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Public Advocate Bill [HL]

Volume 830: debated on Friday 16 June 2023

Second Reading

Moved by

As some noble Lords may remember, this is the second time I have moved that this Bill be read a second time. The first was more than seven years ago, when it received wide cross-party support. I then outlined how the Bill, which provides better support for victims and families bereaved in public disasters, had grown out of my experience as a Minister who devised the Hillsborough Independent Panel. This Bill has been on quite a journey since then.

The concept of an independent public advocate to support victims of public disasters and families bereaved in them, which is the heart of the Bill, was adopted by the then Prime Minister, the right honourable Theresa May. I pay tribute to her steadfast and continuing support for this concept. She ensured that it was part of the Conservative Party manifesto in 2017 and in the following Queen’s Speech. Since then, Ministers and a consultation came and went, the years went by and nothing happened. My right honourable friend and colleague in the other place, Maria Eagle, repeatedly and heroically introduced a Private Member’s Bill derived from this one in the other place and still nothing happened, but finally, this year, the Government incorporated some elements of my Bill—this Bill— into the Victims and Prisoners Bill, and I place on record my thanks to everybody in the Government, Ministers and officials, who made this happen. I am grateful for their unfailing courtesy over the past seven years in consulting me about this Bill. However, welcome as the Government’s proposals for an independent public advocate are, they are none the less based on the fundamentally flawed assumption that the system as a whole works generally well on behalf those bereaved by, or otherwise victims of, large-scale public disasters such as Hillsborough, so no radical change is needed, merely some improvements around the edge. That is what their proposals represent in contrast to the proposals in this Bill.

If that is indeed the Government’s assumption, I am afraid it is wrong. The fact that, finally, the families bereaved at Hillsborough have been able to achieve much of what they campaigned for over so many years—decades—should not lead to any complacency about the systems currently in place to respond to such public disasters. When the full record of what happened after the Hillsborough disaster is eventually made public, it will show, I believe, how the successful outcome of the Hillsborough Independent Panel was the result of a whole series of fortunate coincidences. There was nothing inevitable about it. Above all, it was the extraordinary persistence, dignity and solidarity of the Hillsborough families’ campaign that generated the momentum that led to the panel and its achievements. This will not necessarily be replicated in similar situations in the future. The system remains fundamentally broken in the support and agency it offers such families.

Now, the government Bill will make progress. Regretfully, I must assume that mine will not in the same way. As a result, I do not intend to rehearse the detail of my Bill in the way that I did seven years ago. Instead, I want to focus on the crucial elements of this Bill that the Government have omitted from their own and to urge them to think again.

Sadly, we must assume that such tragedies involving large-scale loss of life will recur. My Bill seeks to provide a better way of responding to them and does so on the basis that there is an identifiable pathology in the process that follows pretty much all public disasters. The nature and extent of a public disaster demands a response from government. The same questions are asked: who is to blame? What can be done to prevent it happening again? Finding the answers does not put the bereaved families anywhere near the centre of that process. The state naturally assumes for itself the dispensation of justice and the needs and wishes of victims, including the bereaved, are not always paramount. As the process unfolds, there is an inevitable tendency for those in official positions, with all the resources at their disposal, who fear that they might be blamed in some way for what happened, to close ranks. They often skew the results of any investigation, as they are in a position to do so, often funded by the taxpayer. The report of the Hillsborough Independent Panel graphically illustrated this pathology in action, in the way it exposed the behaviour of the police, but it is not only the police that are susceptible to these sorts of behaviours.

As I said seven years ago,

“the interests of justice and good government would not necessarily be best delivered by removing the state altogether from the process of responding to public disasters”.

That clearly is not the case. I said:

“The challenge, therefore, is to strike a better balance between the impartial discharge of justice and good government and protecting the interests and feelings of the bereaved and injured survivors”.—[Official Report, 29/1/16; col. 1521.]

My Bill seeks to establish three pillars of a new system. The first is transparency. Without it, the bereaved will never achieve anything approaching closure and it is difficult, often impossible, for the public policy lessons to be learned and for necessary reforms to be made. The second pillar is the creation of an institutionalised, independent, adequately resourced advocate for the bereaved. Those bereaved in future public disasters should not have to rely on ad hoc remedies such as those that, in the end, delivered some progress for those bereaved at Hillsborough. Finally, the third pillar is the need to ensure that victims and the bereaved have some agency in the process. No longer must they be left on the sidelines, dealing with grief and loss while the state proceeds, apparently on their behalf but without giving them any agency in the process.

The Government have adopted only one of those three pillars, and that only in part. Their proposals do not provide any guaranteed mechanism for securing full transparency, such as that achieved by the Hillsborough Independent Panel. They deny the victims and the bereaved any effective agency. In giving them power to set up an independent public advocate, the government Bill gives the Secretary of State unfettered discretion about whether to appoint one. It gives them similarly unfettered power to dismiss them. They have unfettered powers over whether to appoint a Hillsborough-type panel to secure transparency. Moreover, it appears that the advocate, in its proposals, may produce a report only if the Secretary of State requests it.

