turkey, over a seven-year period. The deferred prosecution agreement that Entain, formerly Ladbrokes, agreed to contained terms which included that it should pay a penalty and a disgorgement of profits of £585 million, plus a charitable donation of £20 million. Prior to that, in the decade or so before the Entain case, multinational companies were fined more than £1.5 billion after investigations by the Serious Fraud Office into corruption abroad, but only 1.4% of those fines, about £20 million, was used to compensate victim countries, according to research by the law firm Reynolds Porter Chamberlain and, in particular, due to the hard work of Mr Sam Tate, a partner of that firm, who, with others in the firm, has made a particular study of this matter. It seems to me that companies that are convicted in this country of offences which have an effect overseas should be required to compensate their victims overseas—we need to change that.

Much of the corruption involved in these cases has occurred in African countries that are already suffering terrible economic hardship from food and energy crises and from inflation. They are in dire need of economic support to repair the damage caused by corruption. Our own Government have been vocal in their support for compensating foreign state victims of corruption, but the action taken to compensate them tells a different story and, if I may say so, leaves us open to charges of hypocrisy.

Most corruption cases brought before the English courts involve foreign jurisdictions. Therefore, this country is stepping in as the world’s policeman and prosecuting crimes that take place in other countries but keeping all the fines for the Treasury here in the United Kingdom. That is important because corruption causes insidious damage to the poor and the not so poor, particularly in emerging markets. The United Nations has said that it impedes international trade and investment, undermines sustainable development, threatens democracy and deprives citizens of vital public resources. The African Union estimated that in 2015, 25% of the continent’s gross domestic product was lost to corruption. Every company convicted of overseas corruption in this jurisdiction should, I suggest, be ordered to compensate the communities they have harmed; that would be both just and effective. Compensation should come through investment in programmes targeted at decreasing corruption and benefiting local communities by, for example, building and resourcing more schools or hospitals.

At first glance, English law encourages compensation. It is required to take precedence over all other financial sanctions—so far, so good—but as with many noble ambitions, problems lurk in the detail. Compensation is ordered in criminal cases only where the loss is straightforward to assess, even though the trial judge is usually of High Court or senior Crown Court level—that is to say, judges who deal with complex issues every day. Let me give the Committee a couple of examples.

In October 2022, Glencore, the international mining and minerals extraction company, pleaded guilty to widespread corruption in the oil markets of several African states. I interpose here to say that in that case, now long over, I represented the applicant state seeking compensation. Glencore pleaded guilty and was ordered to pay £281 million in penalties and further orders, but not a single penny has been ordered to go back to the communities where the corruption happened, because it was held that compensation would be too complicated to quantify and the overseas state applying for compensation had no legal standing in the case. You could say that I was very lucky to be allowed to speak at all during the proceedings, because the statute says that the people who have the legal standing to make an application to deal with compensation are the prosecutor and the defendant company, and I was not representing either of them. None the less, the judge was kind enough and polite enough to let me advance my submissions to him. He rejected them because the statute prevented his acceding to my application.

The second example is the Airbus deferred prosecution agreement case, which tells a similar story. The company was required to pay €991 million to the United Kingdom in fines, but compensation to the numerous Asian companies where the corruption took place formed no part of the deferred prosecution agreement.

The process for compensating overseas state victims, I suggest, needs urgent simplification, so that real money can be returned to them. An answer lies in incentivising the corporations that commit the crimes to pay compensation voluntarily, on the understanding that it would not increase the total amount, including penalties and costs, that they would have to pay. The company could be given further incentive by receiving a discount on the fine that would still be required to the United Kingdom Treasury or an increase to the fine if it refuses or fails to make redress.

The required changes are straightforward and ought to cost the taxpayer nothing. It would create a standard measure of compensation, which would ensure consistency and transparency, as well as avoiding the difficulty of calculating a specific amount of loss or damage in each case. The compensation figure could equal whichever is the higher of the profit made by the company from its corrupt conduct or the amount of the bribes it paid to obtain the profits. This already happens where companies are sentenced, so that the money goes to the Treasury. The defendant company would pay nothing more, but at least some of the money would benefit the victim state.

It would, of course, be naive to think that compensation paid to a foreign state could never lead to further corruption, and it has been suggested that some foreign states might encourage corruption in order to receive the compensation under the scheme that I have advocated, so that the compensation should go into a Swiss bank account or a corrupt overseas Minister’s bank account. That is clearly a risk. To address this, I suggest that defendant companies should be encouraged, or required, to enter into an agreement with the relevant state, which would include obligations to comply with United Nations guidance on the treatment of compensation funds, and to identify projects for which the funds would be used, possibly with the involvement of a local non-governmental organisation. To encourage states to enter into these types of agreements, corporations would be permitted to donate the compensation fund to the World Bank or the International Monetary Fund for projects in the region instead, or to pay down a country’s debt if an agreement cannot otherwise be reached. The benefit of this approach is that, unlike at present, where there is no disadvantage in doing nothing, it puts the onus on the corporation to take restorative action. It also addresses the difficulties in quantifying loss by creating a simple approach that gives companies early sight of the amount that they will have to pay.

These reforms may not need legislation, albeit I know that the Sentencing Act 2020 precludes victims from having legal standing at the end of a criminal case of this nature. This proposed new clause, and this debate, provide, I hope, an opportunity to probe the Government’s thinking. Indeed, what we require is the political will to amend the sentencing guidelines on corporate corruption. If we do this, and if the Government can come forward with their own well-thought-through and well-drafted amendment to the sentencing regime in relation to overseas corruption dealt with in our criminal courts, it seems to me that we can then hold our heads high and enhance our national reputation in the fight against international corruption.

I repeat that this is a probing amendment. I am not expecting an answer of any detailed nature from the Front Bench this evening, albeit my noble friend on the Front Bench is immensely capable of doing such a thing. I urge the Government, through my noble friends on the Front Bench, to give this matter active consideration. It is not a party-political point; it is a point of justice and morality. The time has come for those convicted in our courts here of offences of money laundering and so forth in overseas jurisdictions to pay their victims their due compensation.

