Justice Committee
Oral evidence: Victims and Prisoners Bill, HC 1340
Tuesday 16 May 2023
Ordered by the House of Commons to be published on 16 May 2023.
Members present: Sir Robert Neill (Chair); Tahir Ali; Janet Daby; Maria Eagle; Dr Kieran Mullan; Edward Timpson.
Questions 86 - 157
Witnesses
I: The Right Reverend James Jones KBE, Chair, Hillsborough Independent Panel (2009-12).
II: Paul Greaney KC, Barrister, New Park Court; Jenni Hicks, Hillsborough justice campaigner; and The Rt Hon. the Lord Wills, Minister of State for Justice (2007‑10) via video link.
Witness: The Right Reverend James Jones.
Chair: Welcome to this session of the Justice Committee. We are looking at the proposal in part 2 of the Victims and Prisoners Bill to establish an independent public advocate.
Let’s deal with our declarations of interest before we deal with our panels of witnesses. I am a non-practising barrister and former consultant to a law firm.
Maria Eagle: I am a non-practising solicitor. I should make it clear that I have known the Reverend James Jones for many years. He was my constituent for many years. Also, our mutual work on Hillsborough has brought us into touch over many years.
Edward Timpson: I am a former Solicitor General with a current practising certificate as a barrister-at-law. I was the chair of CAFCASS and the chair of the National Child Safeguarding Practitioner Review Panel. My brother is the chair of the Prison Reform Trust.
Q86 Chair: We will deal with declarations for the second panel when we get to it. Our first witness is the Right Reverend Bishop James Jones, the chair of the Hillsborough Independent Panel. Bishop, thank you very much for coming once again to give evidence to us. It is good to see you again.
Rt Rev. James Jones: Thank you very much, Sir Bob.
Q87 Chair: If you want to do this, we have agreed that it might be useful for you to say a few words to introduce the situation as you currently see it.
Rt Rev. James Jones: I am very grateful for that opportunity.
Chair: By all means.
Rt Rev. James Jones: As you say, I chaired the Hillsborough Independent Panel, the Independent Panel on Forestry, the Gosport Independent Panel and the independent commission on long-term sentencing. Following the publication of the Hillsborough Independent Panel, I also published the report on learning from the experiences of the Hillsborough families called “The patronising disposition of unaccountable power”. Although it was not one of my 25 points of learning, I commended the proposal to create an independent public advocate.
I, therefore, welcome the Government’s proposal, recently announced by the previous Justice Secretary and outlined in the current Bill before Parliament. I welcome the intention to consult widely, not least because more work does need to be done on clarifying the role.
What I offer the Justice Select Committee today is simply my experience as I worked on the report “The patronising disposition of unaccountable power”, when I found myself contacted by those affected by and involved in public tragedies, namely the Gosport War Memorial Hospital, the Grenfell Tower fire, the infected blood community, the Manchester Arena bombing, the Covid Inquiry and also by the range of emergency services.
Allow me, Sir Bob, to comment very briefly on each of these by way of demonstrating the need to establish an independent public advocate.
Gosport Hospital: this is now the focus of the largest criminal investigation in the country. I cannot comment on the substance of it. However, I can tell you that when the Government first approached me about the possibility of investigating the non-recent deaths, I suggested that I should meet first with the families to hear their concerns and to share with them the process of an independent panel so as to assist them and the Government in deciding whether this would be an appropriate way of addressing the alleged tragedy of the early deaths of their loved ones.
Grenfell Tower: shortly after the publication of “The patronising disposition of unaccountable Power”, I was approached by Grenfell United, who asked to meet with me, saying that they were experiencing issues similar to the Hillsborough families. I was subsequently approached separately by the chair and the council of the Royal Borough of Kensington and Chelsea, by the Inquiry Secretariat, by The Grenfell Next of Kin, by the London Fire Brigade, by the Government and by the Grenfell Tower Memorial Commission. I made interventions on behalf of the bereaved. The scope of my engagement, none of which I solicited, convinces me that there is a need for an independent public advocate.
