Public Office (Accountability) Bill - Committee (3rd Day)

House of Lords, 21 October 2026.

Amendment 81

Lord Anderson of Ipswich (Crossbench)

My Lords, we move on to Part 3 of the Bill, and I rise to speak to the first four amendments in this group, which concern misconduct in public office. I am grateful to the Minister, once again, for discussing them with me, as he promised to do.

This Government are to be commended for accepting the recommendations of the Law Commission, in its report of 2020, that the common-law offence be abolished and replaced by the statutory offences in Clauses 13 and 14. The common-law offence is an ancient one, but fell largely into disuse during the 20th century. Attempts to use it again more recently—for example, against journalists and purported whistleblowers as part of Operation Elveden—have demonstrated its defects. As the Law Commission put it at paragraph 3.41 of its report:

“The unifying concern is that the offence fails to provide the certainty and clarity that the criminal law demands, and is therefore prone to error, misuse and abuse by law enforcement agencies”.

My amendments focus on Clause 13, which creates what the Law Commission described as

“an offence of corruption in public office”.

The offence is intended to catch acts performed by public office holders for a corrupt purpose, including financial gain and the facilitation of a sexual relationship. An offence will be committed only if the officeholder knows, or ought to know, that the use of their office for such a corrupt purpose is a seriously improper act—a question to be decided by the jury with regard to the matters listed in Clause 13(3). The recommendations of the Law Commission have been watered down in two crucial respects. The purpose of my amendments is to strengthen the offence in the Bill so that it regains the clarity, precision and efficacy that the Law Commission recommended that it needed.

Amendments 81, 83 and 84 address the fact that a Clause 13 offence is committed only if the person uses their office

“to obtain a benefit … or to cause another person to suffer a detriment”.

Interpreted with the caution appropriate to all criminal statutes, this appears to mean that the offence can be committed only if a benefit is actually obtained or a detriment actually suffered. That may not be what the Government intend.

During Commons Bill Committee last December, the Minister there stated that the offence can be committed where public office is used with the intent or—to use the Law Commission’s preferred word—purpose of obtaining a benefit or causing detriment; that would match the position under Section 2 of the Bribery Act 2010. I noticed that the Minister, the noble Lord, Lord Lemos, used the same formulation when summarising Clause 13 in his response on Monday to Amendments 31 and 82, as in col. 479 of Hansard. However, this is not a case where an assurance from the Dispatch Box will suffice. Our courts, increasingly and not unreasonably, tend to focus on the words of the statute that we ask them to apply. It is hard enough to explain the law to juries, and harder still when the law is not clear on its face. My amendments would put beyond doubt the interpretation that the Government themselves appear to favour.

My other amendment, Amendment 85, seeks to narrow the defence provided for in Clause 13(5). The Law Commission recommended what it described at 5.104 of its report as

“a statutory ‘public interest’ defence—that would be available in certain, limited circumstances—most likely in the context of unauthorised use or disclosure of official information”.

It went on to explain, by reference to principle and precedent, why it was appropriate to impose the legal burden of establishing this defence on the defendant. This narrow whistleblower’s defence has been replaced in the Bill with a far broader defence of “reasonable excuse”. That could be rather significant in practice. It would open the way for defendants charged with seriously improper, corrupt conduct to avoid penalisation by relying on such matters as short staffing or lack of training—matters which are obviously not in the public interest, but which a jury might be persuaded constitute a reasonable excuse.

The impact assessment rightly makes the point that honest mistakes or finely balanced operational decisions should not be caught by this offence. However, the combined requirements of corrupt purpose and seriously improper behaviour present a high bar to conviction, in contrast to the position under Clause 12, some of the foibles of which we discussed on Monday. Therefore, the case for a narrower defence to Clause 13 is, if anything, stronger than the case for a narrower defence to Clause 12, which was so ably made in that debate by the noble Baroness, Lady Levitt. The noble Baroness’s Amendment 86 would place the legal burden of establishing this defence on the defendant, as recommended by the Law Commission on orthodox grounds in 5.112 to 5.122 of its report; I entirely support that amendment.

In Amendments 88 and 89, the noble Baroness, Lady Levitt, also raises the issue of what, if any, defence is appropriate to the Clause 14 offence under “Breach of duty to prevent death or serious injury”. So far as I can see, the Law Commission did not see the need for any statutory defence to a charge under Clause 14. I look forward to hearing the Minister’s position on why a defence, particularly such a broad one, as provided by Clauses 14(2) and (3), is necessary. I beg to move.

Lord Hope of Craighead (Judge)

My Lords, I have put my name to the four amendments in the name of the noble Lord, Lord Anderson of Ipswich. I support the points he made. Words really matter, and particularly when one is seeking to put a common-law offence into statute, as we are doing here, great care needs to be taken that one reproduces as closely as possible what this rather loosely worded common-law offence was talking about.

There can be no better guide to what we should be saying than the Law Commission itself, given its overall responsibilities for the general shape of the law, which we have to administer. We owe a debt of gratitude to it for the work it has done, in view of the importance of the issue. I hope that the Minister will pay careful attention to the words of the noble Lord, Lord Anderson, with which I entirely agree.

Baroness Butler-Sloss (Crossbench)

My Lords, I entirely agree with what the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, have said and endorse the reasons they have given.

Baroness Levitt (Labour)

My Lords, I have a number of amendments in the group, and I begin with my Amendment 93. It is a modest amendment, but it addresses what I believe to be an important gap in the Bill. Its purpose is straightforward: to ensure that the new offences of seriously improper conduct and breaches of duty apply to paramedics responding to emergency calls, in the same way as they apply to other public officials.

My concerns about this issue go back many years to a case that came before the Court of Appeal, in which I appeared for the prosecution. The court was presided over by the noble and learned Lord, Lord Leveson, who I am sorry to see is not in his place. The issue was whether a paramedic responding to an emergency was a public officer for the purposes of the common-law offence of misconduct in public office. The court concluded that a paramedic did not come within that definition. As a consequence, the conviction could not be upheld. I do not criticise that decision; the court applied the common law as it was bound to do. However, this Bill abolishes the old common-law offence and replaces it with a statutory scheme. In doing so, Parliament has the opportunity to reconsider whether that outcome remains the right one. The deeply troubling facts of that case illustrate why it matters.

CCTV footage from the back of an ambulance showed a paramedic engaging in serious sexual misconduct towards a vulnerable female patient while transporting her to hospital. Because of evidential difficulties, the Crown Prosecution Service did not consider that it could prosecute under the Sexual Offences Act. I do not know anyone who thinks that that kind of behaviour is okay or that it should fall outside the criminal law altogether. The reason is obvious: when a paramedic responds to an emergency, members of the public are often at their most vulnerable. They may be injured, unconscious, frightened or otherwise incapable of protecting themselves. Just as significantly, they have no meaningful choice over who attends to them. That is what distinguishes a paramedic from any other healthcare professionals. A patient can change their GP, but when an ambulance arrives at the scene of a serious road accident, the patient cannot simply choose another paramedic; they must place their trust in whoever has arrived to help them. It is precisely because the public have no choice that the duty owed by a paramedic responding to an emergency is such a profound one, yet paramedics are not included within Schedule 4.

The consequence is not merely theoretical. If behaviour of the sort I have described were to occur again, a prosecution under Clause 13 for serious improper conduct would still not be possible, nor is that the only difficulty. It also affects the new offence created by Clause 14, namely breaches of duty to prevent death or serious injury. If there is one category of professional whose daily work involves preventing death or serious injury, it is a paramedic responding to an emergency call. Let us suppose that a paramedic deliberately withheld appropriate treatment because of prejudice towards a patient on grounds of race. As matters presently stand, they could not be prosecuted.

As I understand it—again, I am grateful to my noble friend the Minister for meeting me to discuss this—the Government’s explanation for not including paramedics is that they were not covered by the old common-law offence, and therefore this has not been carried over into the new offences. With respect to my noble friend, that approach misses a valuable opportunity. The purpose of this legislation should not be simply to replicate what has happened under the old law. The whole reason for replacing the common-law offence is to create a modern framework of public accountability. The need for modernisation is the very reason that the common-law offence is being abolished, and we in Parliament are deciding who the law should hold accountable now and for the future.

If one were to ask an ordinary member of the public whether a paramedic responding to a 999 call exercises public power and occupies a position of public trust, I suspect that the answer would be unequivocal. When a uniformed paramedic enters a stranger’s home in the middle of the night, when a patient is unconscious, terrified or incapable of making decisions for themselves, when intimate physical contact has to take place because a medical emergency requires it, when the decisions taken may determine whether somebody lives or dies, it is difficult to imagine a clearer example of public trust being placed in an individual.

There is also a wider point about vulnerability. The Bill is not concerned simply with the exercise of authority but with the abuse of position. Few relationships involve a greater imbalance of power than that between an emergency responder and a patient in acute distress. A paramedic who arrives enjoys immediate and unquestioned trust. We expect that trust to be respected, and we expect accountability if it is abused. Of course, paramedics are subject to professional regulation, but professional discipline and criminal liability serve different purposes. Professional regulation is about fitness to practise. The criminal law is concerned with the protection of the public and society’s condemnation of serious wrongdoing. They are complementary; they are not alternatives.

Most paramedics perform an extraordinarily difficult role with skill, compassion and professionalism, and I pay tribute to them. This amendment is not directed at the many, it is directed at that rare bad apple whose conduct brings the profession into disrepute and places vulnerable members of the public at risk.

I therefore hope that before Report, the Government might be willing to look again at this issue. If, having done so, my noble friend remains unpersuaded, I would be grateful to hear more about the reasoning behind that position, but I hope there may yet be an opportunity to reach a common view that reflects both the realities of modern public service and the expectations of those whom those public servants exist to protect.

I turn very briefly to Amendments 86, 88 and 89 in my name and Amendment 85 in the name of the noble Lord, Lord Anderson, to which I have added my name. As the noble Lord, Lord Anderson, has said, they all concern the defences available to these new offences. I do not intend to repeat what I said on Monday. I suggest that there are strong arguments for the approach suggested by the Law Commission and that it would be neither unfair nor unusual to adopt them. I listened carefully to my noble friend the Minister’s response to what I said on a previous group, and I say very gently to him—for whom I have the greatest of respect—that in relation to Clauses 13 and 14, his answer cannot be the same, as these are not new offences. After all, they replace the common-law offence of misconduct in public office.

That is why the Government really ought to explain more fully why they have chosen to depart from the considered recommendations of the Law Commission. If the Government now propose a different course, Parliament is entitled to know why. It matters because the approach adopted by the Bill will make it more difficult to prosecute public officials who have behaved in a criminally bad way. Victims and survivors whose confidence in public institutions has too often already been shaken deserve a clear and convincing explanation for that change of approach. If the Government consider that a different approach is justified, it would be helpful to understand the basis of that conclusion but, if not, I hope the Government will reflect further and think again.

Baroness Brinton (Liberal Democrat)

My Lords, I have tabled Amendments 91 and 144, also signed by my noble friend Lady Hamwee, in this group. I also signed Amendments 87, 90, 92 and 94, tabled by my noble friend Lord Marks, whom I will leave to speak to them; obviously, I support them.

Amendments 91 and 144 are simple and straightforward so I need not detain the Committee for long. They would close a loophole that exists in the Bill. It is not clear that someone who is no longer a public official under the definition of the Act, because of resignation or retirement, would also not be held accountable for an act that was perpetrated while they were a public official. If the Minister is to resist these amendments, will he confirm from the Dispatch Box that anyone formerly covered as a public official under the Bill who had resigned or retired from that post could still be prosecuted for an offence under Chapter 3, “Misleading the public”?

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, all the amendments to Clause 13 in this group tidy up, rationalise and clarify the important new misconduct in public office offence. As the noble Lord, Lord Anderson, explained, Amendments 81, 83 and 84 make it clear that it is the intent that matters and that it is not necessary for the prosecution to prove that a benefit is obtained by the defendant or that anyone else has suffered a detriment. As the noble Lord also explained, that represents the conclusion of the Law Commission and is powerfully endorsed by the briefing that we have received from Spotlight on Corruption, to which I am grateful. Amendments 83 and 84 are to the same effect.

Amendment 85 would replace the reasonable excuse defence with a public interest defence. Again, the Law Commission supported that and the noble Baroness, Lady Levitt, has spoken to it. I say only this to the Minister. When he responded to the amendments proposed by the noble Baroness, Lady Levitt, on Monday, which would substitute a public interest defence for the reasonable excuse defence in the Bill, in the offence of misleading the public, he said:

“While acting in the public interest could be the basis of a defence, we think that, for a new offence of this kind, covering as it does all statements made by Ministers and public officials on a wide range of matters, it is important to retain the breadth of a reasonable excuse defence”.—[Official Report, 19/10/26; col. 571.]

I have no wish to criticise the reasoning of the Minister or his brief, but I did not understand that answer as justifying a catch-all defence of reasonable excuse to an offence which has as its minimum ingredients both an intention to mislead the public—or recklessness as to whether the public will be misled—and knowledge on the part of the defendant that the defendant’s act is seriously improper. I repeat the point made by the noble Lord, Lord Anderson, that, together, those requirements represent a high bar or a high threshold for guilt. We can argue, as we did on Monday, that the definition of “seriously improper” needs tidying up, but it seems to me, as it seemed to the Law Commission, that a public interest defence is much more appropriate than a reasonable excuse defence for this offence—as it was for the offence of misleading the public.

This is Committee on an important Bill on which the Law Commission has expressed a relatively strong view which is supported by the Minister’s immediate predecessor. I accept that he may find that a little unusual but, in the circumstances, it might be best for the Government simply to accept Amendment 85.

I also suggest, for the reasons given by the noble Baroness, Lady Levitt, that it would be sensible to accept Amendment 86, which raises the hurdle for a defendant against whom the principal ingredients of the offence are proved and who wishes to raise a defence, whether of public interest, as we suggest, or of reasonable excuse, as per the unamended Bill. I contend that exactly the same reasoning applies to Amendments 88 and 89, relating to the Clause 14 offence of breach of duty to prevent death or serious injury, again for the reasons that the noble Baroness raised.

While on the amendments tabled by the noble Baroness, Lady Levitt, I also support her Amendment 93 to include paramedics within the category of public office holders. Her points were all persuasive, but I endorse, along with others, I believe, her argument that when we replace an outdated common-law offence that is generally thought to be no longer appropriate or to meet the requirements of justice, we should make sure that the new law is clear and comprehensive and that anomalies and omissions are addressed. I suggest that the omission of paramedics from the list of public office holders is just the sort of anomaly and omission that it is incumbent upon us to eliminate.

Amendment 92 in my name and that of my noble friend Lady Brinton would add a new clause after Clause 16 to the effect that corporations in a contractual relationship with the public office holder should be liable for offences under Clauses 13 and 14. The Law Commission recommended that private contractors providing a public service should be covered by the offence of misconduct in public office, but without this amendment, that recommendation would not be given effect. I suggest that the argument for it is overwhelming. Spotlight on Corruption again dealt in its briefing with this point. It pointed out that privately contracted goods and services account for no less than 30% of public spending. There is no sustainable argument that private contractors providing a public service under contract to a government department—for example, managing a prison for the Ministry of Justice—should escape liability for the offence merely on account of their private sector status. The justification for the offence lies in the nature of the public service provided and not in the precise identity of the provider.

Schedule 4 to the Bill, which deals with those who, to use the words of the Bill, “work for” various public bodies, is not presently sufficient to make it clear that private contractors are covered by that phrase, and the Government’s impact assessment is wrong to state, as it does baldly, that public office holders for the purpose of the misconduct offence include

“private contractors providing public services for any of the public bodies listed”.

The Bill simply does not say that. Our Amendment 94 would amend Schedule 4 to make it clear that private contractors to a public body are covered by the Bill. I suggest that it ought to be accepted. If that is what the Government’s impact assessment says, it ought to be reflected in the Bill. Although my opinion is that the reading of the Bill and the impact assessment is unsupportable, if there is agreement that private contractors should be covered, the Government should accept our amendment clarifying that.

Amendments 87 and 90 in my name and that of my noble friend Lady Brinton would provide for a fine as an alternative or additional penalty in the case of offences by corporate bodies and are predicated on a proposition that offences by corporate bodies are within the Bill, as envisaged by our Amendment 92. In such a case, these amendments would permit a fine to be imposed on corporate bodies. Amendment 90 would do the same for the Clause 14 offence of breach of duty to prevent death or serious injury. If corporate bodies are to be included, and I suggest that it is plainly sensible that they are, a fine is the obvious penalty, and it is not provided for. Although in normal cases a fine is an alternative to imprisonment, imprisonment is appropriate only for an individual, and it is difficult to see that a fine is covered. That is the point that Spotlight on Corruption has made.