My Lords, it is a pleasure to follow the noble and learned Lord, Lord Garnier. I have the second amendment in this group, Amendment 116. The amendments are connected by the word “compensation”, but they are actually about very different issues. Mine is a probing amendment to discuss how the current court-ordered compensation scheme could be improved. I thank the London Victims’ Commissioner and Victim Support for their very helpful briefings.

We know that crime can have a significant emotional and financial impact on victims, and research shows that many victims value compensation as a tangible form of redress. Court-ordered compensation is financial compensation that a judge or a magistrate orders must be paid to a victim by a convicted offender, and the money owed is retrieved by the Courts Service on behalf of the victim. The worries are that the system of payment and enforcement of court-ordered compensation is causing unnecessary distress and frustration, because too often the compensation is paid in very small instalments, over a long period, or, even worse, not at all.

The Ministry of Justice’s paper, Punishment and Reform: Effective Community Sentences, which was published in 2012, sets out that:

“Compensation orders are an essential mechanism for offenders to put right at least some of the harm they have caused. They require offenders to make financial reparation directly to their victims, to compensate for the loss, damage or injury they have caused”.

The problem is the slow payments and poor enforcement. The system of payment and enforcement is adding unnecessary distress and frustration to victims’ experience of the criminal justice system. The piecemeal nature of payments also acts as a constant reminder to the victim of the crime. This point was recognised by the Ministry of Justice, in a 2014 publication, which stated that

“the current scheme of receiving compensation can be distressing for victims because it prolongs their relationship with the offender and can prevent them from moving on from the experience”.

HMCTS has a number of powers at its disposal to collect payments from offenders, including taking money directly from their earnings or benefits, issuing warrants to seize and sell goods belonging to an offender, or, ultimately, bringing an offender back before the courts. Despite this range of powers, collection rates remained low for a number of years. In reality, many compensation orders are never paid, with victims asked by the court to write off the debt owed by the offender.

To put that in context, in quarter 1 2023, the total value of financial impositions outstanding in courts in England and Wales was £1.47 billion, up 3% on the previous quarter and 4% on the previous year. The amount of outstanding financial impositions has more than doubled since quarter 1 2015. However, we recognise that a change in policy regarding the collection of financial impositions is partially behind the cumulative increase, as unpaid accounts are no longer routinely closed, and therefore more outstanding impositions are carried over. The latest available data shows that, 18 months after being imposed, only 53% of victim compensation was paid to victims. Slightly more recent data shows that, after 12 months, only 40% has been paid, with only a quarter of compensation paid to victims within three months.

I move on to an example of good practice in the Netherlands. In 2011, the Government of the Netherlands introduced the advanced compensation scheme as part of the Act for the Improvement of Victims in Criminal Procedure. Under the scheme, the state pays the victim the full amount—up to a maximum of €5,000—of compensation awarded by the court if the offender fails to pay within eight months. The state subsequently recovers the amount due from the offender. Originally, the scheme covered only victims of violent and sexual offences, but in 2016 it was extended to cover the victims of any crime.

Victim Support’s research has shown that many victims are very distressed. One victim of crime said:

“I still have not received any compensation after a year and a half”.

Another said that

“you have to keep going and be persistent with any claims for compensation that you feel you deserve. Why should you be a victim twice?”

My amendment sets out a possible mechanism to replicate the Netherlands scheme, because we need to find some balance. The whole point of this entire Bill is to smooth the journey for victims. This final part—compensation awarded by the court, recognising that they have been a victim and providing them with some redress—is not working for our victims. I very much look forward to hearing from the Minister. Any suggestions he may have, even if he does not think this is right, would be gratefully welcomed.

My Lords, I will speak briefly to Amendment 112. My noble and learned friend’s proposal is an excellent one and I urge the Government to address it promptly and seriously.

Companies and persons convicted of matters affecting those overseas, particularly overseas companies and the countries themselves, should be liable to compensation. It is important that it does not just feed more corruption, but the concept is plainly right. It will put this country in a good place in the world and show leadership on a really important topic, because there is far too much corruption around the world and too many countries turn a blind eye to it.

I urge the Government to take this amendment very seriously. I hope they will have come up with a concrete proposal to endorse it by Report. I commend it to the Committee.

My Lords, I support the probing amendment from the noble Baroness, Lady Brinton, which is an opportunity for the Government to look at court order compensation.

The compensation for victims when they leave a court is not the amount they receive and it takes many years. I will not repeat what the noble Baroness has said—it is on my sheet as well—but, for the victims I meet, compensation causes further problems and trauma. It gets worse if victims apply for criminal injuries compensation, because the court order compensation is deducted from any award that is made. This is fine where the court order compensation is paid, but, if not, the victim is left worse off as a result. I agree that we should look at how the Netherlands pays up front.

I know that there is no money tree but, to make it smooth for victims, instead of being for the offender to hide once again and use as a tool in financial cases for coercive control, I hope the Government will review this court order compensation scheme. I know from speaking to judges that they know that, when they award this, the offender will pay it in dribs and drabs. Now is the time for a good review of this.

My Lords, I will briefly address both amendments.

On the amendment from the noble and learned Lord, Lord Garnier, supported by the noble Lord, Lord Sandhurst, I completely agree with the need for a review and the points made by the noble and learned Lord. His speech dealt largely with corruption, but the amendment deals with bribery and money laundering, which gives rise to significant hardship in countries where it can bite. The weakness of our system is that there is no real provision for proper compensation or properly assessing compensation—even in domestic cases, let alone international ones—where there is a conviction but the degree of loss has not been properly investigated. Noble Lords will no doubt have a great deal of sympathy with the noble and learned Lord, who was allowed to address the judge out of consideration and kindness but had his submissions rejected because there was no legal standing.

The first step the Government ought to consider is acknowledging that these cases for compensation in which it is undesirable to have a full civil case will generally arise where there is a conviction, the facts and culpability are not in dispute and there is no defence, but it may be difficult to assess what compensation is appropriate and what loss there has been. First, victims ought to have the status to be heard on the question of their loss and to apply for a proper order for compensation after conviction. The noble and learned Lord mentioned deferred prosecution agreements, which give wide flexibility as to the terms that can be imposed or agreed. It may be no coincidence that, if my memory is right, he was the pioneer of deferred prosecution agreements when Solicitor-General—he points to the noble and learned Lord, Lord Thomas; there may have been others.