The government proposals mean that the victims and the bereaved are being given no effective agency and that transparency might well be obscured. That is precisely what my Bill seeks to achieve. Now, the government view appears to be that, as the Government are democratically accountable, they must be able to wield the executive power for which they will be held to account by government and the electorate. This is not an unreasonable position at all, but it does not mean, in adopting that position, that they have to deny bereaved families any effective agency at all in these matters, which is the current position; nor can they justify any failure to maximise transparency, which, again, appears to be the current position. My Bill could easily be amended, and the Government could easily adopt it, to deal with these problems with the Government’s proposals.

One way forward, for example, might be to give the Secretary of State a legal power to appoint an independent public advocate and/or a public inquiry, but to specify in a way that would be subject to judicial review that they must do so with regard to the views of the bereaved families. The benefits of an independent public advocate, an inquiry and/or a Hillsborough-type panel include cost, timeliness, transparency and any wider public interests.

The points about cost, timeliness and transparency are crucial. One of the lessons of the Hillsborough public inquiry is what it achieved, even 20-odd years after the event, more swiftly and more cheaply than the two public inquiries that preceded it. It would be a much more effective way of securing public policy goals in my view, which is why my Bill is drafted as it is.

Crucially, the Bill also includes the provision that the Secretary of State must produce a debateable report to Parliament justifying why they have or have not exercised this power. That must be published as soon as possible after the public disaster. Any delay at all will only compound the grief and sense of loss of the bereaved families.

The families bereaved at Hillsborough have fought a dignified and indomitable campaign for decades to secure truth and justice for those who they lost. They were traduced in the popular press, particularly by the Sun newspaper, and by the former Prime Minister who has just resigned from Parliament. They have fought a dignified battle in the face of these terrible unjustified attacks on those who they loved and lost.

Today, I am asking the Government to make their legacy of the independent public advocate a meaningful one, and to give them hope that the Government will be prepared to amend the Bill in the ways that I have described. I hope that the Government give me that reassurance today, so that I do not have to persevere any further with a Bill that has already been waiting seven years to be brought into effect. I beg to move.

My Lords, as the noble Lord just said, this Bill has been a long time coming. It is coming because of a felt public need that the general public did not get justice, having been confronted by what turned out to be at least some elements of cover-up and, to be perfectly honest, behind-covering by the establishment. The cover-up, as the noble Lord just mentioned, involved the use of stereotypes, saying that the group were all hooligans. That was an easy position to take in the late 1980s when football did not have a good reputation, but it was not the case here. People then refused to admit that they had made mistakes. This appalling record is only just finishing now, three and a half decades later. On those grounds alone, the noble Lord is absolutely justified in taking up Parliament’s time as he has. There can be no real argument about that.

I am sure the Minister will say that these circumstances could not happen now or as easily. That is possible, and there may be something in that—it is a pretty standard government reply. They go through a process of saying, “We’ve done something”, but if it is not absolutely transparent, they have not addressed the biggest part of this. People having to fight to put their rights in law is the starting point of many a campaign. It is very easy to pass a law and say that this should not happen, but everybody who has been involved in any campaign knows that the real work starts in making sure that the law is enforced and that the people in power understand it and implement it properly.

From my experience of Parliament, that is my message about what should be done: you can have a nice statement about everything that should happen, but how do you enforce it? How do you find those people who do not understand how or are unwilling to enforce it, because it is difficult or it makes them look bad? That is what happened here, and it led to obfuscation, people not admitting what had gone wrong and a legacy of distrust.

I will not be as elegant as the noble Lord, Lord Wills, was when he introduced the idea of a tripartite approach, but I hope the Minister will tell us that people will be able to see what is going on and have someone who can guide them through it. If that element is brought in, the biggest potential gain of this Bill will have been achieved—ensuring that people understand what is happening. That is what did not happen. When someone defends themselves with the stereotype of “This is what people like this do”, we can say that, no, it did not happen like that, or indeed it did, to let people know what happened and the justification for that decision.

Making a process transparent, and one that people trust in, is something which all bits of government should at the moment take very seriously. This predates the height of conspiracy culture, but here there is a chance to address it, and to address it when things have gone seriously wrong. If the Government are not prepared to seize this opportunity, they are making a big mistake, and making it much more difficult for anyone who sits on the Treasury Bench to find the time and effort to go back to this. I hope the Government can assure us that they will either expand what they have taken from the aims of this Bill or show us where they will achieve it somewhere else. Saying that the current system is fine really will not cut it.