Amendments 91 and 144, in the names of my noble friends Lady Brinton and Lady Hamwee, would ensure that resignation or retirement would not enable public officials to escape liability for misconduct during their service, and their accountability for their duties and liabilities while in office would continue after their service ended. One would have thought that was perfectly obvious. My noble friend Lady Hamwee mentioned this point in response to a passage in the speech by the noble Baroness, Lady Falkner, on Monday. The Minister, in response, sought to assure the Committee that the Government already took this to be the position, but again that is not stated in the Bill. I agree with the point made by the noble Lord, Lord Anderson, that courts tend to prefer the actual words of a statute to ministerial understanding. Indeed, I would add that they are bound to do so in the absence of ambiguity in the words of a statute. However, if the Government believe and intend that the position is that liability for default in service should continue after retirement or resignation, they will no doubt accept Amendments 91 and 114, as we believe they should. I repeat that this is the Committee stage of an important Bill introducing a substantial new offence of great importance, and we need to get it right. If the Bill is not clear, I suggest that amendments to make it so should simply be accepted rather than resisted.

I have spoken on these fairly technical amendments at some length, but they are important. I repeat: we must treat it as a requirement that we get this new statutory offence clear and right.

Lord Keen of Elie (Conservative)

My Lords, I thank the noble Lord, Lord Anderson, for opening this debate.

A number of detailed but significant amendments have been proposed to Clause 13. In general, the Official Opposition may not have proposed this Bill in the first place, and it is of course for the Minister to respond to the detailed points that have been raised about the drafting of Clause 13, but, that said, I would like to reflect briefly on some of the amendments in the group.

The amendments from the noble Lord, Lord Anderson, would widen the scope of the offence under Clause 13 to include actions where the intention was to gain a benefit or cause someone to suffer a detriment. That appears to us to be a sensible proposal in the context of Clause 13. After all, is there any reason why a party should not be answerable for seriously improper conduct simply because they were incompetent in their attempt to break the law? I would welcome the Minister’s views upon that simple proposition.

Several of the amendments in this group relate to reasonable excuse as a defence under Clause 13, and that has been touched upon already. I add my voice to the point that, in the context of the Clause 13 offence, it is perhaps difficult to see what reasonable excuse other than public interest would arise here. Again, I would welcome the views of the Minister, and I ask him to elaborate upon what those reasonable excuses would be in the face of seriously improper conduct.

The noble Baroness, Lady Levitt, referred to an amendment that would shift the burden for proving reasonable excuse or public interest defence. Again, I acknowledge that that would appear to be a more orthodox approach to the issue of such a defence in the context of such a statutory offence, and I would welcome the Minister’s views on that.

I acknowledge that Amendment 91, in the name of the noble Baroness, Lady Brinton, is at least a sensible probing amendment to ensure that those who have resigned or left public office are still going to be held accountable for their actions while in public office. I hope the Minister will at least take the opportunity to read into the record an assurance that that is what is intended by the provisions and will be the effect of these provisions if passed into law.

Lord Lemos (Labour)

My Lords, I thank all noble Lords for their contributions to this debate. It is good that we are discussing this in prime time, rather than at 11.30 pm, or whatever it was, on Monday. It has made the debate more spirited.

I will make some preliminary remarks before I respond in detail to the amendments. As well as Hillsborough, we have discussed many disasters which have given rise to the need for this Bill. However, I open my comments with my sincere, heartfelt sorrow for the families of the Aberfan disaster: 60 years have passed but, sadly, the lessons of that day are still being debated here and now. Justice for families is at the forefront of our minds, today and for the rest of our discussions on this Bill.

Before I respond to the amendments in this group, I return to a question that the noble Baroness, Lady Chakrabarti, raised in Committee on Monday and which was followed up by the noble Lords, Lord Anderson and Lord Alton. The noble Baroness asked about the potential prosecution of a chief constable who deliberately doctored the crime statistics to boost his or her own success. Of course, behaviour such as this could currently be caught under the common law misconduct in public office offence, and will continue to be something that could be caught within the new seriously improper acts offence, which is one of the replacements for the misconduct in public office offences inserted by Part 3 of the Bill. All the elements of the offence must be met, of course, but if the misleading behaviour to which the noble Baroness refers involves the officeholder using, or failing to use,

“their office to obtain a benefit … or to cause another to suffer a detriment, and … they know, or ought to know”

that their action is “seriously improper”—the circumstances she suggests certainly seem to indicate that—then the seriously improper acts offence could apply. I hope that I have clarified that.

I turn to the amendments in this group, beginning with Amendments 81, 83 and 84, tabled by the noble Lord, Lord Anderson of Ipswich, and supported by a number of noble Lords around the Committee, including the noble and learned Lord, Lord Hope, and the noble and learned Baroness, Lady Butler-Sloss. I hope that the noble Lord will be reassured to know that our policy intentions align absolutely with his. The new misconduct in public office offences should continue to be conduct-based offences. That means that it should not matter whether a benefit is actually obtained or a detriment suffered. However, I agree that it is essential that there is no ambiguity in how this part of Clause 13 might be read and interpreted by the courts. I also accept that this should carry through into the directions given to the jury. I therefore commit to working with the noble Lord ahead of Report on how we may best achieve this. I see some nodding from various noble Lords, so that has clearly gone down well, but it could go either way from here.

I turn to Amendments 85, 86, 88 and 89, tabled by the noble Lord, Lord Anderson of Ipswich, and the noble Baroness, Lady Levitt. I understand that the main concerns raised include that a reasonable excuse defence model is too broad and could lead to defendants raising unmeritorious or far-fetched excuses. The noble Lord, Lord Anderson, stressed that point. These could, at best, place an undue burden on prosecutors to disprove the defences and, at worst, prevent convictions. That is clearly something that the Government would want to avoid. However, I must be clear that we do not share these concerns about the reasonable excuse defence as a model. This is a common and well-used defence throughout the criminal law, so the courts are well accustomed to assessing whether any excuse offered is relevant and genuinely reasonable in the circumstances. Equally, this would be reflected in any direction that the court needed to give to the jury.

After further detailed consideration, although it is difficult to identify any circumstances where a public interest consideration would not also form part of a reasonable excuse defence—I think that was the point that the noble and learned Lord, Lord Keen, made—conversely, we have concerns that the much narrower public interest defence could potentially exclude legitimate circumstances that would otherwise fall within a reasonable excuse defence. We cannot foresee every scenario and would not want to limit the courts’ ability to assess what would constitute a reasonable excuse by altering the defence in this way. The excuse given has to be reasonable; it cannot be just any excuse. The examples that the noble Lord, Lord Anderson, gave are ones that we should think about. As I said, the Government believe that the courts are well versed in understanding the limits of a defence. Finally, the current common-law offence requires the prosecution to establish the absence of a reasonable excuse or justification. Retaining this approach supports one of our main policy objectives: to clarify the law, rather than change it.

I turn to the second issue: placing the legal burden of establishing the defence upon the defendant. The current draft follows a common approach to these defences, factoring in the need for adherence to the presumptions of innocence in accordance with Article 6(2) of the European Convention on Human Rights. As noble Lords know, this is what we call a partial reverse burden.

The noble Baroness’s amendments would place the full burden on the defendant. A full reverse burden is not uncommon for offences with low maximum penalties in circumstances where the relevant information is all within the defendant’s knowledge. However, such defences are rare where the maximum penalty for an offence is as long as it is for the offences in Clauses 13 and 14, which stand at 10 and 14 years respectively. Therefore, in the circumstances, this would be an unusual approach, which has not come out in the debate so far. However, we recognise the concern about the effect of introducing a heavy evidential burden on prosecutors. As I said, we do not want to make it more difficult than it needs to be in some offences, so the Government will reflect carefully on these points. For the moment, however, the Government consider the current approach to be appropriate.

I turn to Amendments 87, 90, 92 and 94, tabled by the noble Lord, Lord Marks, who I thank for his sensitive observations about me in his comments. A central requirement of both new offences is that the person accused is a public office holder. For the first time, Schedule 4 clearly sets out who is in scope of the new offence in Part 3. Adding an additional corporate liability provision with the intention of expanding the scope of the current common law would be inconsistent with the intention that these offences replicate, rather than widen, the common-law offence of misconduct in public office.

Where corporate wrongdoing is alleged, a range of other offences may also already be available depending on the circumstances, including bribery, corporate manslaughter, gross negligence manslaughter, and health and safety offences. It is for independent prosecutors to determine the appropriate charges, based on the facts and evidence of an individual case. On the point that the noble Lord, Lord Marks, stressed, where corporate entities carry out functions on behalf of the Government, such as operating private prisons—an example the noble Lord gave—or prisoner transport services, individuals working for those organisations can already fall within scope under Schedule 4 where the relevant requirements are met.

Amendment 94 seeks to bring private contractors and subcontractors working for the Government within the definition of a public office holder in Schedule 4. However, the amendment as drafted would bring contractors into scope regardless of whether the services they provide are of a public nature. The Government have sought to provide as much clarity as possible on who will be in scope of the new offences by setting out in the legislation who a public office holder is. Therefore, those who “work for” certain public office holders and meet the other elements of the offences are caught, but only where the services being provided are of a public nature, as I have said.

The additional catch-all provision in paragraph 27 of Schedule 4 was added to ensure that those not specifically listed could still be caught, where appropriate, by virtue of the public nature of the services they provide. I hope this has provided the noble Lord, Lord Marks, with the assurance he seeks around the provisions for private contractors and sub-contractors.

I turn to Amendment 93, tabled by the noble Baroness, Lady Levitt. As the noble Baroness is aware, following its extensive review of the common-law offence, the Law Commission concluded that front-line healthcare, which would include ambulance workers, should remain outside the scope of the new offences—unless they are providing services to those in state detention. That position reflected the existing case law in the case of Cosford, where the court held that nurses providing healthcare services within a prison were public office holders. A key point is that the Cosford case was decided in this way because it held that front-line healthcare responsibilities and duties are owed primarily to the individual they are treating rather than to the public in general. The noble Baroness gently challenged me to offer some further arguments to the ones I gave when we met previously, and that is one.

Front-line healthcare roles were excluded because healthcare services are delivered across both the public and private sectors and therefore cannot be regarded solely as a core function of government. Including public sector healthcare workers would create an arbitrary distinction between individuals performing the same role in the private and public sectors. This would add complexity, contrary to the policy objective of improving clarity on who the new offences apply to. In addition, existing offences, including fraud, bribery, false accounting and theft, already address this conduct, as does the full range of sexual offences—as the noble Baroness knows. I understand that was the particular wrongdoing in the case of Mitchell to which she has referred.

The Government’s position is that it is preferable to maintain the existing common-law position, which is consistent with the policy objective of clarification and codification, rather than extending the offence, as I think I mentioned when the noble Baroness and I met. However, I remind the noble Baroness of the Government’s stated commitment to reviewing the new misconduct offences 12 months after commencement. Any review could therefore of course consider whether additional categories of public office holder should be brought within scope.

Finally, I turn to Amendments 91 and 144, tabled by the noble Baroness, Lady Brinton. I can reassure her that the Bill achieves the result that she is concerned about. The noble and learned Lord, Lord Keen, asked me to be clear. For the record, Part 2 of Schedule 2 makes it clear that the definition of a “public official” includes an individual who was, but is no longer, such an official. In the case of the two new misconduct in public office offences, these will be committed where a public office holder carries out the relevant conduct elements while they hold the relevant role.

I ask the noble Lord to withdraw his amendment.

Lord Anderson of Ipswich (Crossbench)

My Lords, I am grateful to all noble Lords who have spoken in this debate in support of these amendments—all of whom are highly experienced in the realities of conducting a trial. I understand that massed ranks of lawyers are not to everyone’s taste but, in this case, given the technical nature of these amendments, I hope that might be considered a point in their favour.

I am grateful also to the noble and learned Lord, Lord Leveson, who, as the noble Baroness, Lady Levitt, pointed out, is unavoidably not in his place, but who has authorised me to say that he too supports these amendments—a view that I believe he has discussed already with the Minister.

On Amendments 81, 83 and 84, I am grateful both for the Minister’s confirmation of the Government’s position and for his undertaking, as I understood it, to put that position clearly in the legislation. He has an impressive battery of lawyers and judges on which to draw, should he wish any assistance in achieving this. Many of them, I would add, are of a rather higher calibre than me.

Lord Anderson of Ipswich (Crossbench)

The ironic cheers will be noted by Hansard.

On Amendment 85, regarding the scope of the defence, I am grateful again to the Minister for his explanation. Nevertheless, I remain uncertain as to exactly why the Government felt it necessary to depart from the considered and closely reasoned recommendations of the Law Commission—which in fact was only barely convinced of the need for the narrower defence, let alone a broader one—and why they consider, if they do, that such alleged excuses as understaffing and underresourcing really should be potential defences open to the jury to consider in relation to the corruption offence.

I noticed that the Minister considers that legitimate excuses might be excluded by the narrower defence. I do not think that I detected any examples of such legitimate excuses, but perhaps it might be possible in discussion to identify the sort of case that the Minister had in mind. I am grateful to him, but we may have to come back to this issue on Report. In the meantime, I beg leave to withdraw my amendment.

Amendment 81 withdrawn.

Amendments 82 to 87 not moved.

Clause 13 agreed.

Clause 14: Breach of duty to prevent death or serious injury

Amendments 88 to 90 not moved.

Clause 14 agreed.

Clause 15 agreed.

Clause 16: Holders of public office

Amendment 91 not moved.

Clause 16 agreed.

Amendment 92 not moved.

Schedule 4: Holders of Public Office

Amendments 93 and 94 not moved.

Schedule 4 agreed.

Clauses 17 to 19 agreed.

Schedule 5: Part 3: consequential amendments

Amendment 95

Baroness Kramer (Liberal Democrat)

My Lords, this group of amendments contains a whole variety of different aspects of legal aid. There is such expertise in this Committee that I will confine my remarks to my own amendment, as others will speak far more effectively to the other amendments.

Amendment 95 would provide a route to exceptional legal aid for proceedings arising from whistleblowing or the exercise of duties under the Act where the wider public interest justifies it. As such, it is a rather modest proposal. When I spoke on our first day in Committee, I explained that the existing whistleblower framework, the Public Interest Disclosure Act—PIDA—does not protect any whistleblower from retaliation or detriment, although, for a recognised group of workers, it allows for access to redress for retaliation or detriment, through an employment tribunal. I explained that, to get legal representation, even at a preliminary hearing, the cost is something like £30,000 and, as cases progress, the bill increases rapidly.

Nearly half of claimants end up representing themselves. Others turn to unregulated for-profit legal services, which may not be qualified. On the broader issue of a proliferation of such services, which is happening in the current legal aid context, I just say to the Minister that he may wish to look at the Legal Services Board’s mapping of a pool of businesses—it is now in excess of 200,000—that may be doing this work without the right expertise or qualification to provide the best support for those bringing cases.

The outcomes, typically, are poor, so the cost of getting sensible, quality legal representation is at a level that essentially discourages many people from speaking up, and as they progress through their case and the bill mounts, they find themselves signing NDAs, coming to a settlement, or simply walking away. In essence, it means that the wrongdoing is no longer the focus of attention—in fact, it frequently is ignored and set aside—and the issue becomes the whistleblower. That is not justice for whistleblowers, and, even more importantly, it is not in the public interest.

When I raised these issues on the first day in Committee, the noble Baroness, Lady Anderson, suggested that the way around legal costs is for everyone to join a union. I am a strong supporter of unions, but it is important that your Lordships understand that that is not a satisfactory answer. Unions can access insurance to provide legal support to a whistleblower. That is commendable, but, typically, under such insurance arrangements an insurer can refuse to continue to pay if the insurer believes that the likelihood of success is less than 50%. Over 95% of whistleblowing cases fail at tribunal. In 2025-26, 2,189 whistleblowing cases were disposed of before tribunal and only 19 succeeded at a hearing. In these instances, it is very easy to see that it is in the interest of the insurance company to lean on that legal counsel to encourage even the union members to agree to a settlement or to withdraw.

When anyone does an analysis of the level of settlement, it is quite unusual to find a settlement that even matches the lost salary of the whistleblower for the period of time when they have been pursuing their case, never mind offsetting any future informal blacklisting. Legal aid—and I am asking for this only in cases where the wider public interest justifies it—would tackle a big part of this problem. It would encourage speaking up, and that in turn would protect the public interest to a significant degree.