The Infected Blood Inquiry: I was approached by Dame Diana Johnson on behalf of the different groups affected by the infected blood scandal so as to meet with them. One of their major concerns was that the sponsoring body of the proposed inquiry was to be the Department of Health that was heavily implicated in the allegations. I wrote to the Prime Minister on behalf of the families asking that the Department “should have no role in the inquiry except as either witnesses or defendants” and that “the statutory inquiry be set up under the Inquiries Act 2005”. On 3 November 2017, the Prime Minister wrote back to me, agreeing to both those points. I am happy to share the correspondence, which I have with me, with you, Sir Bob.
Chair: Thank you very much.
Rt Rev. James Jones: The Manchester Arena Bombing: I was approached by Lord Kerslake, who headed up the interim inquiry into the Manchester Arena bombing, so that I could share with him my experience of chairing the Hillsborough Independent Panel. I was able to labour the point that it was imperative to listen carefully to the bereaved and to the survivors in order to draw up the terms of reference.
The Covid Inquiry: I have met with the secretariat to the covid pandemic inquiry to share lessons learned from the Gosport Independent Panel and other panels. Among the points made were the relative merits of inquiries and panels, the value of regional meetings with those affected, the importance of the terms of reference, and, most importantly, the therapeutic value of inquiries and panels.
The Emergency Services: I and my colleagues, especially Ken Sutton who headed up the Hillsborough Independent Panel Secretariat, and with whom I continue to work, have over the past 10 years been consulted about how the emergency services should respond after a public tragedy. These include the National Police Chiefs’ Council, the chief constables of England and Wales, the chief fire officers of England and Wales, and the College of Policing.
Chair, all of this convinces me that there is definitely a role for an independent public advocate.
In conclusion, I would like to make two further brief points with reference to Hillsborough. In my second report, I published the charter for those bereaved through public tragedy. In essence, it commits public authorities to put the interest of the bereaved and the survivors over and above their natural reaction to protect their own reputation. Also, the report calls for proper legal representation for those who find themselves at inquests that are contested by legally represented, state agencies paid for by the public purse. To do otherwise means that the victims of tragedies are further traumatised by this affront to natural justice. I see one of the roles of the IPA as ensuring that all agencies implicated in public tragedies adhere to that charter.
If only there had been a standing independent public advocate in existence at the time of the Hillsborough disaster, they could have intervened immediately on behalf of the traumatised families and impeded the emergence of a false narrative that took some 30 years and hundreds of millions of pounds to correct. I believe that what is in the Bill needs to be informed by those whose lives have been traumatised by public tragedy and I hope that the Government will listen carefully to their experiences. Thank you very much, Sir Bob.
Q88 Chair: Thank you very much, Bishop. That is extremely helpful. That sets out from your perspective very clearly why you think there is a need for the independent public advocate. I think that, to a degree, is accepted, but it is, perhaps, some of the detail we would now like to get into.
You mentioned that you believe that one of the roles of the IPA should be to ensure adherence by all the relevant agencies to the charter to which you referred. Can you spell out your view as to the other core functions that the independent public advocate should have?
Rt Rev. James Jones: It is important to recognise that when there is a public tragedy ordinary citizens are traumatised. They are in shock and they are grieving. They are not well placed to access all the different bodies and authorities that they are entitled in law to access. They need help immediately at that point to know just how they should proceed.
Q89 Chair: Does the Government’s proposal—the model that the Government have put forward—meet those criteria so far?
Rt Rev. James Jones: There is a problem with what is proposed in that it is left to the Secretary of State to determine whether or not an IPA should be set up in relation to a tragedy. That takes time. What the families, the bereaved, the survivors, need is an immediate response to help them to signpost the way forward. Therefore, I think that there should be a standing IPA so that the IPA is enabled to react swiftly to the emerging situation, which evolves day by day. To wait for a Secretary of State to be briefed, to be advised and then to decide—that space—is fraught with dangers and, therefore, to have a standing IPA is more preferable.