Where there is an ordinary conviction by a criminal court, there is no status for the victim to be heard and no opportunity for the court to determine what the loss was. A detailed investigation may not be called for; in a lot of these cases, the total that would be ordered may well not be paid in any event. However, I see no reason why the court should not have the power to make a summary assessment of loss on a reasonable view of the evidence before it, in order to make an order for compensation. If a claimant then chooses to take civil proceedings and give credit for any compensation paid, so be it. That may not always be the case, and it would be a valuable power for the court to have. The court also ought to have the power to consider other forms of restitution as well as a direct compensation order. This review is obviously necessary; we are in only the first stages of considering it and it will not come into statute as a result of this Bill, but the Committee should nevertheless be grateful to the noble and learned Lord for raising it.

As one would expect, since I am speaking from these Benches, I agree with every word of what my noble friend Lady Brinton said on her amendment. The principal point is that these compensation orders frequently leave victims feeling that they have an order in their favour but are still suffering the hardship of not having it paid or having it paid slowly, and being reminded of the offence far too often. Victims ought to have a say as well. The provision in proposed new paragraph (c) gives the right to approve or refuse the payment of a compensation order to the victim. It is also right that consideration should be given in every case to whether compensation which arises from crime ought to be awarded from public funds and the courts ought to have the power to make that order if necessary.

Finally, proposed new paragraph (e),

“access to legal advice at no cost to themselves throughout the legal process”,

is very similar to the free advocacy from an independent legally qualified person that we discussed in the first group. It is plainly appropriate at this stage of the proceedings.

My Lords, I thank the noble and learned Lord, Lord Garnier, and the noble Baroness, Lady Brinton, for educating me on these two matters. I was not familiar with the issue in our civil courts. The noble Lord, Lord Sandhurst, made a succinct moral point; I thank him and the noble and learned Lord for educating me. If UK plc wants to maintain its position as a leading centre for resolving international disputes between countries and companies, there is a strong moral case for at least reviewing the way in which compensation may be awarded. As the noble and learned Lord said, his amendment is probing and we support it in the sense in which it was moved.

In relation to the amendment tabled by the noble Baroness, Lady Brinton, supported by the noble Baroness Newlove, again I was not aware of the scheme in the Netherlands. However, as a magistrate, I am required to consider compensation for every case I hear, and compensation will take priority over other impositions of the court, such as fines, victim surcharge or costs, or anything like that. When I do so, I am of course extremely aware that I am often dealing with offenders who are on benefits, and even if they are not on benefits, they are often not particularly well paid. It is a fact, which I am not surprised about, that the compensation comes over a long period and often not at all. I take the point that the noble Baroness made about this being a constant reminder to the victim of the offence, and I am aware that sometimes victims are asked to write off the outstanding money which is just not arriving.

The way in which the Netherlands is proceeding is interesting; I do not know whether there has been an estimate about how much money that would cost. It is an interesting idea and I do not know how fully the Minister, when he comes to respond, will be able to talk about the money side of things. The point made by the noble Baroness, Lady Brinton, about reminding victims of the original offence—and we are here talking about the victims Bill and trying to ameliorate their concerns—was well made and deserves a full answer.

My Lords, I thank my noble and learned friend Lord Garnier for raising this issue in Amendment 112. Fraud and other economic crimes have a profound impact on their victims, which is why this Government have been very clear about their commitment to tackle such crimes and to support victims.

The measures in the Bill are designed to improve the experiences of all victims of crime, including economic crimes. One way it seeks to do so is by improving the oversight of service providers’ delivery of all victims’ code entitlements. For victims of fraud in particular, under the victims’ code, all victims who have suffered harm, including economic harm, as a direct result of a crime are entitled to information about compensation and, where eligible, to be told how to claim it. The Government take the compensation of victims of economic crime very seriously, as it is crucial for limiting the harms of these soulless crimes. We are taking active steps to improve reimbursement and compensation routes for victims to ensure that, whenever possible, funds are taken from criminals and returned to victims.

Victims’ interests continue to be a priority issue for the UK. New powers introduced by Part 4 of the Economic Crime and Corporate Transparency Act allow applications for stolen crypto assets or funds to be released to victims at any stage of civil forfeiture proceedings. Work is ongoing to implement these reforms in order to ameliorate the negative impacts of criminal conduct, including economic crime.

In cases where there are overseas victims, as the noble and learned Lord mentioned, the Serious Fraud Office, the Crown Prosecution Service and National Crime Agency compensation principles have committed law enforcement bodies to ensuring that compensation for overseas victims of economic crime is considered in every relevant case, and that the available legal mechanisms are used whenever appropriate to secure it. His Majesty’s Government are also fully committed to identifying potential victims and utilising suitable means to return money and/or compensate victims in line with international provisions, per the Government’s transparent framework for asset returns.

As a signatory to the UN’s Convention against Corruption, the UK places great importance on the recovery and return of the proceeds of corruption to those affected by bribery, embezzlement of public funds, money laundering, trading in influence and other abuses of official functions. The UK is obligated to return funds where the conditions for mandatory return are met. However, it also exercises its discretion to return funds in appropriate cases when it is not otherwise mandated to do so.

On the point raised about UK courts being able to award compensation, this requires a co-ordinated, multilateral approach on how to find resolutions for victims. The fraud strategy sets out ambitions to drive global action on tackling fraud. We are developing stronger partnerships with our allies to raise the profile of this transnational threat, improve our understanding of how it manifests globally, share best practice and lead a co-ordinated, multinational response. This engagement will build towards a global fraud summit in early 2024, where key partners will come together to spearhead a co-ordinated diplomatic and law enforcement approach to tackling global fraud.

Measures in the Criminal Justice Bill, which is progressing through the other place, also considers victims’ interests. Further changes are being made to the confiscation regime, under the Proceeds of Crime Act, to enable swifter resolution of proceedings and improve enforcement planning, allowing victims to be compensated earlier and more fully. I am aware that this does not fully address many of the excellent ideas raised by the noble and learned Lord, which were supported by my noble friend, Lord Sandhurst, and I would suggest a meeting to investigate them further, if that was acceptable.