As I say, I am supportive of the other amendments in this group, but I know that there are speakers with far more specialism than I have. However, I want to address Amendment 124, in the name of the noble Baroness, Lady Chakrabarti. As I read it, she is seeking to achieve equality of legal funding between families and public authorities around inquests. It is the principle that underlies that that interests me: that the public authority should not have the advantage of Goliath, with deep pockets, to obtain high-cost and expert legal counsel to keep going with a process of seeking delays and appeals while, on the other hand, the family, and sometimes the whistleblower, are David, without even a slingshot. Equality of arms really does matter. I beg to move.

Lord Wills (Labour)

My Lords, I will speak to Amendments 117 and 120, in my name. Before I do so, I associate myself with the remarks of the noble Baroness, Lady Kramer, and strongly support what she has just said. I am quite sure that we will be returning to these issues of whistleblowing at some length on Report.

Amendment 117 is born out of the experiences of the Hillsborough families. When, finally, the Hillsborough Independent Panel established the truth of what happened on that tragic day, and, eventually, criminal prosecutions followed, the families believed that, after decades, some measure of justice might finally be done. In the event, many felt let down by the way the prosecution presented its case. Once again, they were excluded from the processes of the state addressing failures by the state. The central provisions in this Bill—the so-called parity of arms in legal representation—would not have secured those families legal representation, which could, for example, have advised them on what was going on, communicated with the CPS and advocated for them outside the court proceedings. This amendment seeks to rectify that omission.

On a linked issue, I would be grateful if my noble friend the Minister could explain why the Bill contains no provision for legal aid support for victims of state failure to bring criminal prosecutions against those responsible for such failures. I stress that this need be available only when there was a reasonable chance of success and when it might be reasonably thought to be in the public interest. Those are the tests that the CPS applies in deciding whether to bring a prosecution, but the CPS is not infallible. In particular, its assessment of the public interest might be different from that of members of the public who have been most grievously affected by the state failure in question. Therefore, the question must arise: why should victims of state failure, and those bereaved by it, be denied support to take action in the event of the CPS, for whatever reason, taking a different view of the public interest?

Amendment 120 seeks to address the widespread concerns that, however admirable the Bill’s intention to secure parity of arms in legal representation when state failure occurs, the legal profession, at the moment, is not sufficiently funded and equipped to deliver those admirable intentions. Amendments tabled by other noble Lords seek to address in different ways these fundamental problems directly. Amendment 120 has a more modest aim. It simply asks the Government to recognise that there might be problems in this respect that the Bill does not envisage and, at an appropriate time, to review what is happening in practice to determine whether there is in fact a problem or problems; and if that review determines that there are such problems, to then take action to address them so that the admirable intentions of this Bill do not turn out to be paper promises. If the Minister is minded to resist what I feel is a modest and constructive amendment, I would be grateful if he can explain why to the Committee.

Baroness Chakrabarti (Labour)

My Lords, as we heard from the noble Baroness, Lady Kramer, I have Amendment 124 in this group. Arguably, it might have been better placed in the next group; if so, I apologise to the Committee for not being more on the ball. I am very grateful for the support of the noble Baroness, Lady Kramer—in fact, she introduced my amendment admirably. It is really about parity and equality of funding of legal representation in these proceedings.

As we know, the Bill seeks to effect cultural change through the general duty of candour, which applies at all times. It introduces a proactive duty of candour and assistance, to require co-operation with inquiries and investigations when things go wrong, and to rebalance representation for state bodies and those affected by state failures and wrongdoing. Clause 20 is about that third pillar, but the success of the first two will have a profound effect on the cost of it.

What do I mean by that? If the general duty truly creates the intended cultural change and narrows the opportunity for obfuscation and cover-up then it will substantially reduce the need—as I think we would all like—for the lengthy and controversial inquiry and investigatory processes of which we are all aware. If the duty of candour and assistance works as intended, where there is need for investigation and inquiry, those processes will be much swifter and more efficient because all involved will be required to provide the key information at the outset. Chairs, coroners and investigators will no longer spend months seeking things which might not exist, chasing evidence which turns out not be disputed and, frankly, looking for needles in haystacks when a snowstorm of paper is eventually produced for them.

That is the context of the new provisions on parity of representation in Clause 26. Although there is an extension of the legal aid scheme to the benefit of bereaved families in cases where the state is a participant, any increased cost should be far outweighed by the savings that I have just attempted to outline: the need for fewer investigatory processes and the vastly improved efficiency brought about by the proactive assistance required by the duty of candour. No one should fear that this Bill will necessarily increase public spending if it is properly implemented. If it is properly implemented, it will do precisely the opposite.

However, there are two important elements, I suggest, missing from Clause 20. First, the matter sought to be rectified by Amendment 102 in the names of my noble friends Lady Goudie and Lord Bach relates to when and, importantly, how early representation for bereaved families should kick in. Secondly, there is the historic incongruity whereby lawyers acting for public bodies are paid a much higher rate than those who act for bereaved families. To make this point clear, this means that lawyers in the same case, at the same level of experience and doing the same work—each paid by the taxpayer—are paid a premium simply if they act for the state rather than for the bereaved citizen. Surely, that is wholly indefensible, and it is easily and appropriately rectified by my simple, straightforward amendment here.

At the Government’s request, the Hillsborough Law Now campaign—I think we have some friends from the campaign with us in the Chamber today, including their counsel, Pete Weatherby KC—has assisted in the crafting of the Bill and continues to meet with colleagues in government. The only arguments advanced against proper parity have been, as I understand it, vague references to market forces and the matter of the Bill applying across a wide range of public bodies. Quite why market forces should apply to one side and not the other has not yet been explained. Lawyers frequently appear for one side or the other, dependent only on where their instructions come from. Allowing taxpayer-funded representation to be set at different, lower rates for families is about the easiest way of improperly interfering with the market.

Margaret Aspinall, whose son was unlawfully killed at Hillsborough, famously said that without parity, the state gets Rolls-Royce lawyers, and the families get the Morris Minor. I mean no disrespect to Morris Minor owners in the Committee, if there are any. The argument that higher rates are justified just because there are a range of state bodies which instruct lawyers is also nonsensical. This is primary legislation. If it requires proper parity of rates, state bodies will know that they are able to instruct lawyers only at the legal aid rate set for families. This is fair, simple to operate and principled. There will be no need to investigate the current legal spending rates of every NHS trust, police force et cetera in the country. Instead, they will have to cap their spending at the prescribed and published legal aid rates.

That is equality of arms; it is not a lawyers’ charter. If the expensive lawyers who normally represent the state, rather than victims of state abuse, do not like it, they will be able to lobby their paymasters to bump up the legal aid rates to the rate that they think is appropriate. That is the point of this amendment. I really hope that my noble friends in government will get behind this key principle of the campaign and accept Amendment 124.

Baroness Benjamin (Liberal Democrat)

My Lords, I speak on this group because there is a growing outcry for funded legal support for Windrush victims and survivors, to create a level playing field with other state scandals. For several years now, I have stood in this Chamber and called on this Government—and the previous Government—for legal aid for Windrush victims, but my pleas, and those of others, have fallen on deaf ears.

Windrush victims and survivors continue to be desperate for help. They have had to face the hostile environment and have gone through hardship and insecurities, yet are still being treated unfairly. Windrush victims of the Post Office and infected blood scandals can receive funded legal representation. Their schemes provide greater institutional independence, access to legal and expert evidence and routes to independent panels and tribunals capable of making binding decisions.

Some Post Office claimants may choose substantial fixed-sum awards, reducing the burden of proving every element of historic loss. Windrush victims and claimants receive none of these safeguards. The Windrush compensation scheme provides no funded legal advice. Claimants must rely on scarce pro bono help, represent themselves or surrender part of their compensation in private fees. Research has found average offers of compensation were £11,400 where people applied without legal advice, compared with £83,200 for some claims following legally represented review. In one case, a claimant initially received nothing but, with pro bono legal help, was ultimately awarded £295,000.

The Home Office told the Public Affairs Committee that the Windrush scheme was designed not to have funded legal support to avoid confrontational and retraumatising processes. Yet it contradicted this in explaining why some claims take longer, saying that it was because claimants find the process distressing and retraumatising, and that the department progressed claims only at the pace the victims want.

This is a blatant disregard of survivors’ voices, as summarised by the Government’s own independent Windrush Commissioner, Reverend Clive Foster MBE, who, reporting in the same committee, explained that the Windrush compensation scheme is confusing, overwhelming and retraumatising, with limited proactive communication from the Home Office both in terms of case updates and a clear explanation of being eligible and having entitlement to compensation. He has now begun a campaign for legal support for Windrush victims and survivors. This is most telling. Surely if the Government’s own Windrush Commissioner says there is a need for legal aid, then there must be a case to answer.

Written evidence submitted by Age UK to the Public Affairs Committee stated that requirements on documents and evidence “should be realistic”, should be designed to minimise further

“trauma and distress and should recognise the barriers faced by older people”,

to supply historic documents. Without legal aid and expert evidence, these requirements present enormous difficulties, hurdles and adversity for the victims, who have had to endure huge stress and trauma and continue to do so.

Support is available through the advocacy fund for victims, but advocates cannot provide specialist legal advice and challenge decisions on what is legal. Legal aid or funded legal support is necessary for those Windrush victims and survivors who desperately need it, because they are expected to navigate a 44-page claim form, 52 pages of compensation scheme rules and over 100 pages of caseworker guidance. As I said, many are elderly and living with poor health. How can this be justified? The Home Office needs to repent and change this policy and the requirements. I ask the Government to consider this plea and show empathy and compassion for these desperate British citizens who have been treated disgracefully and surely have suffered enough.

Lord Keen of Elie (Conservative)

My Lords, clearly, there is concern across the Committee about the issue of legal aid, and equally, the treatment of whistleblowers in the context of representation. We are not convinced at this stage that it is necessary to establish a separate route to legal aid in these cases.

Turning to Amendments 117 and 120 in the name of the noble Lord, Lord Wills, we would be interested to hear the Minister’s response to the question about review of non-means-tested legal aid in the context of inquests. I also note that the Government have set down and tabled their own amendments in this area. We do not oppose those amendments, but we hope that the issue of legal aid can be clarified before we reach Report, because otherwise it will no doubt be returned to.

Finally, I will mention Amendment 124 in the name of the noble Baroness, Lady Chakrabarti, which seeks to impose a cap on the funding for a public authority’s legal representation at the level of legal aid rates. We are sympathetic to the aim that lies behind this amendment—namely, parity of representation, which is so important. However, we would be inclined to pull people up, not push people down. It is in these circumstances that I suggest we are more likely to make progress on this issue when we come to the next group of amendments.

Lord Lemos (Labour)

My Lords, this has been an important and interesting debate on the first of two groups on legal aid. Before I speak to the specific amendments, I wish to turn to a modest collection of government amendments tabled in my name.

Government Amendments 136A, 136B and 137B clarify changes to the regulations governing the provision of non-means tested legal aid in relation to inquests. Amendment 137 serves to tidy up the regulations on the provision of non-means tested legal aid for legal help work, which includes preparatory work ahead of an inquest hearing. The amendment removes a sub-paragraph of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013. This sub-paragraph currently ensures that where an applicant is receiving legal aid for “other legal services” at an inquest through exceptional case funding, legal help in relation to that inquest will be non-means tested. Exceptional case funding is available for inquests without a means test where a failure to provide legal aid would breach, or likely risk a breach of, an individual’s human rights.

We previously amended the Bill to expand the definition of what work is covered by “other legal services”, and this now includes legal help work. Therefore, in cases where an applicant is receiving exceptional case funding for other legal services at an inquest, they would also receive non-means-tested legal help services. The sub-paragraph of the regulation which removes the requirement for a means test for legal help in these cases is therefore no longer required, and Amendment 137 removes this.

Government Amendments 136A and 136B clarify the circumstances in which legal aid in relation to an inquest is available without a means test. Amendment 136A replaces the provision that non-means tested legal help is available at an inquest, with the provision that it is available “in relation to” an inquest. This ensures that non-means tested legal help is available to support a bereaved family member’s preparation for an inquest, as well as the inquest hearing itself.

Amendment 136B ensures that non-means-tested legal help will be available where either a public authority, or a relevant public official who represents that public authority, is an interested person. The relevant officials are listed in paragraph 4(3) of Part 4 of Schedule 6 to the Bill. This ensures that both legal help and advocacy services brought in scope of the Bill will be provided where either a public authority, or the specified public official who represents a public authority at an inquest, is an interested person. Together, these amendments ensure that the legislation clearly and consistently describes the circumstances in which non-means tested legal aid is available and removes a provision which is no longer required.

I now turn to the non-government amendments in this group. I say to the noble Baroness, Lady Benjamin, that a number of points about Windrush will come up in the next group. My noble friend Lady Anderson will respond to them, and she will reply to the noble Baroness’s points about legal aid as part of that.

On Amendment 95, tabled by the noble Baroness, Lady Kramer, the Government recognise the important role that whistleblowers can play in bringing wrongdoing to light and promoting accountability. I know that this is a long-standing concern and interest of the noble Baroness, and we have discussed it. The statutory framework for civil legal aid is set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The availability of legal aid depends on whether a matter falls within the scope set by Parliament. Eligibility depends on the underlying legal issue and the nature of the proceedings, together with the applicable means and merits requirements. Some whistleblowing-related matters may already qualify for legal aid under existing provisions; for example, legal aid may be available in cases involving an alleged deliberate or dishonest abuse of position or power by a public authority. In addition, legal aid is available for certain discrimination matters falling within the existing scope of the scheme.

Where a matter falls outside the normal scope of legal aid, individuals may apply for exceptional case funding. Such funding may be granted where a failure to provide legal aid would create a risk of a breach of the applicant’s human rights or assimilated rights. Applications are considered on a case-by-case basis. Separate to legal aid, wider issues relating to whistleblowing protections are being considered by the Department for Business, Innovation, Science and Trade, which has published a consultation, as the noble Baroness knows and as we have previously discussed in Committee. Additionally, most of the employees covered by this amendment would have access to trade unions—a point made by the noble Baroness, Lady Kramer—through which legal support could also be obtained. Therefore, the Government do not consider that a bespoke legal aid package for whistleblowers is necessary, and I ask the noble Baroness to withdraw her amendment.

I turn now to the other amendments discussed in this debate. On Amendment 117, tabled by my noble friend Lord Wills, I recognise that criminal proceedings can be very difficult for victims—of course the Government are aware of that. We are keen to ensure that the court experience is as smooth as possible for victims and that, if they wish to receive it, they can access emotional and practical support throughout. However, we do not believe that introducing legal representation for victims would be the right way forward. Criminal proceedings are between the state and the defendant—

Lord Wills (Labour)

The Minister said that the Government’s intention is to give support to victims through what can be very stressful criminal court cases. Does he recognise that that job could well be done by the Independent Public Advocate, but that it can be done only if she receives sufficient funding to do it, which at the moment she does not?

Lord Lemos (Labour)

I am smiling because, with the greatest respect, my noble friend never misses an opportunity to make that point about the IPA to me. We discussed it on a previous day in Committee and I gave a range of assurances, which I am sure he will not forget and will hold me to. Of course we take the IPA’s role in this very seriously. He also knows that I cannot countermand the Treasury on resources, but we will consider the business cases he has put forward, as we already are in the Ministry of Justice.

I return to the question of legal aid for victims. Criminal proceedings are between the state and the defendant, with legal aid being used to fund an eligible defendant’s legal team to help ensure a fair trial. Even if legal aid was made available to victims only for a small number of offences, this would mark a move away from a fundamental and long-standing principle that criminal legal aid is to fund a defendant’s defence. Prosecution work will be handled by the Crown Prosecution Service, so victims of any breach of duties under the Bill will not require their own legal representation. Legal aid will be available to defendants involved in breaches of duty under the Bill, as it usually is in all criminal proceedings.

We understand that criminal justice processes can be extremely difficult to navigate and can produce a great deal of stress and distress for individuals, particularly for those who have been the victim of a crime. To mitigate these challenges and provide assistance, there is a range of support services already in place to help victims, including local support services. This support can include advocacy, emotional support and advice while navigating the court process.

Baroness Butler-Sloss (Crossbench)

What about withdrawing the support services for the court support teams we are talking about?

Lord Lemos (Labour)

I am not quite sure what the noble and learned Baroness is driving at in relation to that and legal aid, but I am happy to pick up the point later and think about it further.