My Lords, I declare an interest. A very close friend of mine’s brother was killed at Hillsborough. I congratulate my noble friend on introducing his Private Member’s Bill.

After years of campaigning and a former manifesto promise to create the office of the public advocate, the Government have finally formally announced their intention to introduce legislation. On 2 March, the Minister announced government plans to

“legislate as soon as possible to introduce an independent public advocate; to put victims and the bereaved at the heart of our response to large-scale public disasters”.—[Official Report, 2/3/23; col. 415.]

However, the Government’s proposals, as set out in Clauses 24 to 31 of the Victims and Prisoners Bill, will create a relatively powerless public advocate. The advocate, when appointed, would be temporary and have limited powers. They would not have the power to start an inquiry. The advocate would be temporarily appointed for a specific major incident, on terms agreed between them and the Secretary of State. They would have far more limited powers than those which had been envisaged, and rightly demanded, by the Hillsborough families and their campaigners.

This Private Member’s Bill introduced by my noble friend is an improvement on the Government’s current proposals. For example, the Bill provides that, once appointed, the advocate would be a permanent post and, in addition to undertaking functions when invited by the Lord Chancellor, they would be able to exercise their functions in response to major events, if both of the following criteria are met: first, if an event has led to large-scale loss of life and involved serious health and safety issues, a failure in regulation or other events of serious concern; and, secondly, if the advocate has been asked to undertake their functions by 50% plus one or more of the total of the representatives of those deceased due to the event and any injured survivors.

The Labour Party does not believe that the current proposals for independent public advocates contained within the Victims and Prisoners Bill are adequate. We plan to consider amendments to the Bill when it comes to this House to establish a fully independent legal advocate accountable to families, as the Hillsborough families and campaigners have demanded—an advocate with the power to access documents and data, not only to expose the full extent of the failure but to prevent the possibility of cover-ups, such as those that denied families justice immediately after the Hillsborough disaster.

I close by saying that I admire my noble friend’s persistence on this matter, which is one that provokes the highest of feelings across society, in many ways. We look forward to taking this matter further when the Bill comes before this House later this year.

My Lords, I first echo the words of the noble Lord, Lord Ponsonby, and associate myself with his commendation of the persistence, determination and integrity with which the noble Lord, Lord Wills, has introduced this Bill and has for many years pursued his commitment to the creation of a public advocate, engaging with the Government and colleagues on this issue over a prolonged period. Indeed, in that connection, I commend how the noble Lord, Lord Wills, other noble Lords and those in the other place have worked to support the Hillsborough families in their long campaign for justice.

It is imperative that lessons are learned from the experiences that the Hillsborough families have gone through. The Government are not saying that we could not have another Hillsborough; I think it most unlikely, but we have to assume that things will happen in the future. Therefore, we have to learn the lessons from the Hillsborough experience, including from the two earlier public inquiries and the long process by which we have, finally, nearly reached the end of that particular investigative process.

We have to think hard about the points that have rightly been made on transparency, which is often the key issue. As the noble Lord, Lord Addington, just said, the cover-up is the crucial difficulty and, very often, the major obstacle to getting at the truth, learning lessons and, most importantly, finding closure for the families. Transparency is extraordinarily important and giving victims and the bereaved agency is equally, if not more, important. Here you have families, ordinary people, living their lives. What on earth do they do? How do they get organised? Who is to speak for them? How do they respond to great tragedies? Of course, this is about not only Hillsborough but Grenfell, the Manchester Arena bombing and other instances of that kind.

That is why the Government are introducing a proposal to set up an independent public advocate structure. There is no disagreement about the end; the disagreement is about the means to do it. I am not sure that today is the day to prejudge the debate that we will have on the Victims and Prisoners Bill, but the Government are clearly listening to all the points that have been made today to see how this can, mostly, work to best advantage.

For the record, I shall briefly set out the role of the independent public advocate as envisaged in the Bill. First, it is to provide practical support for victims, enabling them to understand their rights and signposting them to support services. Secondly, it is to give them a voice: in other words, to give them the agency they need by advocating on their behalf—this is, after all, an advocate, someone who speaks on their behalf. As the Government see it, one function of such an advocate will be to insist on the maximum amount of transparency achievable in the circumstances. It seems an obvious role for such an advocate to give a voice to the wider communities.

It is envisaged that there will be a permanent full-time staff; it is not envisaged that there will be a single person who is “the public advocate”. There will be a panel of persons who will be called upon from time to time, ad hoc, when these tragedies arise to play that role. The public advocate will also be acting in the wider interests of the public, because they are, after all, the public advocate; they will act in the interests of victims, the bereaved and the wider public on all those matters. That is the outline of the Bill, and I am sure when we come to debate the Victims and Prisoners Bill in more detail, there will be amendments and matters for further debate that we can go into in great detail.