As I have set out, extensive work is already being undertaken to strengthen the rights of victims through legislative vehicles which are still undergoing implementation. I therefore do not believe it is appropriate for a legislatively required review to be introduced at this time.

On Amendment 116, tabled by the noble Baroness, Lady Brinton, the Government are clear that it is extremely important that victims are aware of their rights, particularly when interacting with criminal proceedings. The current victims’ code sets out in plain language entitlements for victims of crime, including being provided with information about compensation. I hope it is helpful if I provide some information about criminal compensation orders. Criminal courts in England and Wales are, by law, required to consider compensation in all cases involving personal injury, loss or damage resulting from the offence. Where the court chooses not to impose such an order, it must provide reasons. In determining whether to make a compensation order, and the amount to be paid under such an order, the court must consider the financial circumstances of the offender—as alluded to by the noble Lord, Lord Ponsonby—to strike a balance between seeking reparation and not imposing debts that are unrealistic or unenforceable. In line with the sentencing guidelines issued by the independent Sentencing Council, if the victim does not want compensation, this should be made known to the court and respected. However, it is right that the decision whether to award compensation and the amount of any award is a matter for the court. In response to the noble Lord, Lord Marks, and his point about the victim’s right to have a court hear their view on compensation, I think that is an interesting idea to investigate, and it would be good to have a meeting.

In addition to compensation orders, the statutory Criminal Injuries Compensation Scheme 2012 exists to compensate victims who suffer a serious physical or mental injury as the direct result of a violent crime, including physical and sexual assault and domestic violence. Payments under the government-funded scheme can never fully compensate for the injuries suffered but are a recognition of public sympathy.

On expenses and property, victims already have an entitlement under the current victims’ code right 10 to be paid expenses. Victims can claim expenses from the Crown Prosecution Service if they have to attend court to give evidence, including, for example, for travel, childcare and loss of earnings. Right 10 in the current code also sets out that the police should return any property taken as evidence as soon as it is no longer required. The Government do not currently have plans for victims to be paid compensation from central funds. That is because compensation orders are paid directly from the offender, requiring them to make reparation to the victim for any loss, personal injury or damage caused by the offence. The decision whether to make a compensation order in a particular case is a matter for the court, and it has a range of powers for the recovery and enforcement of financial impositions. With the permission of the noble Baroness, I would like to write to give further detail on what actions the Government are taking to improve the enforcement of such compensation orders.

As the noble Baroness will be aware, victims’ cases are prosecuted by the Crown, but we recognise that in some cases legal advice may be helpful—for example, when considering disclosure requests. Therefore, to understand better whether independent legal advice and representation is required, and how that might work in practice, we have asked the Law Commission to explore the merits of independent legal advice as part of its review. This follows a consultation on the use of evidence in sexual prosecutions last year, and we look forward to reviewing the findings on this important issue.

I hope this provides my noble and learned friend Lord Garnier the reassurance that is needed to withdraw this amendment.

My Lords, of course I will beg leave in a moment or two to withdraw my amendment. I am very grateful to my noble friend the Minister for his ability, at very short notice, to deal very elegantly with what I would describe as a long hop. The short point is one I made earlier on—that only 1.4% of the value of fines raised in this country has found its way back, under the mechanisms that he refers to, to victim states. That is not enough. That said, I thank him for his offer of a meeting, which I would certainly like to take up, if I may. I thank my noble friend Lord Sandhurst for his support. I also thank the noble Lord, Lord Marks, for his very thorough response to my suggestions in Amendment 112, and the noble Lord, Lord Ponsonby, for his kind remarks.

The reason why I metaphorically doffed my hat at the noble and learned Lord, Lord Thomas, a moment ago, when the noble Lord, Lord Marks, accused me of being the pioneer of deferred prosecution agreements, is because, yes, as a matter of policy, as a Government Minister at the time, I suppose I was responsible for it. I take some pride in it. However, I could not have achieved it without the co-operation of the senior judiciary. From memory, the noble and learned Lord was president of the Queen’s Bench at the time when the late, much-lamented Lord Judge was the Lord Chief Justice. The two of them, with other members of the senior judiciary, dealt with it impeccably as a matter of legal process. They were not in the least bit interested in the politics—neither was I, actually. We were all interested in trying to make the DPA system work. Thanks to cross-party support in the other place and throughout government, and support from the senior judiciary, the deferred prosecution agreement system came in through statute. I am very grateful to all those who helped with that.

I am in danger of going to the church by way of the moon. This is quite an important subject. It needs thought and proper development. Some ideas need to be tested to destruction, but some need to be given a chance—perhaps through a meeting with my noble friend on the Front Bench and others at the Ministry of Justice—to see which parts of this idea are worth germinating. In the light of all that, I beg leave to withdraw my amendment.

Amendment 112 withdrawn.

Amendment 113

Moved by

113: After Clause 27, insert the following new Clause—

“Duty to inform victims and families of the unduly lenient sentencing schemeAfter section 36 of the Criminal Justice Act 1988, insert—“36A Duty to inform victims and families of the unduly lenient sentencing scheme(1) The Secretary of State must nominate a government department to inform victims and their families of their rights set out in section 36 (reviews of sentencing).(2) The information provided under subsection (1) must include the type of sentence and the time limit for application, and advise that applications must be made to the Attorney General.””Member's explanatory statement

This amendment will ensure that victims are aware of the Unduly Lenient Sentencing scheme which presently has a strict 28-day timeframe in which to apply, there being no power to extend the time.

My Lords, I will speak to Amendments 113 and 114. Amendment 113 seeks to impose a duty to inform victims and families of the right to refer an unduly lenient sentence. Amendment 114 seeks to extend the time, in exceptional circumstances, for such a reference. I begin by declaring my interest as a member of the Justice and Home Affairs Committee.

Currently, the position is that victims have a strict 28-day time limit from the day of passing sentence to make an application under the scheme. The right is simply to have the case considered by the law officers within the Attorney-General’s Office. It is that office which decides whether to take it to the Court of Appeal as an unduly lenient sentence.

The victim, or family, if they are to make use of this, must know in good time of: first, the right to refer; secondly, the time limit for doing so; thirdly, the date when the sentence will be passed, which they have to know in advance; and, fourthly, the sentence itself, if the victim was not present, for whatever reason. At this point, I refer to the noble Baroness, Lady Chakrabarti, who signed this amendment, and who had hoped to be here but has had to leave. As she said very succinctly to me, there is no point in having an unduly lenient sentence regime if victims do not know about it. That is where we are.