On Amendment 120, tabled by my noble friend Lord Wills, we are committed to ensuring the effectiveness of legal aid arrangements for inquests under the Bill. However, we do not consider that the creation of an independent review to be conducted within six months of implementation is the most effective way of achieving this. The Lord Chancellor has a legal duty under Section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to secure the availability of legal aid for those who are eligible, and these arrangements are monitored on a regular basis.

We recognise that the implementation of the Bill will significantly expand the scope of legal aid for inquests where a public authority is an interested person. In order to ensure the effectiveness of these arrangements, which, as I say, are a considerable expansion, the Government will keep them under review from day one of implementation. This approach will allow us more flexibility in taking into account factors which may impact inquest legal aid and apply across, or have implications for, other key areas of civil legal aid. Where there is evidence of issues of access or adequacy in relation to inquest legal aid, this approach will allow the Government to consider this evidence as and when it arises, rather than within an inflexible set time period, and, where appropriate, to formulate next steps and actions in policy and practice.

I am grateful to the noble Baroness, Lady Chakrabarti, for tabling Amendment 124, which seeks to achieve equality of funding between families and public authorities around inquests by placing the onus on the latter not to spend more than the prevailing rates for legal aid. For too long, some families have had to fund their own legal representation or support for inquest when the state has had access to taxpayer-funded services—the point made by the noble Baroness, Lady Chakrabarti. This is not right. That is why we have sought to level the playing field—I am adding to the David and Goliath and Morris Minor metaphors used earlier with my own level playing field cliché—through the measures in the Bill. For the first time, non-means-tested legal aid will be available for an inquest where the state is an interested person. We think this goes a significant way in itself to ensuring a parity of arms at inquest. I was pleased to note the comments of the noble and learned Lord, Lord Keen, in support of the principle, which I think are now shared by everybody. We therefore share the same intention as the noble Baroness.

There are some practicalities that have to be considered when exploring limits on the spend of public authorities at inquests. I should like to take a few moments to set those out. First, we must recognise the role that public authorities play at inquests. Public authorities rightly have significant responsibilities for evidence-gathering, disclosure and participation, and inflexible limits on legal representation could inadvertently impede their ability to assist coroners in establishing the full circumstances of a death. Secondly, rates paid by public authorities have developed through a range of diverse funding and contracting models, and seeking to apply a level of rates developed through the legal aid model would be complex and likely to have unintended consequences without careful application. It could risk impacting the effective participation of public authorities in the inquest process, which is essential to establishing what happened.

Baroness Chakrabarti (Labour)

I am grateful to my noble friend for the seriousness with which he is engaging with this discussion. On his point that there is a range of authorities and it would be difficult to work out what the rate is, if they were bound to the legal aid rate then there would not be a range any more, which is a point that I perhaps made badly. I probably did not do myself or my amendment justice in what I said earlier. On his point, which I think is a really good one, about a public authority that is engaged in an inquiry sometimes having to do so much more work because they have to make all this disclosure, that is not about the rate; that is about the overall cost, which would be unaffected by either my amendment or that of my noble friend Lord Bach, which I also support. That is about the overall cost, not the rate per hour. Therefore, the second point seems a little redundant.

Lord Lemos (Labour)

With respect, I do not think it is redundant. I am happy to seek to clarify the point I was trying to make, and will talk in a minute about what we are going to do next. The way in which the rates—and she is right to draw that distinction—have been set for these various activities has come about through different means. The Government are concerned that there may be unintended consequences of using the metric that she is suggesting. As I say, we accept the principle; we just do not want to be unpicking lots of consequences which we have not quite thought through. If the noble Baroness will allow me, I will press on and talk a little more about where we go from here.

We understand the concerns, as I hope I have made clear, and have sought to go further with the Bill, requiring public authorities to engage legal representatives to act for them as “necessary and proportionate.” This is an important phrase, and I want to set out very clearly for the record the current provisions in the Bill to seek to address the parity of arms ambition.

Public authorities must engage legal representatives to act for them in necessary and proportionate ways, as I have said, including with regard to

“the comparative position of affected persons in respect of their means to engage legal representatives”

—the principle that the noble Baroness is enunciating—

“the nature and extent of the obligations of public authorities to assist in respect of disclosure and other matters”,

and

“the importance of the issues under investigation and the need for those issues to be investigated fairly, proportionately, expeditiously and cost-effectively”.

In doing so, they will need to have regard—this is also an important point for the future—to statutory guidance issued by the Lord Chancellor setting out the principles that should guide their conduct at inquests.

In addition, through ensuring that the cost of legal aid expansion is met by public authorities or their central government department where they are an interested person at an inquest, we expect this to help strengthen incentives for more proportionate participation—I stress the word “proportionate”, as I have already—and spending behaviours among interested public authorities, to address the David and Goliath and Morris Minor problem, including in the use of their own legal representation at inquests.

Nevertheless, we acknowledge the strength of feeling on this issue. I have set out the current provisions in the Bill fully and carefully as a basis for continuing the conversation. We all share the aim of ensuring fairness at inquests. Equally, we must ensure that this is done in a way that has no unintended consequences—as I referred to earlier in response to the intervention from the noble Baroness, Lady Chakrabarti—that could undermine the effective operation of the coronial system. The Government continue to explore ways to achieve this. I will certainly meet the noble Baroness and other Peers before Report to discuss this and the various ways forward. I therefore invite the noble Baroness to withdraw her amendment.

Baroness Kramer (Liberal Democrat)

My Lords, the Minister has a lot to chew on here. The link between the public interest and legal aid is quite powerful. If we put the public interest first, we must reconsider how we regard public legal aid as a mechanism to achieve the outcomes that we are looking for. I beg leave to withdraw my amendment.

Amendment 95 withdrawn.

Schedule 5 agreed.

Clause 20: Parity etc at inquiries and investigations

Amendments 96 to 101

Amendment 102

Baroness Goudie (Labour)

My Lords, Amendment 102 is in my name and that of the noble Lord, Lord Bach. I thank the Law Society, the Bar Council, Justice, Inquest and Amnesty International for all the support that they have given to us in briefings.

This is a vital part of the Bill. It is most important that people are represented properly and have legal representation from the time that an accident happens, for advice and for seeing the solicitor. They should have proper counsel representing them at inquests from the very beginning—not halfway through, not from websites trying to get money from them and not with friends having to pay. This should be part of the Bill. People should have legal aid from the beginning.

I am not moving money about; it should come from the Legal Aid Fund. The budget must be increased to take care of these issues. There have been too many cuts to legal aid over the past 10 years. It is important that this is taken into account and that it is key in the Bill’s work. I have already mentioned the support that we have had.

People are rightly worried about how many cases this could mean. I have asked various people. It could go up to 11,000. I have checked this with the Law Society and the House of Lords Library. The figure shows how great the need has been. We also must ensure that families do not have to go to other places to raise money. This is just not done. It is for us as a Government —as a Labour Government—to represent all who need representation.

I hope that the Minister looks favourably on the amendment and includes it in the Bill, and in statute. It is most important. This cannot be taken away, as we have seen happen in other cases.

Lord Bach (Labour)

My Lords, I rise to warmly support Amendment 102, to which I have added my name and which was so ably moved by my noble friend Lady Goudie. I will also speak briefly, the Committee will be pleased to hear, on my Amendment 114, because it links so closely to the amendment spoken to by my noble friend Lady Chakrabarti a few minutes ago, sometimes using precisely the same words that I would have used if I had been more lengthy.

Baroness Chakrabarti (Labour)

Sorry.

Lord Bach (Labour)

I accept the apology.

I remind the Committee of my registered interests and I warmly thank the three noble Lords who put their names to my amendment: the noble Lords, Lord Carlile of Berriew and Lord Marks of Henley-on-Thames, and my noble friend Lord Wills. So much has been taken. I will come to my Amendment 114 in due course.

I want to add just a couple of things to what my noble friend Lady Goudie said. She referred to an easily stated problem. State bodies have lawyers in house. They can instruct lawyers as soon as disaster or scandal happens and, of course, they do. On the current wording of Clause 20, the affected families are able to instruct lawyers only months or years down the line—not even when the inquest has been opened, but when the coroner designates interested person status. A current case that has come to my attention about interested person designation has not been finalised two years after the deaths.

In cases where there may be IOPC or prison ombudsman reports or other serious incident reports, long delays may and do occur. In the vast majority of cases the ultimate position will not be in doubt, but funding will still not be available. The police force will be an interested person in every controversial custody death, similarly the Prison Service, the Probation Service and the health service in respect of deaths in their domains.

The common-sense answer is surely to provide funding to families where it is likely—this is what my noble friend Lady Goudie’s amendment says—that a state body will be designated and to have provisions to ensure that the position is clarified at the earliest possible moment. The importance of this amendment is that families may need legal advice immediately with respect, for example, to post-mortems and to assist them in navigating the post-death process and inquest proceedings at a time when they are at their most traumatised and vulnerable. It is unfair if the families of those who died cannot get legal aid at an early moment, leaving those who will clearly become interested persons in an advantageous position. I very much hope that the Government will consider that amendment with care. It leaves them some scope to decide on it. It is not absolute but it says as soon as possible when it is likely. It is normally pretty clear when it is likely, if not just obvious.

What is left for me to say on the amendment tabled by my noble friend Lady Chakrabarti? I am in the interesting position of the Minister having answered her amendment, which gives me the chance to say that I do not think that the Government feel in a very comfortable position about this amendment. I am very grateful to the Minister, who has been trying hard to make sure that some justice can be done in this area.

If there is a difference between the amendment by the noble Baroness, Lady Chakrabarti, and mine—Amendments 124 and 114—it is perhaps that mine allows slightly wider scope for the Government to come to a view, and does not necessarily always link it with legal aid; it has to be minimal legal aid, obviously, but not always with legal aid. I do not always agree with the noble and learned Lord, Lord Keen of Elie, whose modest support for this was very much noted by me and other noble Lords, but this should be a question of moving up rather than moving down, and that is a principle that we want to establish.

I cannot emphasise enough that, if this does not happen, if the position remains as it is now, then there really will not be parity between the parties—and if the Bill is not, among many other things, about parity, then that would be a huge lacuna in the Bill, and it might be so serious as to make sure that this Bill, which the Government support so much and I think the House largely supports, might fail. It would be utterly unfair if this particular issue was not sorted out.

This is about rates, not actual costs. That is all that is being asked. In the field of equality and equity generally, it would be absurd, if I may say so, if the Government stuck to their position and did not allow that this is a proper and sensible amendment that fits in with the philosophy and the thinking behind the Bill. I am grateful to the Minister for seeing me and for all the work that he has done, but there is lots more work to be done on this before we reach a satisfactory conclusion.

Lord Carlile of Berriew (Crossbench)

My Lords, inquests are mostly very straightforward and do not raise many contentious issues, but from time to time inquests can be incredibly complicated and can raise large numbers of serious issues arising from the conduct or misconduct of those who work for public authorities.

For me, the principle of the proposed amendments to Clause 20 and Schedule 6 is that, when the state is represented at public expense, bereaved families should not be placed at a disadvantage because of their means. I shall give the Committee two examples of real cases.

Some noble Lords may be old enough to remember a character in “Coronation Street” called Jerry Booth, who died in his bed at home in his 30s. My noble kinswoman was but a child at the time—I see her shaking her head. Jerry Booth’s death was from a not very well-explained cause, and the local health board, or whatever it was in those days, relied upon the evidence of a particular pathologist. Counsel who was instructed on behalf of Jerry Booth’s wife, at private expense, smelled a rat and had another pathologist carry out a post-mortem. It was discovered that the way in which the post-mortem of the body had originally been carried out was extremely dubious, not least because when the second pathologist opened the body he found the sternum—the chest bone—not only of Jerry Booth but of another person inside the body. That is an absolute fact from the case.

I turn to a much more recent case, that of the distinguished consultant medical specialist Dr Kim Harrison. He died in south Wales as a result of being killed by his own son, who suffered from a serious mental health condition. Eventually, after a terrible inquiry by the local health authority, from which large quantities of documentation were concealed, there was an inquest before deputy coroner Kirsten Heaven. Among the things she found were that: the son had been wrongly removed from specialist mental health care; when a consultant had left, proper follow-up arrangements were not put in place; the family’s repeated warnings about their son’s health condition were ignored; security at the psychiatric unit was so inadequate that the son was able to just walk out; and a series of care failings contributed to the circumstances leading to his father’s death. None of that would have been revealed without careful analysis carried out for the family at their expense—a family which, by the way, still loves and has contact with the boy who killed his father, the son being in a mental health institution.

These two cases come from one counsel, and in both cases that was me. There are 18,491 barristers in this country, never mind the number of solicitors. These cases represent just two from a much larger pool of experience throughout my career as a barrister, and they indicate to me how important equality of opportunity is, though not necessarily in precise equality of arms. We are not talking about equal fees, but equality of opportunity to be represented properly at the cost of the state, where there might otherwise be a disadvantage against the public authority due to means.

Justice demands equality of arms, or at least of opportunity. An inquest is a search for truth, not a contest of resources, and funding disparities distort that search. Public confidence depends on visible, accountable fairness. The appearance of institutional advantage undermines trust in the outcome. Families are not ordinary litigants; they are grieving citizens seeking answers following a death for which the state might bear responsibility, and they want to know.

There should be a level playing field on rights, which are of little value if they cannot be exercised in practice, including during an inquest. Proper scrutiny improves public service for the future. The Harrison inquest to which I referred has left lessons for eternity—certainly in south Wales—as to how mental health services should be run and not neglected. Competent representation for families guarantees transparency and candour, and no public authority should fear equality.

In this House, as we speak, there are about 10 members of the Bar, though I have not done an exact count. There are at least three in this row. Below the Gallery, we have the pleasure of welcoming Pete Weatherby KC, who has played such a significant part in the Hillsborough case which gave rise to this legislation.

I urge your Lordships to take into account that a glib answer—“We’ll see what we can do about inquests” —will not be persuasive. If we do not have clear answers to the questions so ably raised by my noble friend Lady Chakrabarti, and by my noble friend Lord Bach, we will come back and we will win on Report if we must. It is essential that there should be fairness in this crucial sector.

Baroness Ludford (Liberal Democrat)

My Lords, I speak in support of Amendment 102 in particular, and I thank the noble Lord, Lord Bach, and the noble Baroness, Lady Goudie, for putting it forward. I also thank the NGOs Hillsborough Law Now, Inquest and the Legal Aid Practitioners Group for their helpful briefings, including on this point.

Currently, Clause 20(1)(e) means that funding will be triggered only when a public body is designated an interested person—a process done by the coroner at the inquest. However, that designation often takes place a long time after the individual’s death. If bereaved family members have to wait until the inquest, they will be denied early access to representation. There could be complex investigations, including a criminal investigation by the police, and local independent reviews, particularly if the NHS or a local authority is involved.

The briefings make a striking point here. It says that inquest lawyers frequently report working on cases in which interested persons

“are designated one year, 18 months, two years and even four years after a death”.

All that time, the families of the person who has died will struggle to understand and wade through the process. They might need advice on how to secure a post-mortem —as has been mentioned—on data preservation notices, on making sure there is meaningful participation from the family in all the respective investigations, on securing evidence, on helping to review disclosure, and on lots of other processes that I am sure lawyers who have gone through inquests know all about. If the families do not get non-means-tested legal aid funding for this work they will be at a disadvantage. The word “parity”, which I think everybody is focusing on, will be devoid of real meaning in that context. I hope the Minister will give evidence of the Government understanding this point. Legal aid at an inquest is all very well, but it can be preceded by a long period—months, even years—when a family will struggle to understand what is going on.

I mention this only because inquests strike a chord with me, although not in a similar circumstance. My late husband died suddenly. An inquest was ordered, which I understand is routine for a sudden death. I played no role, as the spouse is not consulted or asked. Six months passed before the inquest took place. Even in that scenario, you face a process in a situation of grieving, without everything else envisaged by the Bill. I therefore experienced a slight echo of what bereaved families will go through: a lack of funding for legal representation in the potentially long run-up to an inquest.

Baroness Chakrabarti (Labour)

My Lords, it is very hard to talk about things such as that, so I give enormous credit to the noble Baroness, Lady Ludford, for speaking personally; it really added to our deliberations. I expressly support Amendments 102 and 114, in the names of my noble friends.

On Amendment 102, as my noble friend Lord Bach put so eloquently, parity is about rates but also timing, for the reasons echoed by the noble Baroness, Lady Ludford. If the public authority that may be responsible for scandalous behaviour, negligence or whatever it is gets a head start—on top of its higher rates, in-house lawyers and all the other things my noble friend mentioned—then the bereaved family will be even further reduced and even further behind. My noble friend put that so well. That is why my noble friend Lady Goudie was so right to home in on the issue of early timing for legal advice. It is incredibly important.