Q90 Chair: Do you envisage that as one individual, perhaps, holding the office of independent public advocate, or a small office, panel or team on a standing basis?
Rt Rev. James Jones: As I understand it, what is proposed is a potential panel of IPAs. There should be a lead IPA and there should be IPAs with a breadth of experience, some in bereavements, some with medical experience, others with legal experience. I draw now on my own experience of chairing independent panels, the great merit of which is to have people with that different expertise who are available to apply their expertise to the situation that is under investigation.
Q91 Chair: Would you envisage just one advocate or one IPA for any individual circumstance, or a number, perhaps?
Rt Rev. James Jones: It would depend on the nature of the disaster. Certainly in the panels I have chaired there has been a breadth of expertise which would suggest at least half a dozen, and I have named some of those categories, but it would be up to the lead IPA to determine, in the light of that particular disaster, just which expertise was required.
Q92 Chair: If it is a standing IPA, rather than a Secretary of State having to appoint one, in effect, how would the reference be made to the standing IPA? Would you expect the Secretary of State to make the reference or would it be by some other means?
Rt Rev. James Jones: No. It would be up to the independent public advocate to make the decision about their engagement.
Q93 Chair: Whether or not they took it on, in effect.
Rt Rev. James Jones: Indeed.
Q94 Chair: I see. Would you expect them to carry out any consultation before they took it on? How do you envisage it might happen in practice? There has been this awful disaster. There are families who are traumatised by it. Is it, perhaps, likely that they would, therefore, approach the standing IPA or would it be by some other means?
Rt Rev. James Jones: The IPA would have the authority to take the initiative to approach any relevant agency, be it the local chief constable, for example, or the chair of the hospital trust. Whatever the disaster was, the IPA should be given the authority to take the initiative rather than the Secretary of State.
Chair: I understand. Thank you very much.
Q95 Maria Eagle: That is very interesting. You have extensive experience with independent panels. Do you envisage the IPA that you are talking about now as being there to establish an independent panel but at a much earlier stage than was done with Hillsborough?
Rt Rev. James Jones: The IPA would be able to guide the victims, the families, the survivors, in what they should seek, which would be relevant to their particular situation. It is difficult to recommend something in abstract. If we take Hillsborough, as an example, the IPA might indeed have taken the initiative to set up the Hillsborough Independent Panel.
Q96 Maria Eagle: Is there a role to give the families, when they collectively get together, which the Hillsborough families did at a quite early stage? They formed a democratic organisation among themselves and they made decisions collectively. Where families can and often do get together in the aftermath of disasters, should they have some agency in deciding whether and how the IPA would assist them?
Rt Rev. James Jones: You know the families and their history better than I do. You were there right at the outset. From my understanding, at that stage the families felt very unsupported. If they had been able to meet with the lead IPA, I think that would have led to a very different direction as the outcome of the disaster and its aftermath.
Q97 Maria Eagle: Is one of the important outcomes of legislating to give families, who, through no fault of their own, are caught up in these terrible tragedies and are suddenly in the public eye in a way they never sought to be at the worst time of their lives, some support and agency in making sure that things are not just done to them? As set out in the Bill at present, do you believe that the current provisions will achieve that?
Rt Rev. James Jones: I am inclined to support that view. That is why I think the role of the IPA needs further clarification. I approach the work that I have done with a pastoral attitude. Certainly what I have experienced with people traumatised by public tragedy is that they are completely at sea. They do not know where to turn. The experience of many of them is that, when they turned to public authorities, they found themselves patronised—hence, the title of the report “The patronising disposition of unaccountable power”.
If the IPA is able to engage immediately with the families, in a way that demonstrates empathy as well as signposting how they move forward, that needs to be clarified in the definition of the role in the Bill.