Importantly in this context, the 28-day limit is not open to extension, even in special or exceptional circumstances. That is the point of my second amendment. I am informed by Claire Waxman, the Victims’ Commissioner for London, that victims do not always attend sentencing, and often do not receive communication of the fact that they can refer a matter as an unduly lenient sentence or that they have to do so promptly. Of course, offenders can appeal their sentence outside the 28-day time limit, which is on paper there, if they show good cause. There is a statutory exception for them.

However, the revised victims’ code now includes an obligation for witness care units to highlight the scheme to victims, at the same time as informing them of the sentence in their case. That might be a good thing, but it does not go far enough, because witness care units engage only with victims who are witnesses in the court case. This will not apply to a proportion of victims, including bereaved family members. There is no organisation which currently has the responsibility for informing those victims.

In the debate on earlier amendments about training and so on, when I addressed this Committee the other day, I showed that many victims are unaware of the code, unaware of its contents and not kept abreast of their rights. Someone has got to grip this point as well, and make victims aware of their right to refer to the Attorney-General their dissatisfaction with a sentence. They especially have to be informed of the 28-day time limit. They have to know when sentence will be passed and, if not present, what was said.

Let me give a rather stark example of an unfairness that has happened. Alex Belfield received a five and a half-year prison sentence for a campaign of stalking various employees of the BBC. Claire Waxman personally referred that sentence to the Attorney-General’s Office. She considered it to be unduly lenient. A response was received several weeks later that explained that the case had been referred back to the CPS, which had requested the matter to be relisted in the Crown Court under the slip rule. The judge had looked at it again; he agreed that he had erred in his approach to sentencing, but he declined to change it; so that sentence stood. The CPS explained that the time limit for referral to the Court of Appeal had, however, now passed. So the Attorney-General’s Office could not refer this case under the ULS scheme, despite the initial reference having been made in time. It had been made in time to the CPS, but it had not referred it on because the CPS had taken the slip rule route. A possibly—and I do not say it was—lenient sentence, therefore, which might have been referred, stood.

The witness care unit, as I said, does not address non-witnesses. Others also might have reasons for being late. The information for victims given on the CPS website does make reference to the unduly lenient sentence scheme, but it is in there among a lot of other information. It still requires a victim to be proactive, to know that there might be something worth looking for, to think about it, and then to know where to look. That is not really a very satisfactory state of affairs. Something must be done. Making reference to a scheme in materials is very different to actually informing a victim. The witness care unit does not reach all victims, as I have explained. More must be done.

As for the power to extend time, it should be only in exceptional circumstances. I do not ask for anything different, so it is not going to create an open-ended time limit for appeal. The Attorney-General’s Office is the office that decides whether to take it to the Court of Appeal, so it acts as a filter. It will filter out at once all silly and unreasonable applications. If the amendment is granted, the discretion to consider reasons for lateness—whether they are exceptional and so on—remains with the Attorney-General. The Attorney-General is not going to start wading through large numbers of late references. The statutory guidance produced alongside such legislation could provide guidance on what circumstances might be treated as exceptional. Properly managed, therefore, there will not be unfair uncertainty for convicted prisoners who think they got a sentence of a particular length and suddenly are caught by surprise five years later.

Currently, offenders have 28 days to appeal their own sentence, but they have a right to apply to extend that time limit, which in the right circumstances may be granted, in order to appeal. This amendment, therefore, seeks to give some level of parity between the rights of the victim and the rights of the convicted defendant. I commend these amendments; information of rights is essential and power to extend time is only fair. There should be a measure of parity between victims and convicted defendants. I beg to move.

My Lords, I signed this amendment, and it is a rerun for me, as I had similar amendments in the Police, Crime, Sentencing and Courts Bill. Most of the arguments that the noble Lord, Lord Sandhurst, has put forward responded to what the Minister said from the Dispatch Box during the passage of that Bill. These two amendments have been tightened to focus on the real areas of concern. One is not just to inform victims, but also their families; the second is to ensure that the time limit in exceptional circumstances could be extended.

Prior to laying previous amendments, I met Tracey Hanson, whose son Josh Hanson was murdered in 2015. After her son’s killer was sentenced in 2019, no agency made her aware that she was able to appeal the sentence under the ULS scheme. It was only when she approached Claire Waxman, the London Victims’ Commissioner, on the 28th day following the sentencing, that she was made aware of the scheme. Nobody in the system connected with the case contacted her. She was family, obviously not the victim. She submitted her application to the Attorney-General’s Office on the 28th day—that same day—at 8.40 pm. However, this was rejected because it was outside of court hours. At the time, there was no mention of office hours or court hours within the victims’ code or on the Government’s website. Tracey has campaigned for reforms to the unduly lenient sentence scheme, asking for the 28-day time limit to be given flexibility in certain circumstances, such as when the victim or their family is not informed of the scheme. She asked that the scheme be referenced in the judge’s sentencing remarks.

It is worth noting, though, that this still requires statutory responsibility for an agency to communicate those remarks to the victim. Can the Minister respond again—it was not him before; it was his predecessor—to see how we can smooth the journey for victims and families as they go through the judicial process? This particular case is really egregious in having an inflexible time limit for victims and families and yet a flexible one for convicted offenders.

My Lords, I do not want to take much time. I understand, and indeed sympathise with, the thrust of the remarks of my noble friend and the intention behind his amendment. I am sure it is a good idea for people to know about the unduly lenient sentence scheme, particularly if they are victims. In my experience as a law officer who had to deal with these when I was in office, there did not seem to be any lack of knowledge among the people affected by what they thought were unduly lenient sentences, and we had plenty of applications to us in the law officers’ department to consider them. I say in brackets that, as often as not, not every crime or offence qualifies to come within the scheme. A degree of education needs to be made available in order that the public should realise that not every offence that they read about in the newspapers comes within the unduly lenient sentence scheme.