I will say a couple of words about Amendment 114 because my amendment should have been in this group. We agree that we are trying to achieve equality of funding for legal representation. I picked the ceiling, not the floor, for two reasons. One may make me look like an idiot, but others can decide that. The first reason was that I was wary of the argument we have now had from the Government that there is a range of public authorities: police forces, NHS trusts, quangos—the list goes on—so how do we know exactly what that rate is? I was right to predict that argument because it was in my noble friend the Minister’s speaking notes from his colleagues.

The second reason was that I was courting Conservative support. This is where my idiocy kicks in. I thought that Conservative colleagues in the Committee would prefer the cap, that we would not be bumping up spending and that it was not a lawyers’ charter—all the rhetoric about the Human Rights Act, the ECHR and all these terrible things. That was what I predicted. Instead, I got the inspirational comment from the noble and learned Lord, Lord Keen of Elie, that he would rather lift the rates than reduce them. In which case, there is all the more reason to support my noble friend Lord Bach.

That leaves us only with this difficulty; I am saying this only because my noble friend the Minister has said that he is open to engaging with this and getting it right before Report. How are we going to deal with all the different potential rates in every police force and NHS trust in the country, as well as the easier to predict Government Legal Department and Treasury Solicitor rates? I am sure that we can come up with a mechanism. I am convinced that there are any number of possible approaches to this. With good advice from government lawyers, we can come up with something. It could be a negotiation between the Legal Aid Agency and the public authority in an individual case. Where negotiation fails, it could be that the adjudicator, the coroner, or whoever is doing the inquiry makes a decision on it.

It is possible to achieve this. It is really not that difficult. Pre-emptive cost orders are made in other cases. That is a different regime, but things can be done by agreement or order, or they can be prescribed. We can do this in order to achieve the wish of the noble and learned Lord, Lord Keen of Elie, for parity, but by raising and not capping. I hope that this can be considered. I put it on the record now so that, in response to the Minister’s invitation to have further detailed engagement before Report, his colleagues in the department can do some thinking about this and come up with a range of mechanisms for achieving the understanding of what the public authority rate is likely to be and ensuring that we have real parity—not the wink and the nudge towards it that we have currently in Clause 20, but an absolute parity on both timing and funding rates.

Lord Alton of Liverpool (Crossbench)

My Lords, it is always a pleasure to join forces with the noble Baronesses, Lady Chakrabarti and Lady Ludford. I want especially to thank the noble Baroness, Lady Goudie, and the noble Lord, Lord Bach, for the way in which they introduced Amendments 102 and 114. The noble Lord, Lord Bach, will recall that we joined forces back in 2012 on the Legal Aid, Sentencing and Punishment of Offenders Bill, known as LASPO, to challenge the levels of legal aid that were being made available. I was thinking of the sardonic analogy that was drawn during those debates about how justice was open to all—just like the Ritz hotel. In other words, there are people who, because of their resources, get far greater justice than others.

I associate myself very much with the remarks that have been made about those who will be subject to the constraints and the opportunities that will be opened as a result of this new Bill, which I reiterate that I totally support. I am glad that the Government have brought it forward.

I want to raise a slightly different question about resources—the resources to the coroners’ service itself. I want to follow up the letter which I sent to the Minister, the noble Lord, Lord Lemos, on 6 October, concerning the impact that the Bill will have on coroners and the implications of the funding arrangements to which these amendments and others that we discussed in the previous group will refer.

First, I thank the noble Lord, Lord Lemos, for his customary diligence in responding rapidly to that letter; he replied on 12 October. I would be happy for the correspondence to be placed in the Library of the House. In essence, everything in his reply can be summed up in these words that he used:

“It is not currently possible to produce a meaningful estimate of the impact on the coroners’ service”.

That is asking us to give a green light to this legislation without knowing whether the resources will be there to do the sorts of things that have been referred to in these debates.

I asked in the letter that I sent to the Minister what thought had been given to the direct impact that would arise from the provisions creating a power for the coroner or inquiry chair to raise concerns about the conduct of a public authority or their legal representatives during proceedings, and the requirement for those conducting or participating in a statutory inquiry or inquest to have regard to an overriding objective to ensure that affected persons are able to fully and effectively participate in the proceedings. The key question that I posed there, and pose again this evening, is around resources. There is an old saying that you cannot make a silk purse out of a sow’s ear. This is a silk purse of a Bill—it is an excellent Bill—but we have to do better than giving sow’s ear resources to making it work. The key question, as I say, is about resources.

I am told that the financial impact assessment for the new legislative burdens makes provision based on assumptions for an average legal aid cost of £65 million to £180 million per annum. However, in paragraphs 43 to 46 of the same impact statement, it states:

“These measures may give rise to direct and indirect impacts on the overall resource burden on Local Authority funded coroner services. The potential resource burden identified will largely be driven by those cases which proceed to inquest”,

and that the Government have said that they

“anticipate these impacts can be broadly absorbed within existing provision”.

However, given the extraordinary range in the figures that I have just cited, I do not know how on earth that statement can justifiably be made.

Let us contrast that with the report that appeared on 29 July, in the Law Society Gazette—indeed, one of the figures that the noble Baroness, Lady Goudie, gave is referred to in that report. It says:

“Firms will shortly be invited to bid for brand new legal aid contracts to do inquest work ahead of an expected surge once the so-called Hillsborough Law comes into force. The government estimates that the Public Office (Accountability) Bill will increase the number of legally aided inquests from the current 200-400 to as many as 11,400”.

If that is correct, it will create a significant financial burden on funding to the relevant authorities.

That burden is not simply financial. I note that, according to the Judicial Attitude Survey,

“Salaried judges and coroners had the highest stress levels. Only 1% of salaried judges, 6% of fee-paid judicial office holders and 0.6% of coroners reported no work-related stress”.

That is on the basis of the current caseload. Given the new burdens, from where are the additional coroners to come from and how are they to be funded? I was particularly taken, as always, by what my noble friend Lord Carlile of Berriew said to the Committee a little earlier: inquests are a search for truth, not a contest of resources. We have to get this right.

The Minister may suggest a post-implementation review. I do not want to steal his thunder, but I suspect that may be one of the things he will say to the Committee: that they will look at the new burdens on the coroners service. Let us bear in mind the experience of the implementation of the Coroners and Justice Act 2009. I cited that in my letter and, in his response, he said, “I was the Minister at the time and we were not the Government at the time”. That is fair enough, but we can surely learn from the lessons that arose out of that legislation.

This time, it will be the families who suffer—those for whom this Bill is supposed to offer remedies. Let us go to the core of what this Bill is supposed to do. It is supposed, not least, to be for

“a duty on public authorities and public officials to act with candour, transparency and frankness; to make provision for the enforcement of that duty in their dealings with inquiries and investigations”.

It is “to make provision”, so are we going to make provision or not? We must go to the heart of that, because if we do not, we will be held to account later on for raising hopes and aspirations and then not delivering. If there is not to be candour and frankness about how the coroners are to implement the promises of the Bill, we will risk undermining its efficacy and, indeed, trust in Parliament. If the Bill included no new demands, which of course it does, that would beg the question: what was the point of the legislation at all? It does have new demands in it and, clearly, they must be met with resources.

The Minister is doing an excellent job in this Committee; I think all of us admire him for his patience and for the granular way he has gone into the detail of this with members of the Committee and listened to our concerns. I hope that he will address some of these questions and allay some of our fears when he comes to respond later.

Lord Wills (Labour)

My Lords, I put my name to Amendment 114 because I agree with every word that has been spoken by noble Lords in support of these amendments. I do not want to repeat all the excellent points that have been made already, but I do want to try to reassure the noble Baroness, Lady Chakrabarti, that there are remedies. She is very confident about them, and so am I. I am confident because some of them have already been suggested in debate during this Committee. I pay tribute to my noble friend the Minister, just as the noble Lord, Lord Alton, has done, for his patience and solicitude towards every Member of your Lordships’ House. I know he is aware of the fundamental importance of these amendments, and I hope that he will be able to make real progress in addressing them so that when we come to Report, he will be able to give this House some positive messages.

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, I have signed Amendment 114. I fully support not only that amendment but Amendment 102, moved by the noble Baroness, Lady Goudie. These amendments are there to make Clause 20 work as intended, supplemented as it is by Parts 4 and 5 of Schedule 6 on legal aid at inquests and at inquiries into fatal accidents and sudden deaths in Scotland.

These provisions have been principally discussed outside this House and the other place as impacting on parity and as being about equality of arms at inquests, but they are also about timing. That was a point well made by the noble Baroness, Lady Goudie, and the noble Lord, Lord Bach, and movingly brought to life additionally by my noble friend Lady Ludford. She highlighted the obvious reality that the early stages of the coronial procedure are the closest to the deaths involved, when the pain and confusion for the bereaved, and the challenges of unfamiliarity with the process, are at their highest.

This is not only about early access on representation; it is, importantly, as my noble friend Lady Ludford said, about investigations. It is also a question of evidence. Late representation means that any evidence-gathering by the families, which needs to be professionally undertaken, may be badly delayed and therefore stale and often less effective. That applies to expert evidence as much as—indeed often more than—it applies to lay evidence. Expert evidence can be contradictory on really important issues, and those relating to deaths may be issues very much in point. Late instruction gives one of the interested parties a very significant and utterly unfair head start, so it is crucial that representation and advice are available from a very early stage from all those points of view.

On the question of representation at hearings, one of the really shaming features of inquests, and I would add of inquiries, particularly but not exclusively after major tragedies, has been the ability of public authorities or their contractors and suppliers, who are in the frame—if I may use that expression—so at risk of being blamed for what has gone wrong, to hire teams of very expensive lawyers, investigators and experts to deploy detailed and complex evidence and arguments to deflect blame from their clients. At the same time, the victims have frequently been unable to afford either any legal representation or any comparable legal representation to ensure that the victims get a proper hearing of the other side of the case and that the evidence on behalf of those putatively responsible is properly examined by the teams available to the bereaved—examined, interrogated and, where necessary, contradicted or undermined during the coronial or inquiry process.

It is similar to the point made in relation to whistleblowers by my noble friend Lady Kramer, which is of alarmingly wide application. Clause 20(1)(d) and (e) are directed at redressing the imbalance between victims and bereaved families and the public authorities which risk being held responsible for fatal disasters. They do so by imposing “an overriding objective” that victims and others

“are able to participate fully and effectively”

in any inquiry or inquest. Clause 20(1)(e) will provide for legal aid

“without a means test, to bereaved family members where a public authority”,

or, as we would say, its private contractors, is involved. I add that in relation to the position of private contractors providing public services to public authorities and the Minister’s response on this point in the last group. I hope we will be able to discuss the position of private contractors within the various provisions of the Bill, because I still find the Government’s position on this issue a little obscure.

While welcome, those sub-sections that I have outlined are not enough to redress the imbalance inherent in the Bill, even as it now stands, or to provide anything like equality of arms or parity. The importance of Amendment 114 is that it would ensure that legal aid rates for inquests are at rates comparable to those paid for the public authority’s legal teams, as the noble Baroness, Lady Chakrabarti, explained in her speech. That amendment may require fleshing out, but the iniquity in this context of unacceptably low rates for legal aid work has to be addressed.

The growth of legal aid deserts—the unavailability of competent lawyers qualified and willing to undertake any heavy civil work at current legal aid rates—has been a scandal on which the noble Lord, Lord Bach, and many of us have frequently spoken in this House. That applies particularly to what we all agree is the complex work which often falls to be tackled in the wake of disasters which have impacted so heavily on the lives and the plain ability to cope of those needing fair, skilled and sympathetic expert representation. It is a particularly egregious failure of our system that the failure to ensure such representation has such a serious effect on the victims of disasters for which our public authorities bear, or may bear, prime responsibility.

Lord Keen of Elie (Conservative)

My Lords, I will begin by addressing Amendment 102 in the name of the noble Baroness, Lady Goudie, and then turn to the amendment in the name of the noble Lord, Lord Bach, although, for reasons that I will come on to, there is a link between the two. Beginning with the first amendment, the government drafting is clear in the Bill. The legal aid duty applies where a public authority “is” an interested party, and the noble Baroness’s amendment would extend that to where a public authority “is likely to be” an interested party. The danger there is the potential uncertainty and vagueness in that designation.

I appreciate the point that is being made about delay with regard to the matter of interest, but I wonder whether it has to be addressed by means of the amendment proposed by the noble Baroness, Lady Goudie. It strikes me that, in the vast majority of cases, it should be possible administratively, by reference to the coronial procedure, to allow a bereaved family to apply to the coronial jurisdiction for a determination at a very early point that a public authority is an interested party. As I say, in the vast majority of cases, that will not be terribly difficult, whether it be a death in custody or hospital or elsewhere. However, what is required is a fairly straightforward administrative change to allow that sort of incidental application to be made to the coroner at a very early point in time. That would, I hope, address the point that has been raised and spoken to by a number of noble Lords.

Amendment 114 in the name of the noble Lord, Lord Bach, refers to a “relevant public authority”. A relevant public authority is an interested public authority, so we have to bear in mind that point. I am not trying to pick up on a drafting issue; it is just to underline the importance of identifying the interested public authority at an early stage. I quite understand the desire to secure parity of representation. I am not sure I went quite as far as some might have believed I had gone when suggesting that all fees should be raised, although I believe it is a popular mantra, in so far as the legal profession is concerned—and one with not a little justification, let us be clear, not only in the context of these procedures but more broadly.

That brings me to a wider concern, which is not only the timing of inquiries but the cost. Expanding legal aid support in a case of small, targeted and potentially fast-moving inquests may not have a significant effect upon the legal aid budget, but in broader inquiries or inquests it could be very considerable indeed. One has only got to take as an example the Covid inquiries, in which, if legal aid was proposed to be covered for those inquiries at what I refer to as commercial rates, the impact on the legal aid budget would be enormous. There is a balance to strike here, and it is a difficult one. I hope the Minister will address the way in which this Government are going to determine that balance going forward. It may require a more detailed impact assessment before this sort of amendment could be processed.

I express my sympathy with the need for parity of representation, but the mechanism for achieving it is perhaps more complex than we are at present prepared to accept.

Lord Lemos (Labour)

My Lords, Amendment 102, tabled by my noble friend Lady Goudie, would widen the circumstances in which legal aid is available for an inquest and introduce funding at an earlier point than currently envisaged by the Bill. The Government understand the concern, which has been endorsed and restated by a number of noble Lords, that underpins my noble friend’s amendment. Bereaved families can face an extremely difficult period following a death. While welcoming the expansion of legal aid, stakeholders have consistently highlighted to the Government concerns about the support available during the period between a bereavement and a formal inquest, particularly when families may be unfamiliar with coronial processes and uncertain about how they can or should participate in these proceedings. I therefore hope my noble friend will agree that the Government are mindful of the problem; we are not at all seeking to deny or minimise it.

Under this Bill, for the first time, non-means tested legal help and advocacy will be available for all inquests in which a public authority is an interested person. The Bill deliberately uses interested person status as the trigger for eligibility. The reasoning behind that, as the noble and learned Lord, Lord Keen, suggested, is that it provides a clear, objective and recognised point at which legal aid becomes available.

This amendment would replace that approach with a test based on whether an inquest is likely to take place and a public authority is likely to become an interested person in that inquest. To be candid, we are concerned that replacing the Bill’s objective legal aid trigger with a more subjective assessment, based on whether a public authority is likely to become an interested person at an inquest, could cause operational complexity and uncertainty about when legal aid should be granted. This would create a risk that funding is provided in cases in which it is possible that a public authority is never ultimately designated as an interested person, or indeed when an inquest is not necessary, or the coroner does not have jurisdiction to investigate a death.

We recognise, nevertheless, that where a public authority is an interested person in an inquest, this needs to be identified as soon as possible to provide certainty to bereaved families and legal aid providers, and we are working to ensure that all those working in the system are aware of the importance of early identification where possible. I noted the comments by the noble and learned Lord, Lord Keen, about the procedures that should make this run much more smoothly, and I think there is a good deal of common sense in that.

We also acknowledge the importance of ensuring that bereaved families understand their rights and the whole coronial process which, for many of them, will perhaps be—fortunately, I might say—their first encounter with that process. We want them to be able to participate effectively in proceedings and have confidence that the process has been fair and properly conducted. The Government are therefore also considering what more could be done to support bereaved families during that period, in a number of ways.