As far as the current Bill, in the name of the noble Lord, Lord Wills, is concerned, it is a remarkable effort. However, to put it briefly, there are three areas where the Government are unconvinced. The first is the way that the data controller powers are supposed to work and whether that would add another layer of complexity to what is already a very complex process of helping bereaved families and getting to the bottom of the story. If one takes, for example, what might be regarded as model inquiries—the Grenfell inquiry conducted by Sir Martin Moore-Bick and the recent Manchester Arena inquiry—they have both worked extremely well and one would not want to overcomplicate this process and give rise to unforeseen conflicts with existing investigative authorities.

The second area is the trigger process the Bill envisages, which is to find 51% of the representatives of the deceased and injured. That is quite a difficult process, in the Government’s view. It may be more efficient, as the present Bill provides, to allow the Secretary of State to proactively engage, appoint an IPA and start supporting victims and getting everything organised as soon as possible.

A third major area of not exactly disagreement but differing views, at the moment, is whether there should be a single permanent person—like the DPP; “I am the Public Advocate”—or whether you need a secretariat that is always there but a panel of people to draw upon, depending on the nature of the inquiry. You might not necessarily need a lawyer; you might need somebody with medical qualifications or specialist qualifications of another sort. All those are issues that need to be explored in more detail.

The Government’s present view is that the proposed IPA will have a more tailored and a more agile response to these specific kinds of major incidents and will allow us to draw on a register of on-call advocates with a range of different experience and expertise.

As I said, as far as the end goal is concerned, there is very little between us. It is simply a question of discussing the means in more detail, which I hope we will do and which I look forward with great interest to doing in the course of considering the Victims and Prisoners Bill.

My Lords, I am very grateful to all noble Lords who have taken part in this debate. It has been a short debate, but I hope it has been another stage in making a profound difference to the lives of those who, in the future, may be involved in public tragedies, which, as the Minister said, are inevitable. I also hope it will make a difference to those who, out of a clear blue sky, find their lives transformed by a terrible public tragedy.

I am grateful to the noble Lord, Lord Addington, for his powerful expression of the need for transparency and better support for the bereaved. I am grateful, as I always am, for the support of my noble friend Lord Ponsonby, who reminded us all from direct personal experience that these are human beings at the centre of this. We have to remember that it is people such as his friend whom we have to try to support through this process.

I am also grateful to the Minister for his thoughtful, sympathetic approach to the issues raised by the Bill. I am encouraged—I hope I am not being misled—that he talks about focusing on the means rather than the end, on which we are all agreed. I find it most encouraging because it suggests that the Government’s mind is still open on the important points we have discussed. I hope I am not wrong in interpreting his remarks in that way.

My Lords, I have to say that I give no commitment of any kind. I would not want anyone to read between the lines. All I am saying is that the Government will listen very carefully to the points being made.

I am grateful to the Minister; I would not dream of expecting him to make any commitments today, but I am grateful for his willingness to listen, because it suggests a willingness to accept amendments that go in a slightly different direction. He rightly points out that this is not the time to debate the Victims and Prisoners Bill, but I draw his attention to his remarks about the complexity of the processes in my Bill. I will not die in a ditch over the drafting of my original Bill; I said seven years ago and am happy to repeat now that I am perfectly willing to accept that it is flawed and needs improvement in many detailed ways. It has never been my intention that it should proceed verbatim, as it were.

However, I worry that, underlying his remarks, he may think there is something innovative about a lot of this, as his remarks about the data controller suggested. I therefore draw his attention to the fact that there are two existing, very successful models that my Bill draws on and which are at its heart. I urge the Government to examine them. The first is the Independent Reviewer of Terrorism Legislation; if the Government look again at the remit for that institution, it is very analogous to what is envisaged in my Bill. I urge them to think about adopting this proposal in the Victims and Prisoners Bill, in line with that.

The Minister talked about the complexity of the data controller’s role. It is not actually complex at all; it is literally on the model I initially devised for the Hillsborough Independent Panel—my second example—which everybody agrees was a tremendous success. However, its success was not due to the conception; the primary reason for its success was the extraordinary chairmanship of the right reverend Bishop of Liverpool and all its members bringing specific expertise. I also pay tribute to the Home Office official who provided the secretariat for that panel; it was outstanding work that showed just how wonderful our Civil Service can be. At a time when it is regularly traduced as “The Blob” and all the rest of it, one should look at the work of Home Office officials such as them and just be grateful that they work in public service.

There are existing successful models which this institution in my Bill is based on. I hope that, as we move forward in a co-operative, cross-party way—we have done so until now and I very much hope we can continue in that frame of mind—the Government will bear those models in mind. I look forward to exploring all these issues in due course as the Victims and Prisoners Bill comes before your Lordships’ House. In the meantime, I remain very grateful to all noble Lords who have taken part and to the Minister, and I ask that your Lordships give this Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.