The other point that needs to be got across to people is that “unduly lenient” does not mean that the victim, the member of the public, or the reader of the newspaper who reads a report of the conviction and sentencing of a defendant, would have sentenced the person to a higher sentence. There has to be, essentially, a gross error, where the judge takes the sentence outside the sentencing guidelines unreasonably or without providing a reason—sometimes there is a good reason for taking a case outside the sentencing guidelines. I would not want my noble friend to think that, by making sure that there is greater publicity about the unduly lenient sentence scheme, it will necessarily solve the problem of people thinking that sentences for this particular offence are not high enough.

Part of the object of the amendments is to ensure that the scheme is published and explained. That is one of the reasons why there is a reference to making sure that, in the judge’s sentencing, he or she refers to the scheme, and then victims and families can be provided with information as they leave the court, or it can be sent to them if they are not there.

I cannot quite see the wording that the noble Baroness refers to, but I am not sure I think it a good idea for a judge, having promulgated a sentence, then to say, “If anyone doesn’t think I’ve given them enough, perhaps you’d like to complain”. The judge must make his or her own mind up, based on the information in front of them, and do justice in that particular case. If the prosecutor, a witness, the victim or a member of the public wishes to say that that is unduly lenient, they can write to the law officers and see what their consideration of the matter is.

I agree with publicity and with educating everybody about what the system is about. However, I do not agree with encouraging everybody to run to their Member of Parliament, the newspapers or the law officers because they wish the sentence had been different. That way leads to disappointment, quite apart from a bureaucratic mess in the law officers’ department—which is a very small department.

My Lords, I raise an issue with regard to the time limit. It is not from the wording of the amendment, which I support, but the wording in the victims’ code. At the moment it says that, first:

“The Attorney General must consider the matter as soon as possible”.

What does that mean? Secondly, it says that they must do so

“no later than the 28th calendar day after the sentence was imposed … in business hours and”—

I emphasise this—

“with sufficient time for consideration”.

How can the victim know how long the Attorney-General needs before the 28 days runs out? It is a hard cut-off, but with something rather woolly leading up to it. The victims’ code could do with a little revision to make it quite clear, in addition to the points that my noble friend has made and the very tough example that she gave, just how this would operate. I would not know, to meet that condition, how long before the end of the 28 days I should get a note through the Attorney-General’s door.

My Lords, I support the principle put forward by the noble Lord, Lord Sandhurst, that there should be proper information provided to victims. This should be proper in the widest sense, so that they fully understand; we do not want disappointment and secondary victimisation. The whole question of time limits and extending them is not a suitable matter for debate at this hour of the night. What is important is the principle.

My Lords, I have noticed the time as well, and the points that I was going to raise have already been made. I will talk about how it feels, as a victim in a murder trial, to hear, after sentencing, all these professionals say that the offenders, who have been found guilty and sentenced, will now appeal their convictions and sentences. But nothing goes in, and the clock is ticking.

When we are looking at extending times and providing information, we are talking about an area that we all know about to a degree, but the victim does not understand unduly lenient sentencing. It is actually the media that leads the way. I think we need to look at this again. We now have flexible working hours, so who is going to pick up the inbox if nobody is in until the next day? We need to be more creative in how we do this. To tell the victim, such as Tracey Hanson, that they are out of time is not a fair and level playing field. If the offender has a legal advocate to do all the paperwork, and does not have to lift a finger, maybe we need a legal advocate to help the victim understand. We can say that people should go on the website and read this, that and the other, but they are traumatised and still trying to get their heads around what they have just listened to in court.

My Lords, I apologise for the previous explosion from my phone—I was just making sure that you are all paying attention.

This is one of those groups—we have already had a couple of such occasions during this Committee—where you look at it and think, goodness me, why is that not happening already? Why is that not being done, when it is so obvious that it should happen? Like in many of the other cases, it comes down to the question of whose responsibility it is to make sure that the victim is properly informed, and their family properly supported, to know what is going on. It would be great if the Minister could tell us what the answer to that question is, as it is kind of at the heart of everything we have been discussing so far. I look forward to hearing the answer.

My Lords, I thank my noble friend Lord Sandhurst for Amendment 113, in relation to the unduly lenient sentence scheme. It seeks to ensure victims and their families are given the necessary information about the scheme and, where this does not happen, provide for an extension of the relevant deadline. I understand the distress that victims may feel if they believe that the sentence given to an offender is not sufficient. The unduly lenient sentence scheme provides a way to ensure that victims, their families and members of the public can request for sentences for certain serious crimes to be challenged, by asking the Attorney-General to consider making an application to the Court of Appeal for a sentence to be reviewed.

Amendment 114 seeks to allow extension of the time limits for applications under the scheme, which must currently be made within 28 days of sentencing. However, the scheme has a fixed time limit to reflect the importance of finality in sentencing for both the victim and the offender. Although we will keep this this limit under consideration, there are no current plans to remove the certainty of this absolute time limit. The 28-day time limit reflects similar constraints on defendants appealing against conviction or sentence; it is important for both victims and offenders that we avoid ongoing uncertainty about the sentence to be served.

Amendment 113 puts forward a duty to inform victims and families of the scheme. It might reassure my noble friend to know that the current victims’ code is already clear that victims should be informed about the scheme by the police’s witness care units at the same time as they are told about the sentence; this is expected to be done within six days of sentencing. It may also help if I explain that “witness care unit” is the generic name for a police-led function that provides information and support to victims, as well as witnesses, in cases progressing through the criminal justice system. Under the victims’ code, the witness care unit is responsible for providing services to victims who are not witnesses in the trial, as well as those who are.

For example, under right 9 in the code, all victims are entitled to be told at the end of the case the outcome, including a brief summary of reasons for the decision where available. This also includes telling victims about the ULS scheme when they are told the sentence in the case, which is in paragraph 9.6 of the code. It is heartening to hear from the noble and learned Lord, Lord Garnier, that the scheme is well used, despite examples of where it has not worked being given by others in this short debate.

In answer to the noble Lady Baronesses, Lady Brinton and Lady Thornton, as part of the CPS’s bereaved family scheme, the CPS and the trial advocate will meet the family at the court following the sentence to explain it and answer any questions. The scheme will be highlighted in appropriate cases as part of this.