We are open—the noble Lord, Lord Carlile, predicted I would say this, and it is the least well-kept secret in the whole afternoon—to continuing conversations on this issue with Peers and stakeholders, about how we can ensure the families get the support they need. I noted the comments by the noble Lord, Lord Carlile, about bringing the amendment back on Report. I was not surprised to hear that, and I look forward to continuing the discussions before we get to Report.

I also noted the noble Lord’s comments about soap operas. I am afraid one of the unfortunate things about this job is that I have lost the plot of most soap operas.

I now turn to Amendment 114, tabled by my noble friend Lord Bach. Section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 sets out that the Lord Chancellor must secure the availability of civil legal aid as required under legislation. The Government consider that it is this test which best serves the interests of bereaved families and the aim of the Bill, and that amending the Bill to require specific legal aid rates is therefore not necessary.

The Government consulted, between May and June this year, on proposed changes to legal aid fee schemes for inquests, in connection with the legal aid elements of the Bill. We will publish our consultation response in good time for Royal Assent and prior to commencement of the legal aid provisions of the Bill. We will obviously closely monitor the effectiveness of legal aid arrangements for inquests to assess whether the Lord Chancellor’s responsibility under LASPO is being met and consider any changes to arrangements where necessary.

I briefly turn to comments by the noble Lord, Lord Alton, about the cost to coroners. He quoted some of the forecasts in our impact assessment. I think he suspected I would say that we will keep these under review, and we will. I will just say—and I am sure he will understand this—that, having spent some time looking at those forecasts myself and questioning them with officials and so on, I think that forecasting the costs is a very difficult area. One of the problems in the justice system generally, as all noble Lords know, is that we are apt to move costs around it in different ways, and we do not always predict accurately the consequential effects elsewhere in the system, which is the point that the noble Lord is drawing our attention to. I am not suggesting that we will not do it at all—we obviously must assess and review these costs in the coronial process—but I am sure he will agree that, at this stage, it is not an easy forecasting exercise.

For the reasons I have set out, specifically in relation to achieving something that is objective and well understood, I respectfully ask the noble Baroness to withdraw her amendment.

Baroness Goudie (Labour)

I look forward to the Minister’s and the department’s response on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment 102 withdrawn.

Amendments 103 and 104

Amendment 106

Baroness Kennedy of The Shaws (Labour)

My Lords, I apologise for not participating in the Second Reading of this Bill. I am afraid that I had caring responsibilities which made my presence impossible.

The Bill is very close to my heart and I endorse many of the things already discussed about legal aid and participation in inquests. This particular amendment, if I might explain, seeks to grant individuals affected by public authority failures in court the right to make a court application to correct the public record. The idea stems from the experience of those who lost family members in the terrible Hillsborough disaster. Amendment 106 was developed to address the injustices suffered, and I am here speaking particularly for the Hicks family. That is why we refer to this as the Hicks amendment.

The amendment is named after Victoria and Sarah Hicks, two teenage sisters who were killed in the Hillsborough disaster. Victoria and Sarah were among the 97 Liverpool supporters unlawfully killed at Hillsborough in 1989, as this Committee knows only too well. Earlier this year, their parents, Jenni Hicks, who is sitting behind the Bar, and Trevor Hicks, launched a campaign seeking formal recognition that their daughters did not lose consciousness within 30 seconds and die shortly thereafter, as South Yorkshire Police claimed for years, but actually suffered for significantly longer than the narrative that was produced and promulgated by the police. Indeed, the official court records stated that Victoria and Sarah were unconscious within seconds and died within minutes during the disaster, despite overwhelming evidence from subsequent inquiries showing this was untrue.

Victoria, aged 15, was the only female child victim of the crush. Multiple witnesses reported that she was crying and in distress for some time. Her sister, Sarah, aged 19, was seen by numerous witnesses who described her as being intensely distressed and panicked about the fate of her sister, and calling out for assistance. She was even seen desperately trying to hold her sister up in the surging crowd. This was not a matter of just seconds. It is now known that Victoria and Sarah may have survived for some time, up to an hour after the fatal crush started.

The 30-second rule was relied upon in civil litigation following Hillsborough to argue that victims lost consciousness almost immediately and therefore did not suffer, and so their families did not need compensation. The argument was relied upon in the early 1990s, when Jenni Hicks and Trevor Hicks brought a test case against South Yorkshire Police for the pain and suffering their daughters endured as they were dying. This was the lead case, intended as a test case to help all the victims of the Hillsborough disaster. That case was dismissed throughout court proceedings and came all the way up to this very building, to the Appellate Committee of the House of Lords, which at the time was our highest court. It was brought here on the basis that the girls were assumed to have lost consciousness almost immediately. That was the position that the police vehemently put forward, relying on rather inadequate medical evidence that they had “swift and sudden” deaths.

However, the Hillsborough Independent Panel of 2012 and the fresh Hillsborough inquests from 2014 to 2016 have since made it clear that this assumption was fundamentally flawed. Medical and expert evidence of a superior kind demonstrated that many victims remained conscious for up to an hour and possibly even longer. The medical evidence heard by the fresh inquests was that those who died from asphyxia at Hillsborough were likely to have been subjected to pressure that waxed and waned, and were likely to have suffered physical injuries and fluctuating levels of consciousness over extended periods of time. It is clear that this is what happened to both girls. I know it is painful for their mother to hear me describe it in this way.

Despite those findings, the original court rulings and the legal record they created have never been formally corrected, and there is no way, currently, for Jenni and Trevor Hicks to have the correction made without South Yorkshire Police’s agreement. With the new campaign, Jenni and Trevor have been calling for the record to be set straight and for a “Hicks Rule” to be introduced, so that people in similar circumstances are able to easily correct the official legal record where it is wrong, and that that should be possible in future. Jenni Hicks, from Liverpool, said:

“For more than three decades, the law has recorded something about”

her daughters

“that we now know simply isn’t true”.

This is not about compensation. It should be known that the legal efforts followed an out-of-court settlement from South Yorkshire Police relating to historic claims brought by the family, so there has been compensation, but it was a settlement reached without any admission of liability and without any formal public correction of the earlier court finding. As Jenni Hicks said:

“This is not just about correcting it for our beautiful daughters, it’s for everyone who died that day, and for other families that find themselves facing similar injustices and incorrect legal records”.

History should record what really happened. “The injustice here”, says Trevor,

“is not abstract. Because the courts accepted the police version of events, we were told our daughters didn’t suffer. We were told the law could do nothing more for them. That was wrong then, and it’s wrong now”.

In February this year, I hosted a parliamentary session featuring Jenni and Trevor Hicks. Among the speakers was their lawyer, Caoilfhionn Gallagher, an eminent King’s Counsel—who is also here, sitting behind the Bar—and her team from Doughty Street Chambers who supported her in the legal work during the inquiries. They were all there—as indeed was Andy Burnham, before he became the Prime Minister—to speak about the importance of this change in law. The implementation of the Hicks amendment in legislation would allow victims of injustice to apply for the correction of the record by this very simple legal procedure. It is not as though there is not precedent: there is a similar use of corrective mechanisms in defamation and family law proceedings regularly.

However, because of the high threshold established in the clauses we have drafted, the Hicks amendment could not be used to entertain frivolous applications. This is not going to be about nominal changes, things that are basically of a trivial nature but which disturb people; this is about serious matters.

Statements have been made in open court in defamation proceedings. There is a famous case, Murray v Associated Newspapers, where Mrs Murray—otherwise known as JK Rowling—was given permission to make a unilateral statement in open court. There are other cases, such as Webb v Lewis Silkin. Only 10 years ago, the High Court determined that the same principles of statements in open court that apply for defamation law could be carried over and used in relation to cases where there was an abuse of private information and breaches of confidence. Similarly, in the Cliff Richard case against the BBC—noble Lords will remember the appalling circumstances in which his arrest was filmed and so on—it was possible for a statement to be made in court.

This really is about setting the record straight, which can be vitally important for public confidence in our systems. We have drafted this amendment in a way that prevents misuse of it, and we call on the Committee to accept the amendment.

Lord Alton of Liverpool (Crossbench)

My Lords, I am a signatory to Amendment 106 along with the noble Lord, Lord Wills, and the noble Baroness, Lady May of Maidenhead. It is always a pleasure to support my friend the noble Baroness, Lady Kennedy of The Shaws, and to make common cause with her on this, as on so many other things.

On Monday last, during the second day of Committee, we spent a lot of time considering the ways in which a farrago of self-serving deceptions had been allowed to replace the truth. During our debates, I referred to the 1989 inquiry established by the Government and chaired by Lord Justice Taylor, which was established to find out what were the facts and what had actually happened and occurred at Hillsborough. In reality, though, as we heard on Monday, facts were superseded by fictitious and misleading accounts.

My noble and learned friend Lady Butler-Sloss intervened to say that

“if … you are given a whole lot of false information or not given the relevant information, the report you make will not be correct. That happened to the late Lord Taylor, who was later Lord Chief Justice of this country. Just think how he would have felt if he was alive today to find that he had written a completely useless report

As is so often the case, my noble and learned friend went to the heart of the matter. This amendment today builds on that and invites your Lordships to consider how a mother and a father would feel if they knew that a wholly inaccurate account had been given about the deaths of their two daughters—if they knew it had been a completely wrong and useless report. That is the situation in which the parents of Victoria and Sarah Hicks, those two teenage sisters who died at Hillsborough, have had to endure for these subsequent decades.

The 1992 Hicks judgment, Hicks v Chief Constable of South Yorkshire Police, referred to by the noble Baroness, Lady Kennedy of The Shaws, was brought by the parents of Sarah and Victoria. We heard how that judgment had been given here in the House. At that time, the Appellate Lords sat in Committee Room 1, which was where my noble friend chaired the meeting to which she referred, on 9 February this year, which I attended and participated in, along with Andy Burnham, then the Mayor of Manchester. We heard from Jenni and Trevor, and, as we have heard, from their lawyer, Caoilfhionn Gallagher KC, their plea for the correction of the original court record, which had not been able to happen without the agreement of South Yorkshire Police.

As we heard in the two quotations from the noble Baroness, Lady Kennedy, which I will not repeat, this is not about those children alone; this is about other people’s children as well. This is about the common good and ensuring, as they put it, similar families do not find themselves facing similar injustices and incorrect legal records. This is about a wider public interest, which is why I so admired their tenacity, courage and dignity when they came to speak at this meeting. This amendment is not just about setting the record straight; it is about people in similar circumstances being able more easily to correct the official record when necessary.

The high threshold set out in subsection (2) would prevent its abuse in frivolous applications. It is very important for the Committee to note that this cannot just be used by anybody to reopen any case where they may feel some grievance, for whatever the reasons may be. There is a high threshold that would have to be met.

The amendment sits well with the duties in the Bill to search for truth, candour and transparency. I hope it will commend itself to the Minister, the noble Lord, Lord Lemos, and to the Government, and that we will be able to incorporate it or something like it when we get back here on Report.

Lord Wills (Labour)

My Lords, I have added my name to this amendment, but I cannot say anything really to add to the eloquent case for it made by my noble friend Lady Kennedy and the noble Lord, Lord Alton. It is quite straightforward. It has been expertly drafted, it is quite simple and it is a matter of justice, not just for Jenni and Trevor Hicks, who suffered so much for so long, but to stop other families suffering in the same way in the future. I hope it will commend itself to my noble friend the Minister.

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, I speak in this group only to add our support for this amendment, so eloquently moved by the noble Baroness, Lady Kennedy of The Shaws, and supported by the noble Lords, Lord Alton and Lord Wills. The point is not in any sense an academic one. Public records matter; history matters; reputation matters. We should not underestimate the justified sense of deep grievance that falsehood generates.

It is one of the great oddities of our system that a justice system that, throughout my life, I have believed genuinely values the truth, and does so at the stage of hearing cases, fails to offer the elementary protection offered by this amendment for the truth where the record is so plainly wrong, unfair and misleading.

Lord Lemos (Labour)

My Lords, I thank my noble friend Lady Kennedy of The Shaws, and I thank those who have raised awareness of the Hicks family campaign. I knew the sequence of events that led to this amendment, but it is still a harrowing sequence of events, and it is important and difficult for us all to understand how difficult and grieving it must be for the family to hear these events recounted. I agree with the noble Lord, Lord Marks, that part of the grief that surrounds these events is the circumstances that have led to this campaign, so I pay tribute to the family.

The Government recognise the profound suffering of the family and absolutely understand the motivation and the heartfelt sincerity behind the amendment. I have great sympathy for the family’s distress, as I have said. We absolutely, openly, clearly and unequivocally acknowledge the findings of the later Hillsborough inquiries and inquests, and the family’s entirely understandable and important wish to ensure that future generations clearly understand the circumstances of Victoria and Sarah’s deaths. Transparency and the pursuit of the truth are, after all, at the heart of the Bill and the endeavour it represents. The Government are committed to working with Peers and indeed the Hicks family on the best way we can make the truth known, not just for this case and not just for the experiences of Victoria and Sarah, but for all those whose lives were lost at Hillsborough.

I shall address directly the amendment before us and set out the position of the Government. We have looked at it carefully, and we are not sure that this is the best way of achieving the outcome which my noble friend set out, and for which there has been so much support in the Committee. The intention of this amendment is to allow the public record to be corrected via a new legal avenue of a statement being made in open court. It is important to make clear—this is a really important point—that court judgments do not constitute an official record of historical facts; rather, they represent a court’s determination of the issues before it, on the evidence presented by the parties to a case. Inquests and public inquiries are designed to perform the function of establishing certain facts through an inquisitorial process. It is that which has led to the concerns we are discussing here.

Therefore, creating a mechanism to correct facts contained in historic court judgments would, in the Government’s view, likely create risks and have disproportionate implications for established legal and judicial principles, which exist for important reasons. The law has long recognised the importance of finality in litigation. The doctrine of res judicata generally prevents parties relitigating matters once proceedings have been fully concluded. This gives parties the assurance that the matter is settled, providing certainty and stability. It also supports legal certainty, which is a fundamental tenet of the rule of law.

Baroness Kennedy of The Shaws (Labour)

I am sorry to interrupt, but I cannot hear what the Minister is saying. I would ask him to raise his voice, so that we can all hear.

Lord Lemos (Labour)

I thank my noble friend for pointing that out.

I appreciate that her amendment is not intended to allow people to reopen concluded proceedings, and this is also not the intention of the Hicks family. However, creating a statutory process linked to historic judgments creates a risk that cases will be de facto relitigated. These risks would need to be carefully considered and the amendment as it stands does not take them into account. We would need to consider the legal status of any statement of this nature. The legal effect of this amendment is unclear and it does not specify whether the statement may be challenged, how the statement would interact with an original court judgment, or whether future courts may rely upon it. Without clarity on these fundamental questions, there is a significant risk of legal uncertainty and unintended consequences.

I am sorry for that rather dry assessment, but we have carefully looked at the amendment as drafted. I know that this is not the intended effect of the amendment, as my noble friend has set out, and I thank her and the Hicks family for working to find an option that achieves the intention of the campaign. Though we cannot support this amendment as currently drafted, the Government and I remain willing to work with her and the Hicks family to explore whether any alternative approaches could achieve the objective of ensuring that later authoritative findings of fact, of the sort that the Hicks family are concerned about, are brought to the attention of those reading historic judgments which may not reflect them. In the light of that, I respectfully invite my noble friend to withdraw her amendment.

Baroness Kennedy of The Shaws (Labour)

I must say that I am disappointed. Knowing that this was the position of the Government, it would have been helpful to have had an indication at an earlier stage, when I could have met with the Minister to discuss some sort of alternative. We are dancing on the head of a pin when we start saying that there are likely to be disproportionate implications.

What is being sought here is a simple correction of reality; it goes back to the business of truth. Yes, finality is important, but we are not getting finality when people are given the idea that these two young people died within seconds when that is not the truth. We are supposed to be pursuing truth in this Bill.

I am deeply disappointed. I will withdraw this amendment, but I hope that the invitation to find another way of correcting this is going to come soon.

Amendment 106 withdrawn.

Amendments 107 to 114 not moved.

Amendment 115

Baroness Brinton (Liberal Democrat)

My Lords, I have in this group Amendment 115, also signed by the noble Baronesses, Lady Benjamin and Lady D’Souza, Amendment 123, also signed by the noble Baronesses, Lady Ludford and Lady D’Souza, and Amendment 146, also signed by the noble Baroness, Lady Ludford. I have signed Amendment 121, tabled by the noble Baroness, Lady Benjamin.