Maria Eagle: Thank you.
Q98 Dr Mullan: Thank you, Reverend James. The Bill and what we have talked about so far refers to public disasters. We envision instances like Hillsborough or the Grenfell Tower. There is a single point in time where something happens and a lot of people are harmed as a result. Obviously, you have had experience, as you mentioned, of the blood scandal and Gosport Memorial, where those were not single point in time events and a picture evolved over quite an extended period of time. Are you envisioning that that same role applies to the latter form of public disaster, or are you envisioning it for the point in time? If you are envisioning it for the latter form, how do you envision that decision process being made, because that is obviously a lot more complicated than an event that someone can easily identify is something that needs a public advocate?
Rt Rev. James Jones: I have no clear answer to your question, except I recognise that in the Bill “major incident” does need clarification. My own experience is that a major incident is not necessarily mass fatalities. It could be the fatality of one person that has huge public consequence. I do not envy the people who have to do the drafting, but I do think there needs to be greater clarification on what a major incident is.
Q99 Dr Mullan: That drafting is the criteria through which the advocate would decide whether or not it would be appropriate for them to act.
Rt Rev. James Jones: Indeed.
Q100 Edward Timpson: To build on that answer, in your 2017 report, you did caution against adopting too narrow a definition of “public disaster”. Based on what you have just said, does that need to be followed through into this legislation around a major incident to ensure that it does not prevent there being an involvement of an IPA in a situation, which, if it is defined too narrowly, could take it out of consideration?
Rt Rev. James Jones: Yes, it should not be defined too narrowly. One case I have also been aware of, where people have come to me, as they have to MPs and Members of the House of Lords, is Zane Gbangbola, who died, allegedly, through poisoning. That case could well merit being a major incident because it has consequences for the whole community.
As I said, I do not envy the people who have to do the drafting, but we should not put too narrow a definition on “major incident”.
Q101 Edward Timpson: That is very helpful, thank you. Could I also take you back to some of the questions in relation to the role of the Secretary of State and whether they should appoint someone to act as the IPA on the back of some major incident or whether there should already be someone in situ as a standing IPA, who would, essentially, make that decision themselves? In those circumstances, in the set-up that you have proposed, if the IPA decides not to hold any further inquiry into that major incident, should there still be a role for the Secretary of State to say, “I take the view that there should be and I am going to appoint you or one of your panel to carry that out”?
Rt Rev. James Jones: I had not thought of that possibility, but through my experience of the infected blood community I am concerned about the role of the Secretary of State. Which Department of State would it be? You will need to talk to those most affected about this. The level of distrust is very high. In the infected blood communities, there was distrust about the Department of Health and Social Care. So I would be very cautious about giving the ultimate authority to the Secretary of State. I may be wrong on that, but listening to people who have been victims of public tragedies, you would find they too would be suspicious.
Q102 Edward Timpson: Is it a case of them being both independent and being seen to be independent that is at the heart of your thinking around who should trigger any inquiry?
Rt Rev. James Jones: Again, my experience that I outlined at the beginning makes me say that those who are affected by public tragedies do want, more than anything, an independent review of what has happened. It is a sad aspect of our society today that there is such a low level of trust in public authorities, but that is where we are. To protect ourselves—our society—we, therefore, do need to have these truly independent bodies.
Edward Timpson: Thank you.
Q103 Janet Daby: Thank you, Chair. Good afternoon, Bishop. I am going to ask you a similar question along the same lines. The Bill would enable the Secretary of State to create a panel of advocates following a major incident. That has come out of some Government consultation. You mentioned earlier that the advocates would need to have certain specialisms in certain areas. If I am hearing correctly, you are also saying that they should not sit under the Secretary of State’s Department; they should be standing alone.
For clarification, should there be a lead IPA member? But then who would appoint the actual IPAs? Would it come out of the stand-alone IPAs who would make those decisions as to which IPA would take a case on board, or should it be dealt with as a panel of IPAs managing a major incident?