My noble friend Lord Sandhurst raised an unfortunate case in which consideration under the slip rule means that 28 days had elapsed. In general, the law officers and the Attorney-General’s Office endeavour to review any sentence referred to them, the only exception being those where there is insufficient time to do so; for example, if it is received late in the day, the statutory time limit runs out. In those cases where the slip rule applies, CPS guidance instructs prosecutors to apply for the sentence to be corrected under the slip rule quickly and within the 28-day period for the ULS scheme. This means that, if the application is unsuccessful, the Attorney-General is not time-barred from being able to make an application under the ULS scheme within the 28-day period.

Where there seems to be broad consensus in this debate is on the need to do better on informing victims and their families about their rights under the scheme. This has been brought up by the noble Baronesses, Lady Brinton, Lady Hamwee and Lady Newlove. I am open to discussing further with noble Lords how best to ensure that victims are better informed of the scheme and its deadline, but I respectfully ask that my noble friend withdraw his amendment.

My Lords, would it be possible for the Minister to find out whether the police keep records of the notification of the witness unit and, if the records are kept, what the statistics reveal? This is really an argument about whether we have the right mechanism, rather than the principle. Obviously, the Minister cannot do that this evening, but if the Ministry of Justice or the Home Office could find out, that would alleviate the problem.

My Lords, I am grateful to various noble Lords for their support, the points that they have made, and, if I may say so, the very sensible suggestion from the noble and learned Lord, Lord Thomas, about collecting data.

If I may comment on my noble and learned friend Lord Garnier’s observations, they show that good information is necessary. It is absolutely essential. He says that these are simple and reasonable obligations; in which case, they must be explained to everybody. The guidance should set it out, and it should say simple things such as: “The Attorney-General has only 28 days in which to lodge a reference. If you are minded to complain about the sentence, you must do so straight away so that the Attorney-General has time to consider it properly; otherwise, I am afraid that there is no prospect of a reference being made”—something to that effect.

As for the extension of time, I hear what is said. It will be only in exceptional cases, and it will be the Attorney-General who decides. I just do not see what the problem is. If it is there and remains because the Government do not change it, it is really important that proper information is given.

I am grateful for the answers given by my noble friend Lord Roborough, standing in on short notice and dealing with these rather tricky little points. In the circumstances, having heard what has been said, I will withdraw my amendment. But I really do hope that something can be done, administratively at the very least; that we can receive proper assurances that victims and particularly those who are not witnesses, such as the bereaved and so on, really are told properly; and that a log is kept showing that they have been told—when and where and in what terms. I beg leave to withdraw.

Amendment 113 withdrawn.

Amendments 114 to 119 not moved.

Clause 28: Meaning of “major incident” etc

Amendment 119A

Moved by

119A: Clause 28, page 29, line 23, leave out paragraph (a) and insert—

“(a) occurs or occurred in England and Wales,”

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.

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.

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.

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.

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.

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.

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.

Amendment 121

Moved by

121: After Clause 28, insert the following new Clause—

“Victims of major incidents: registration of deathThe Secretary of State may by regulations make provision for a relative to provide information in the connection with the registration of the death of a person who was a victim of a major incident, even if an investigation is conducted under Part 1 of the Coroners and Justice Act 2009.”Member's explanatory statement

This is a probing amendment concerning the need for a qualified informant such as a relative of the deceased to be permitted to provide information to register the death after a major incident.

My Lords, in many ways, my Amendment 121 continues the discussion about the victims of major incidents; in fact, I think we have a suite of amendments that talk about the issues that surround those who have been involved in major incidents, whether they were quite some time ago, as my noble friend Lord Wills said, or more recently.

I refer to the work of my honourable friend Emma Lewell-Buck, as she raised this issue in the Commons. This is a probing amendment, because it is important that we start this discussion, and I think that everybody is aware that the issues of registering deaths are not uncomplicated. When she raised this in the Commons, the Government said that they

“intend to launch a full public consultation on the role of the bereaved in death registration following an inquest, including those impacted by a major disaster”.—[Official Report, Commons, 4/12/23; col. 138.]

In the Commons, the Minister told my honourable friend that it was no longer possible to accept her amendment

“due to the Data Protection and Digital Information Bill, which will digitalise death registration”.

I report that, because my honourable friend said that her amendment would

“give the Secretary of State the power to modify any provisions, which would enable the clause to be shifted to a digital state in future”,—[Official Report, Commons, 4/12/23; col. 122.]

and the Minister at the time said that the Government were incredibly sympathetic to the purpose.

I will relate the reason why this is important. My honourable friend has been campaigning for this change for some time on behalf of her former constituents Chloe Ann Rutherford and Liam Thomas Allen-Curry, who were murdered in the 2017 Manchester Arena attack. She explained in her speech, which is on record, that in 2022, after sitting through the public inquiry and listening to every agonising detail of what their children went through, Chloe and Liam’s parents were told that they would be denied that right to register their children’s deaths due to outdated legislation that states that, where deaths require an inquest or an inquiry, death registration is to be done solely by the registrar. All that those devoted parents wanted was to be part of the final official act for their precious children, but they were denied that.

After meeting the Minister, they were given assurances that he would look urgently at whether and how those changes could be made. Emma Lewell-Buck said:

“With each change of Minister”—

of course, that has been a feature of some ministries in this Government—

“the promises continued, yet nothing has changed”.—[Official Report, Commons, 4/12/23; col. 122.]

In February 2023, the bereaved families attended yet another meeting with Ministers, at which they felt they were treated with contempt, patronised and insulted, and that it was clear that they been misled by the Government for nearly a year, because despite it being entirely possible to change the law, the Government simply did not seem to want to do so.

In June 2033, Chloe and Liam’s parents watched, after six agonising years following their children’s death, as they were registered by a stranger. I think that is not acceptable, and that is the situation that this amendment seeks to change. I think it is not a very big change, myself, but I think it is something that the Government need to do for those families who want to be involved in the registration of the death of the victims of a major incident. I beg to move.

My Lords, I support this amendment. The Manchester Arena terror atrocity in 2017 chilled every parent in the country. When you watch your children head off to a concert or a party, excited and happy, you are never at ease until they are safely home. I have met many victims from this concert, and I have to say that it saddens me every time I hear about it. What happened that night is every parent’s worst nightmare and our hearts go out to them. We can only imagine their grief, which is still there today, and it is a loss from which they will never recover.