During the passage of this Bill, we have spoken of many tragedies and disasters that have had inquiries, inquests and/or compensation schemes. These include Hillsborough, which we were just speaking about, Post Office Horizon, Grenfell, Windrush and the Manchester bombings, as well as the atomic war veterans, sometimes known as the nuclear war veterans, who rightly feel that they are struggling to be heard, despite the atomic tests taking place up to 70 years ago. This week, we have heard moving accounts from survivors of the Aberfan disaster, 60 years ago this week, who say they have not even got to first base on being heard.

Across all of these and other tragedies, victims tell us that their experiences of compensation schemes were extremely difficult and often retraumatising. Often, they had thought that it was just their scheme—indeed, I have sat in this House while one Peer after another has said, “Well, it is all right for that scheme, but our scheme is a disaster”. That is not the case. The problems are common and consistent.

It is helpful that, on 5 July 2024, the National Audit Office published an excellent report, Lessons Learned: Government Compensation Schemes. This report was published just after the infected blood compensation scheme came into being in the Victims and Prisoners Act 2024. The IBCA started the latest stage of inquiries, investigations and compensation, which had all started in the late 1970s and 1980s. The infected victims were assured that, where medical information had been lost, there would be a simple mechanism used that would assume when, for example, a victim had been infected. Two years on, processes have quietly changed, and this promise, as far as the victims are concerned, has been broken. Many are being asked to find bits of paper that they did not have originally in order to prove when they got infected. Compensation arrangements also needed to be changed where somebody had died, which caused a lot of distress—then IBCA and the Government are surprised that people feel retraumatised. All the officials I have met who are involved with either IBCA or the Cabinet Office and other departments have genuinely tried to work to the best of their ability. I am not trying to be rude about them. However, there is something in the system of compensation schemes that is problematic.

The NAO report sets out clearly what has gone wrong over the years in many schemes. Its Appendix Two sets out a total of 15 schemes, from the Armed Forces compensation scheme to the Windrush scheme. The NAO also assessed the structures and processes for each of these schemes. It is noticeable that they are all different from each other, and the NAO has drawn conclusions.

It is important to note, as the Haemophilia Society briefing said, that uniquely among the dozens of government compensation schemes that have been established over the years, the infected blood compensation scheme is delivered by an independent body, IBCA. While it is welcome in principle, the establishment of a large new organisation has led to teething problems, including technical and operational issues, delays to compensation, and unclear accountability and feedback mechanisms. It says that the experience of the infected blood community points towards the need for a permanent, independent compensation body. Such a body would retain institutional memory, expertise and experience, save time and money when a scheme is set up, and be capable of ramping up and down according to need. With the best will in the world, that is not really part of the Cabinet Office’s brief; it is often dealing with other crises on a day-to-day basis.

The Haemophilia Society goes on to say that we also need to consider a national oversight mechanism to really ensure that lessons are learned. That is because there were early missteps in the Government’s handling of the most recent case after the Victims and Prisoners Act came into force—I will not relitigate that. A national oversight mechanism should be established to monitor and scrutinise the implementation of the recommendations from all public inquiries and to hold the Government to account.

That is why my Amendment 115 sets out how we might come to a body that both combines the oversight mechanism and holds within it the power to deliver some of the compensation body. At this point, I must confess that I had both a Private Member’s Bill and amendments to the then Victims and Prisoners Bill to set up a single compensation body. I listened to the points that were made by both the previous Government and the current Government. My amendment says that it should not be IBCA that does everything; let us make sure that, if it is part of an oversight body, it could also supervise other schemes that are set up, using the knowledge and understanding that it has.

The NAO report gives a couple of examples that might help us understand what the issues are. It states that stakeholders have been alienated by the initial response of the government bodies—the same bodies that are now involved in delivering the compensation scheme. That is why we need IBCA, not government departments or arm’s-length government departments, running the compensation scheme.

The NAO is very clear on retraumatisation. It quotes from five different examples, including one from the vCJD compensation scheme:

“A scheme to be regarded as acceptable should provide an appropriate payment with the minimum of delay and without the need for repeated and painful persistent inquiries”.

Ever since then, all the compensation schemes have had that problem. Sir Robert Francis’s infected blood compensation study recommended that the application process for the scheme should be

“as simple, sensitive, ‘trauma-informed’ and undemanding as possible”.

I have to say that that is not the view of the victims at the moment; with the best will in the world, it just has not worked like that. On the Post Office Horizon scheme, the report quotes

“the importance of establishing a clear position on evidential thresholds which acknowledges the trauma experienced by claimants early on in the process”.

In response to all that, the NAO states:

“It is important that scheme designers and administrators work to minimise any re-traumatising effects of the process on claimants”.

Other parts of this amendment set out how things will happen and who should do it. I will not go through the detail as it is very much as noble Lords would expect. Proposed new subsections (12), (13) and (14) provide accountability and transparency, from both PACA—the authority to be established—and the Secretary of State reporting to Parliament. The NAO is right: as there are many victims and groups from the various disasters and tragedies, we need consistency and expertise for compensation schemes, separate from the Government and those involved in the problems and cover-ups. That is what my amendment seeks to do.

My Amendment 123 seeks to provide legal aid for seriously injured survivors participating in inquests or inquiries. I will not repeat everything that has been said so well in earlier groups, except that this group was excluded from that discussion. It is a very particular group. With both the Hillsborough disaster and the Manchester bombings, people who were still recovering from very serious injury were asked to be witnesses at inquests. The very least that a state can do is to say that although these people may have been earning above the threshold in normal times, at this moment they not only have extra costs because of their injuries but may have had to stop work until they recover enough. This is not because they are witnesses in their own cause; they are helping the country to ascertain what happened when other people died. That also helps to make the argument as to why this case should be special. My Amendment 146 is consequential on Amendment 123.

I will speak only very briefly to my noble friend Lady Benjamin’s Amendment 121, because I know she will speak to it very powerfully herself in a minute. She and I have talked about the problems that the Windrush scheme faces. In her amendment, she asks for an independent review into what has gone wrong so far. I know, from my brief on the other inquiries, that this is not an unusual ask. However, one of the problems we have is that Government after Government have delayed having that independent review, which has not just made life much harder for the victims when, eventually, the Government have had to have another inquiry and another compensation scheme but cost the country a very large amount of extra money in the intervening, often many, years.

I look forward to the Minister’s response and hope that we might be able to meet between Committee and Report. I beg to move.

Baroness Benjamin (Liberal Democrat)

My Lords, I support and have put my name to Amendment 115 in the name of my noble friend Lady Brinton, who spoke beautifully and passionately. I will also speak to my Amendment 121, which is signed by my noble friend and the noble Lord, Lord Bailey of Paddington.

My amendment is about why there should be an independent review, following the Windrush Lessons Learned Review by Wendy Williams. In March 2020, Wendy Williams’s review was laid before Parliament, featuring 30 recommendations. Six years later, lessons still have not been learned. The report outlined three important elements which needed to be addressed. First, the Home Office should acknowledge where the wrong had been done; secondly, it should open itself up to greater external scrutiny; and, finally, it should recognise that migration and wider Home Office policy is about people and, whatever its objective, it should be rooted in humanity and compassion.

The last review of progress was conducted over four years ago in March 2022, also by Wendy Williams, when it was found that only 21 out of her 30 recommendations have been met or partially met. There has been no comprehensive review since, despite encouragement in that report to make sure that any changes are irreversible and, importantly, to review progress at different stages in the future. The recommendations included the need to

“assess and limit the impact of the hostile environment on the Windrush generation”;

to have a better understanding of the public sector equality duty; and to have meaningful engagement

“with stakeholders and communities to develop, implement and evaluate policy”.

I support Amendment 115 because there has been dismal failure on the part of the Home Office to proactively identify people and encourage survivors to come forward. It has not always acted with candour, transparency and frankness. The hostile environment policy caused state harm to an estimated 15,000 people, but a report in April 2026 by the National Audit Office found that, by January 2026, only 3,148 claims have resulted in a payout. Only one in five of the estimated survivors have been compensated. Why?

A report published in September 2026 by the Public Accounts Committee stated that, during its investigation into government compensation schemes, it received written evidence from Hackney Council that the council was running drop-in sessions and outreach with potential Windrush compensation scheme claimants because there was no effective national campaign.

Windrush survivors have called for a public inquiry for some time. Their calls for truth, accountability and repair should no longer be dismissed or deferred. They have suffered huge injustices and the loss of income, their homes, pensions and medical care. Some have died as a result of ongoing stress and trauma. Remember that trauma is passed down through generations, and I have personally observed this in the descendants of the Windrush victims I have had meetings with.

There has been some meaningful engagement, and the scheme has greatly improved as a result. But there is still resistance to substantial change and a failure to make fundamental changes to its culture and the way of working that are both systemic and sustainable.

Wendy Williams made a finding that there was a lack of empathy for individuals and poor understanding of vulnerability and the need for help. Regrettably, there is still a failure on the part of the Home Office to acknowledge that the scheme is complex and retraumatises applicants, and that survivors need more help.

In May 2026, the Equality and Human Rights Commission submitted its independent report and recommendations for improvement as part of the follow-up review by the UN Committee on the Elimination of Racial Discrimination. It noted the following in respect of the Windrush generation: the Government have simplified the Windrush compensation scheme; however, research shows more claimants are receiving less compensation than they are entitled to; the Government should publish independent analysis of compensation schemes’ performance and explain why applicants for the scheme are significantly lower than expected; and, lastly, the Government should increase funding for the Windrush compensation advocacy support fund, so that those eligible to access free legal aid, if they need it, should have it. As I mentioned earlier, the Government’s own Windrush Commissioner has begun a campaign to ask the Home Office to provide legal aid for Windrush victims and survivors.

To conclude, my Amendment 121 asks for an updated review, as suggested by Wendy Williams, to cover these points and to assess progress, undertaken for the Government and on behalf of the department, to acknowledge that serious harm was inflicted on British people and determine how far the Home Office has demonstrated a commitment to learn from its mistakes, which are affecting the wider community who have been indirectly affected by fundamental changes to its culture and the way of working that are both systemic and sustainable.

Finally, the department should accept and implement the National Audit Office’s recommendation that the department should be more proactive in identifying people affected and put right any mistakes detected. This is what Wendy Williams’s review recommended and what the Windrush victims and survivors deserve. So, I truly hope that the Minister will agree to a review and accept my Amendment 121 and Amendment 115. These British citizens who dedicated their lives to this country deserve to receive justice and candour. It is in the public interest to ensure that this immoral injustice never, ever happens again.

Baroness Hamwee (Liberal Democrat)

My Lords, of course I support what my noble friend has said. She has been indefatigable in her advocacy for Windrush victims. My recollection, which may be faulty, is that the recommendations by Wendy Williams the first time around were all accepted by the Government. I differ from my noble friend a little bit: I do not think one can always expect that a reviewer’s recommendations will all be implemented, but when the Government say that they accept them all, one expects that to be followed through. I am delighted that she has taken this opportunity to raise the issue again.

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, I do not propose to add to what my noble friends Lady Brinton, Lady Benjamin and Lady Hamwee have said on the detail of the amendments on compensation and representation, all of which I support for the reasons that they have given. However, I will just say a brief word about Amendment 123.

During the debate on the third group of amendments today, on the amendments in the names of the noble Baroness, Lady Goudie, and the noble Lord, Lord Bach, on representation and legal aid at inquests, I made the point tangentially that similar arrangements should be made for representation and legal aid at inquiries for seriously injured survivors as are made or to be made for the bereaved in connection with inquests. I would suggest that there is simply no difference in principle between the desirability and importance of the parity and equality of arms and timely legal advice, assistance and representation for the bereaved in the procedure leading up to and at inquests and the need for seriously injured survivors—both those who are helping at inquests and those who are involved in inquiries. That is a parallel process, and the need is the same. There may be differences of detail that we can work on between now and Report. It is a serious lacuna in the Bill that inquiries are completely left out of the provision for legal aid, assistance and representation, which need to be provided early and be thorough, professional and properly paid.

Lord Keen of Elie (Conservative)

My Lords, on the amendment in the name of the noble Baroness, Lady Brinton, I would make the observation that the overarching objective of the legislation is to render such a permanent body unnecessary, although I may be whistling in the wind when I say that it will be achieved. Nevertheless, we have reservations about having a single-standing body to try and attempt to discharge the purpose in question, as it would not reflect the individual circumstances of each event or, if I may say so, scandal. Therefore, we express reservations about that.

In Amendment 123, the noble Baroness raises the issue of access to legal aid for seriously injured survivors to enable them to participate in an inquest or inquiry. We have some sympathy for that proposal, although it requires more detail about its practical implementation. That is perhaps a matter that the Minister may wish to address.

On the points raised by the noble Baroness, Lady Benjamin, I appreciate her concern about the issue of the Windrush Lessons Learned Review and its implementation, but I respectfully suggest that the role of the Windrush Commissioner and the implementation of that review are matters that the Government are liable to keep under review going forward. Therefore, I question whether it is appropriate to try to draw this into primary legislation. It seems to me that a responsible Government are always going to want to address the way in which those review recommendations are being implemented. I thank noble Lords.

Baroness Anderson of Stoke-on-Trent (Labour)

My Lords, I thank all noble Lords for their participation in this debate. It has raised some incredibly important issues which I have discussed with Members of your Lordships’ House from this Dispatch Box on numerous occasions.

I hope noble Lords will bear with me as I work my way through each point. I will begin with Amendment 115, tabled by the noble Baroness, Lady Brinton. In certain cases, courts can impose a compensation order on an offender, requiring them to make financial reparations to the victim for any personal injury, loss or damage resulting from breaches of the duty of candour. Although we recognise that breaches of the duty of candour at an inquiry or investigation may have a significant impact on those affected by the incident under investigation, the duty is towards the inquiry or the investigation itself. In that sense, the breach will affect all participants or interested persons. As much as I sympathise with the recommendations and the noble Baroness’s efforts, it would be exceptionally challenging to attempt a link of breach with any particular victim. That requires us to look at this in a slightly different way.

The noble Baroness, Lady Brinton, and I have discussed the detail of IBCA on many occasions across this Dispatch Box. I truly have heard her concerns and those of the NAO about the events that led to its creation, implementation and rollout. Of course, I am always happy to have a meeting with the noble Baroness on this issue; it is something she knows that I care passionately about and would welcome such an opportunity. Having said that, she is very aware, as I am, that the infected blood compensation scheme is one of the examples that has been used to establish a compensation scheme in relation to a specific incident. The Government’s position is that this is best done on a case-by-case basis, taking into account all the factors specific to each case, but the noble Baroness is right to raise the issue of institutional knowledge and making sure that we do not start from scratch all over again. There is a conversation to be had.

I turn to Amendments 123 and 146, also in the name of the noble Baroness, Lady Brinton. We recognise the importance of ensuring that survivors can engage with proceedings and participate effectively in processes where the court has made an independent decision to invite them to play a formal role as an interested person or core participant. However, beginning with inquests, a seriously injured survivor who is also a family member of the deceased may already be eligible for legal aid under the Bill, provided its statutory conditions are met. The role of other survivors at an inquest is different and will depend on the circumstances of the case.

Importantly, the purpose of the inquest is to investigate a death, not to make findings about serious injury or other harm. Although in some cases the coroner may make an independent judicial decision that a survivor is an interested person, others may be more likely to be called as witnesses. We therefore do not consider that everyone who is seriously injured in the same incident should automatically receive non-means-tested legal aid. That could have a much broader effect than intended and create unintended consequences.

Secondly, turning to inquiries, there is already a statutory route through which public funding can be provided for legal representation. Section 40 of the Inquiries Act 2005 allows the chair of a statutory inquiry to make an award for legal representation where the chair considers that appropriate. This power is available in relation to people giving evidence and people with a sufficient interest in the proceedings or outcome of the inquiry. Inquiry chairs have used this mechanism to provide publicly funded legal representation, subject to the conditions set out for the inquiry. Introducing civil legal aid alongside those requirements would create an unnecessary parallel system and could cause confusion about how participants’ legal services should be funded.

Furthermore, these amendments would require the new entitlement to take effect immediately. We are allowing three months for the regulations needed to bring the relevant services into scope and amend the merits criteria. This would result in the Lord Chancellor being under a duty to make legal aid available in these circumstances before the necessary statutory legislation was in place, and provides insufficient lead-in time to make the necessary operational changes.

I turn to Amendment 121 in the name of the noble Baroness, Lady Benjamin. Every one of us owes a huge debt of gratitude to the noble Baroness for her extraordinary work on behalf of the victims of the Windrush scandal, ensuring that even today, and every day, they are not forgotten. That is incredibly powerful and I am very grateful for her work. On the amendment, the legal aid provisions in the Bill are intended to support bereaved families at inquests and represent the largest expansion of civil legal aid in a decade. Similarly to the amendment from the noble Baroness, Lady Brinton, Amendment 121 would amount to a further expansion of legal aid provision and would therefore require careful consideration of the policy rationale, the costs involved and the wider implications for the legal aid framework.

Regarding the wider issues raised by the noble Baroness, Lady Benjamin, the Government remain firmly committed to learning from the Home Office Windrush scandal and delivering lasting change. The Home Office is strengthening its culture, capability and risk management so that the lessons of Windrush are embedded in how the department operates, develops policy and serves communities. I recognise the strength of feeling behind the call of the noble Baroness for a further inquiry. However, some of the issues underpinning that call are currently with the court as part of ongoing judicial review proceedings. As the court has reserved its judgment, it would not be appropriate for me to comment further, but I thought it may be helpful to give an update on where we are.

The Home Office has undertaken a comprehensive assessment of progress against all 30 recommendations. The process was informed by challenge from the independent Windrush Commissioner, and the findings were considered by the Home Office strategic race board, which has provided further external scrutiny. The assessment identified progress across the recommendations and highlighted areas where further work remains ongoing.

Regarding compensation, the purpose of the Windrush compensation scheme is to compensate members of the Windrush generation and their families who suffered because they could not demonstrate their lawful status in the UK. The Home Office has recently received a proposal from the Windrush Commissioner regarding funded legal support for those applying to that scheme. That proposal is being considered carefully, and the department will respond in due course.

I hope that I have reassured the noble Baroness that both the question of legal support and the wider lessons of Windrush continue to receive careful consideration across government, as they should. However, I should be happy to meet her alongside relevant Home Office Ministers to discuss this in more detail. I therefore ask her not to press her amendments.

Baroness Brinton (Liberal Democrat)

My Lords, I am very grateful to all the speakers in this group, and I start by particularly thanking my noble friend Lady Benjamin, because she has highlighted, not just with Windrush, many of the key points that fail. One issue, if I can say so to the Minister, that I would like to bring to our meeting—I do not know whether my noble friend would like to join it—is what happens at the end of the first year after some but not all recommendations have been accepted. They seem to go into a mush somewhere and never reappear. My noble friend is right that trauma is passed down the generations, and we are certainly seeing that with a number of the tragedies and disasters that we have been talking about.

Wendy Williams asked for the update review on legal aid. That is a common theme with other compensation schemes. My key message in the amendment and the points I was making earlier is that there are still issues, all of which will cost us more because we will have to redo reviews, inquiries and compensation schemes. That is why investing early and ensuring that the right people get legal aid at the earliest stage might help. I hope that the wider debate that is happening on legal aid will look at that too.

When I read the NAO report, I could see that the Government had taken on board some of the lessons learned. Can the Minister point me at a report that might summarise that more clearly?

Baroness Anderson of Stoke-on-Trent (Labour)

I will write to the noble Baroness.

Baroness Brinton (Liberal Democrat)

I would be very grateful for that.

Obviously, we are not going to get further tonight, but I am very clear that I want to bring something back on Report following discussions with the Minister. This issue will not go away. First and foremost, we have to try to support and protect the victims of these dreadful tragedies for which the state has responsibility, but, secondly, we have to start to reduce the amount of compensation that Governments are paying out because compensation schemes have gone wrong. I beg leave to withdraw my amendment.

Amendment 115 withdrawn.

Amendment 116 had been withdrawn from the Marshalled List.

Amendments 117 to 125B not moved.

Amendment 125C

Lord Keen of Elie (Conservative)

My Lords, Amendment 125C is in the name of my noble friend Lord Wolfson. This is a short point. We are concerned that nothing in this Bill should affect parliamentary privilege. That privilege is enshrined in the Bill of Rights and the Claim of Right Act 1689. It is the foundation of parliamentary freedom of speech to be found in Article IX. However, Article IX protects not only Members of both Houses but the integrity of the parliamentary process. This Bill, while it does not explicitly repeal Article IX, nor attempt in any way to amend it, could be construed as allowing for some form of criminalisation regarding parliamentary process, which would be grossly unconstitutional.

A recent report from Policy Exchange gave examples of how the expansion of Clause 12 might facilitate concerning situations where political motivations lead to criminal proceedings for standard parliamentary procedure. It is to ensure that there is no scope for such developments that I move this amendment. There is precedent for such an amendment; such a provision already exists in Section 1 of the Parliamentary Standards Act 2009. Where there is such an issue of prominent and unparalleled constitutional importance, we should put beyond doubt the maintenance of parliamentary privilege. It is in these circumstances that I invite the Minister to confirm that this amendment is not controversial in what it seeks to do. It would make it explicit in the Bill that which all of us would accept as appropriate and necessary in constitutional terms. I beg to move.

Lord Alton of Liverpool (Crossbench)

My Lords, I agree with what the noble and learned Lord has said to the Committee this evening. It is important to clear this up because there was some controversy around this at earlier stages. This clarity would go some way to allaying those concerns. The tone and content of what the noble and learned Lord said should commend itself. I hope that the Committee therefore will agree to the arguments that have been put to it.

Baroness Anderson of Stoke-on-Trent (Labour)

My Lords, this is an awfully short group. I hope that I can reassure your Lordships. The noble Lord, Lord Alton, is absolutely right that a great deal has been said in this space and I would like to reassure Members on this point.

The thrust of this amendment from the noble and learned Lord, Lord Keen of Elie, is to safeguard the protection afforded by Article IX of the Bill of Rights, which is an important aspect of parliamentary privilege. While the Government agree that this fundamental provision should be upheld, provision in this Bill is not necessary to do so. As noble Lords will be aware, parliamentary privilege gives parliamentarians certain rights and immunities to ensure that they can operate freely and independently in your Lordships’ House and the other place. As a report from the Joint Committee on Parliamentary Privilege said in 1999:

“In order to carry out these public duties without fear or favour, Parliament and its members and officers need certain rights and immunities. Parliament needs the right to regulate its own affairs, free from intervention by the government or the courts. Members need to be able to speak freely, uninhibited by possible defamation claims”.

The Government firmly believe in maintaining the current position and this is what the Bill is intended to do. We are also confident that the courts would not construe the two misconduct in public office offences or the misleading the public offence in this Bill as sitting aside from the Article IX protections against proceedings in Parliament, including what Members say or do in Parliament. The Bill would need to make express provisions to set aside this constitutional principle, which it does not. I hope that this reassures the noble and learned Lord and that he will withdraw his amendment.

Lord Keen of Elie (Conservative)

My Lords, I will at this time withdraw the amendment.

Amendment 125C withdrawn.

Amendment 125D

Baroness Falkner of Margravine (Crossbench)

My Lords, it is good to be coming to the bookend after several very interesting and thought-provoking days in Committee on this Bill. Before I explain what my amendment is about, I declare an interest as a distinguished fellow at the Policy Exchange think tank, which has written a report about the Bill, although I was not involved in the writing of it.

I also declare, in case Members who have spoken in Committee feel uncomfortable about my lack of declaration in this regard, that I have in the past been chair of the Equality and Human Rights Commission and a member of the Bank of England’s Enforcement Decision Making Committee. Both of those were public roles which would have been covered by the purview of this Bill. In that sense, I was subject to the plethora of codes covering those public bodies, not least the Nolan principles—which we have discussed at length and which I still hold in very high regard and certainly would have adhered to—the Cabinet Office’s several principles that apply to non-executive board members and so on. That is my experience of public office.

I do not intend to detain the Committee on my amendment. I can see how few Members are here and do not wish to keep them from their belated dinners, but I will make a few significant points. I aim to be helpful to the Government in this regard. Over three days in Committee, we have seen some 150 proposed amendments. We have had proposals for several new or beefed-up institutions—the office for ethics and integrity, the Ethics and Integrity Commission, the office of the whistleblower, and the public authority compensation authority. We discussed a request for a Windrush independent review a few moments ago. On Monday, we talked about developing a single national code. We have talked of subcontractors being subject to the Bill as third parties. We have also seen attempts to insert higher education institutions into the scope of the Bill, which came from left field. I thought that the Bill had been rather carefully drafted to include further education rather than higher education authorities. I support the Bill in that regard.

We do not know whether these amendments will succeed on Report or how many of them will be established or adopted. However, the overall effect of even half the things that I have mentioned being adopted would be that the Government would need to establish them, write guidance regulations and, where necessary, hold public consultations on them. I am sure that the courts would need to be consulted as well, because of the criminal sanctions in the Bill. I do not believe that it would be possible even for a Government who move with immense alacrity and determination to meet all the obligations in those amendments to report in six months, 12 months, 18 months, in some cases, or immediately upon the Bill becoming an Act, or to set about fulfilling the obligations of the Act immediately.

My amendment seeks to buy the Government some time, as well as giving the courts time to see how much litigation comes forward because, for all the reviews that we are seeking, the essential thrust of our assessment as to whether the Bill is a success will be whether the sanctions of the duty of candour are delivered through the system.

I do not believe that we will get a fair and accurate assessment of this Bill and its operability in the ways that the whole House wishes it to operate within six months, a year or even two years. I therefore think that the Secretary of State should, after three years, be able to provide us with a reasonable assessment of whether the Bill has fulfilled its promise. But, of course, I do not want to give the Secretary of State an opt-out—nobody in this Committee would—that they can take as long as they like after three years. I have therefore worded my amendment:

“within no more than four years and no less than three years of the day on which this Act is passed, lay before Parliament a review of the impact and effectiveness of the measures contained in this Act”.

I am aware that other amendments have proposed that the Secretary of State lay an annual report, and I think my arguments would apply to that as well. I have no particular views on laying an annual report, but I do not think that, until we see how the Bill beds down, we will be in a position to do proper post-legislative evaluations of its implications. I beg to move.

Lord Marks of Henley-on-Thames (Liberal Democrat)

My Lords, I speak only to Amendments 145 and 153, which are the amendments in my name, to which my noble friends Lady Ludford and Lady Brinton have added their names, about urgency. We have waited for this Bill long enough. The Hillsborough Law Now campaign, which has campaigned for so long and so effectively for this legislation, started work after the end of the second inquest in April 2016. That, we all know, was 27 years after the 1989 tragedy at Hillsborough. We can at least do everything we can now to end the delay. We owe that much to the bereaved and the victims of all the tragedies that have been mentioned in these proceedings on the Bill, and I believe we owe that much to the public as well.

Our Amendment 153 would bring the whole Bill into force on the day the Bill passes into law, with the exception of those elements which require codes or guidance to be drawn up—that is, Clauses 10, 11 and 20, including Schedule 6, which should all come into force six months later. That is a fast timetable, but it allows some time for the codes to be drafted and promulgated and the guidance to be prepared and published. The point is to inject urgency and an end date into the legislation coming into force.

Amendment 145 in my name and that of my noble friend Lady Ludford would have the same effect in respect of Parts 4 and 5 of Schedule 6, which we have looked at today. They are the detailed provisions covering the provision of legal aid for inquests in England and inquiries into fatal accidents and sudden deaths in Scotland, so they are also covered by Amendment 153. If our amendments favouring seriously injured survivors at inquests and inquiries were acceptable, even as modified as suggested by the noble Baroness, that could be allowed for. However, I do not accept that the present arrangements are adequate, as she suggested they are. We say that there should be a far clearer obligation to provide for legal assistance.

That said, there is no justification for delaying the implementation of this Bill, with the exception of the provisions I mentioned, and our amendments would bring the bulk of the legislation into force on the date of the Bill’s passing into law.

Lord Keen of Elie (Conservative)

My Lords, Amendment 147A, in my name, seeks to require an impact assessment of the risk that the offence of misleading the public, as set out in Clause 12, could potentially be weaponised as a political tool in essentially a tit for tat manner. I acknowledge that the thresholds for harm and potential harm are there as far as Clause 12 is concerned, but we remain concerned that that is not sufficient. I invite the Minister to indicate what assessment has been made of the risk of politicisation of the provision in Clause 12 and what steps will be taken to ensure that the offence is not misused.

The amendment in the name of the noble Baroness, Lady Falkner of Margravine, seeks a review after at least three years but not more than four years. I maintain, as I did when we debated my amendment on a similar point on the first day of Committee, that a review is important to ascertain the extent to which the Act is fulfilling its intended purpose. I would therefore be happy to accept the amendment in the name of the noble Baroness and the timeframe that she explained so clearly to the Committee. It seems to us to be appropriate in the context of the implementation of this legislation. I hope that, going forward, the House as a whole will be able to develop an acceptable amendment that we can support on Report.

Referring briefly to the amendments in the name of the noble Lord, Lord Marks of Henley-on-Thames, I have reservations about the timing that he proposes for the commencement of the legislation. I look forward to hearing the views of the Minister about the ability to, for example, develop and publish guidance within the sort of timeframe that is being proposed.

Lord Lemos (Labour)

My Lords, I will begin with Amendment 125D, tabled by the noble Baroness, Lady Falkner of Margravine. We have already discussed in this Committee the importance of post-legislative scrutiny, so, in the interests of time, if she will forgive me, I will not repeat those points other than to note that the Government have made it clear that they will think carefully about the need for post-legislative scrutiny. I have listened carefully to the points made today regarding whether a longer period might provide a more appropriate timeframe for such a review. That is a helpful contribution to the debate. I am not in a position to commit to a specific time period or method today, but I assure noble Lords that we will actively consider this and work with your Lordships on this ahead of Report.

Turning to the amendments in the name of the noble Lord, Lord Marks, I stress to the Committee that the Government absolutely agree that we should want to implement the measures in the Bill as soon as possible. We have no interest in delay, as I am sure the noble Lord knows. This Bill brings forward significant changes, and it has been a long time coming, including a new duty of candour, an obligation for a clear code of ethical conduct, a major expansion of legal aid, and new guidance to be issued by coroners on the conduct and expectations of public authorities and officials at inquests. While I understand the intention behind the amendments tabled by the noble Lord, Lord Marks, I am not persuaded that bringing the measures into force immediately is necessarily the most effective approach.

All these measures will have implications for a large number of individuals and organisations, and before many of the Bill’s provisions can be properly commenced, important implementation work will need to be undertaken to ensure that those affected clearly understand their new duties and responsibilities. Our intention is that the new offences will be implemented within two months of Royal Assent, as is standard for measures to come into force. I state again that we have no interest in delay, and we will work to bring forward commencement as soon as we can.

The noble Lord’s Amendment 145 would ensure that those provisions to ensure parity of legal aid of inquests came into force on the day the Act was passed. This is the largest expansion of legal aid in a generation, as I think I have said several times now from the Dispatch Box, and I am sure that noble Lords will recognise that significant work is required by the Legal Aid Agency and others to ensure that systems will be ready and legal support will be in place for families to access. Our intention is to bring this into force as soon as possible and we will set out a timeline, but we would want to do that clearly and in an orderly way.

Moreover, as we remain in Committee, the final shape of the Bill is not yet known. Further amendments may be agreed that create additional implementation requirements, including the need for further guidance, codes of practice or operational arrangements—I note the comments of the noble Lady, Baroness Falkner, on that. However, I recognise the importance of ensuring that implementation is not unnecessarily delayed, and I think I have reinforced that point. The Government would be content to set out at the appropriate stage how we intend to approach implementation of the Bill and the steps that would be required before its provisions could be commenced.

Amendment 147A would mean that the offence of misleading the public did not come into force until the Government had laid before Parliament an assessment of the impact of the offence on free and frank public debate where vexatious complaints were made to the police. I acknowledge that the noble and learned Lord, Lord Keen of Elie, has set out his concerns repeatedly, both on this point and on the wider point about the potential costs of this measure to public authorities. I reassure him that the Government have been concerned to avoid the misleading the public offence being used vexatiously or for politically motivated reasons; we do not want the sort of tit-for-tat political arguments that the noble and learned Lord referred to. The tests for the offence, as he noted, have been crafted accordingly. For example, the behaviour must have caused harm or the potential for harm, and it must have departed significantly from what would have been expected of that person in carrying out their functions. However, we will of course keep the impact of the offence under close review from all the points of view that the noble and learned Lord has suggested.

Before I close, I thank everyone for their participation in these sombre and serious Committee debates. There is much more work to be done, and I look forward to working with your Lordships on that. With those reassurances, I therefore respectfully ask the noble Baroness to withdraw her amendment.

Baroness Falkner of Margravine (Crossbench)

My Lords, I beg leave to withdraw the amendment.

Amendment 125D withdrawn.

Schedule 6: Conduct of public authorities at inquiries and inquests

Amendments 126 to 135

Amendments 136A to 137

Amendments 138 and 139

Amendment 141

Amendments 148 to 152