All of us in this Committee will want to be sure that these parents have all the support they need—this is what the Bill is all about. It is therefore deeply upsetting to hear that, after these parents sat through what must have been a harrowing public inquiry, they were then told that the registration of their children’s deaths would be done not by them but by a local authority official. This is bureaucracy at its most cold. The treatment of bereaved families by the state will always have a profound impact on their recovery. For those parents, being able to register their children’s death was, for them, an important step in their grieving process and it should be their right, as the parents, to have that facility.

It would appear that under the Home Office’s Births and Deaths Registration Act 1953 and the Ministry of Justice’s Coroners and Justice Act 2009, it is standard practice for a registrar to register deaths involving an inquest or inquiry. I understand that, if a person dies in usual circumstances, such as due to a health condition, a close relative can personally register their death. I did that in September for my mother, so I know that it is important. However, I am told that if they die in a major incident, it falls to the registrar. I also acknowledge that not all relatives want to register the death of a loved one, as in most cases, an interim death certificate is given soon after the incident for funeral arrangements —something I know about personally as well—but I want to see families being given a choice.

Having been to see so many Ministers is an insult: not just that they have been told “Yes, yes, yes” and then something else has been done, but every time they speak to a different Minister, it drains them. That they are having to explain, as parents who have lost children in the most horrendous way, beggars belief. What I am asking the Government and the Minister—all that is being asked for in this amendment—is that they be given that choice: that an extra space be found in the toolbar for the certificate, so that when a close family member wishes to be noted on the certificate, this can be achieved, without interfering with the coroner’s findings.

I understand that, sadly, it is too late for the victims of the Manchester Arena bombing, but I feel sure it will bring some solace to them that they have achieved something for future victims and can actually say “Goodnight” to the children they have lost.

My Lords, I wish briefly to add my support to this amendment. It seems to me that there is no good reason why the amendment should not be passed. We have heard from the noble Baronesses, Lady Newlove and Lady Thornton, about the emotional effect of suffering deaths of relatives in major incidents. It is quite clear that the emotional impact is severe. It is also quite clear that some alleviation, some relief, may be found in the process of registering the death. Why on earth should a relative not be able to register the death if they so choose? For that reason, I can see no reason to resist this amendment.

My Lords, Amendment 121, tabled by the noble Baroness, Lady Thornton, is intended to establish a regulation-making power to allow a qualified informant, typically a relative or close friend, to provide information to register a death where the death is the result of a major incident. I thank the noble Baroness for this intervention on such an important and complex issue. I also pay tribute to the Member for South Shields and the right honourable Member for Garston and Halewood for their commitment and determination in championing this cause on behalf of the families bereaved by the Manchester Arena attacks. I also extend my deepest condolences to the families who lost loved ones in that terrible incident.

The Government are committed to ensuring that bereaved people remain at the heart of the inquest process and are able fully to participate in it. Bereavement is never easy, but it is inconceivably difficult to lose a loved one in circumstances which, by definition, are unexpected and traumatic, so we fully understand the importance for bereaved families of having a role in the registration of their loved one’s death following an inquest. For them, as for all who are bereaved, this could be a vital part of the grieving process. In this regard, I agree with many of the comments from my noble friend Lady Newlove.

However, it is also our responsibility to uphold the integrity of the inquest process. While all deaths must be registered, not all deaths will be investigated by a coroner. Deaths which are subject to a coronial investigation and include an inquest cannot be registered until the inquest has concluded. That is because in such cases the inquest is where all the facts including the personal details of the deceased and the cause of death are established. The legislation requires the registrar to register the death following the receipt of a certificate from the coroner. The registrar has the sole responsibility to register all deaths.

The amendment does not disapply the registrar’s statutory duties in this regard and would exist alongside those requirements. So, while I fully understand and sympathise with the intent behind it, it is unclear what the statutory purpose of the relative’s provision of information and the status of that information would be.

In answer to the noble Lord, Lord Marks, I believe that there are a number of good reasons why we will not accept this amendment. We must be mindful that an amendment of this kind could inadvertently undermine the integrity of the inquest process, in particular where the bereaved family is not in agreement with the coroner’s conclusion at the inquest. Furthermore, the amendment is limited to those bereaved by a major incident. The distress of losing a loved one in this way is unimaginably difficult. However, I do not believe that it is right that we legislate for this now, knowing that there would be many who would not be able to utilise the new provision.

While I am sympathetic to the purpose behind the noble Baroness’s amendment, the Government cannot support it for the reasons I have given. That said, we are very aware of the sensitivities surrounding this issue and it is important that we identify the most appropriate way forward. In doing so, we must also take into account the practical implications of other legislation, such as the Data Protection and Digital Information Bill—referenced by the noble Baroness, Lady Thornton—also currently before this House, which will enable implementation of remote delivery of registration processes in the near future.

For these reasons, I can confirm that—as my ministerial colleague the Minister for Prisons, Parole and Probation announced in the other place—the Government will undertake a full public consultation, as soon as practicable, on the role of the bereaved in death registration following an inquest. This will enable us to gather a wide range of views on potential ways forward. I hope that the noble Baroness will welcome my reiteration of this commitment, even if it goes no further as she has asked, and that, together with the Members who continue to champion this issue in the other place, she will work with the Government as we seek a solution to this sensitive and complex issue.

I thank the noble Lord for that answer. If I understood him correctly, his key point was that there is concern that the registration process might be compromised, but he did not say how. I do not understand how that could be. There is no question that the death must be registered, and bereaved families know that that cannot happen until the inquest has been completed, even if it takes years, as it sometimes does. I do not understand how that process would be compromised under these circumstances. I would be reassured if I thought that the consultation the Government are initiating will ask that question and work out how to solve that problem.

It might help the noble Baroness if I wrote with a fuller explanation of how it could compromise that process.

That would be useful to the Committee, because then the legal eagles behind me and on other Benches could look at it and see whether it holds water. The noble Baroness, Lady Newlove—whom I thank for her support—and I are not convinced. However, I beg leave to withdraw my amendment.

Amendment 121 withdrawn.

House resumed.

House adjourned at 9.41 pm.