Rt Rev. James Jones: The Government have a responsibility to establish the IPA. As I said earlier, that should already be in existence. It should be established and not wait until there is a public tragedy. If whoever is proposed by the Government can come before a Select Committee so that their candidacy can be tested and their ability and skills can be checked, there is a way forward of being able to appoint a truly independent public advocate.
It is up to the lead IPA then to decide, in the light of each incident, what appropriate skills are needed in order to review what has happened. Yes, I see the lead independent public advocate as crucial for being both independent but also being appointed by the Government.
Q104 Janet Daby: If there was a major tragedy on quite a large scale and there was a lead IPA, if there were a panel of IPAs working together on that major tragedy, is that something you could see happening or support? That is what the Bill is indicating.
Rt Rev. James Jones: I could see that. If I draw on my experience of the setting up of independent panels, rather than the independent public advocate, which are two separate things, listening to the families’ concerns, the bereaved, the survivors, gives you an idea of what expertise is needed to be able to review that tragic situation. If there was a medical dimension or a legal dimension, you would make sure that there were people within the IPA panels who would be able to be recruited to deal with that particular tragedy.
Q105 Janet Daby: There was some criticism of there being a panel and there is a risk of inconsistency from multiple advocates. It may be that the positives of having a panel outweigh those drawbacks or that risk. Do you have a view on that?
Rt Rev. James Jones: I do not quite understand that question.
Q106 Janet Daby: If you have a panel of advocates working with the bereaved, there could be inconsistency of information among the advocates themselves. That is what has come out of the Government’s consultation. Those inconsistencies may not be as significant as the positives that come out of having a panel rather than just one advocate working on a major tragedy.
Rt Rev. James Jones: My experience of working with people from different disciplines is that it enhances the work of the panel. You have people bringing different perspectives from their particular professional expertise, which helps you to get a fuller picture of what it is that has happened, what has gone wrong and what needs to change in the future.
Janet Daby: I agree with you, thank you.
Q107 Tahir Ali: I have a straightforward, simple question. What role would an IPA play in an inquest or a public inquiry?
Rt Rev. James Jones: One of the good developments since the second Hillsborough inquest is that the coroner has invited the families to offer their pen portraits of their loved ones. That has done a huge amount to humanise the process, to enable the families to feel that they are not just talking about numbers but they are talking about truly loved ones. I have no particular expertise in this area, but my feeling, in answer to your question, is that the IPA could also make such a statement at an inquest as to what the IPA has observed as he or she has engaged with the families after the tragedy.
Q108 Tahir Ali: Based on your experience, what do you think the IPA should report on?
Rt Rev. James Jones: What the IPA has observed and heard from everybody involved in the tragedy: obviously, those who are bereaved, those who have suffered and those who have survived, but also those people who responded to the tragedy, so that they bring a full picture to the inquest.
Tahir Ali: Thank you.
Q109 Janet Daby: Would you agree that IPAs should have authorisation of data controller powers?
Rt Rev. James Jones: I know this is a contentious issue, when I heard it was in the Bill. The positive of this recommendation concerns the feelings of the Hillsborough families and, indeed, the Gosport War Memorial Hospital families, about the removal or destruction of vital documents. It seems to me that there could be a role for the IPA in ensuring that no documents are destroyed at the moment when an incident has taken place. I am thinking off the top of my head now. I am not a lawyer but I am engaged pastorally with people who have a distrust of people in authority. If the IPA has authority to access the documents, it is the responsibility of the IPA to ensure that those documents go either to the inquiry, under the Inquiries Act 2005, or to the independent panel or inquest, or to whatever legal body takes forward the investigation into the tragedy. That would reassure victims that essential information was neither withheld nor destroyed, and that there should be transparency.
It goes back to the charter for families bereaved through public tragedy that, although those public bodies will naturally want to protect their reputation, it is in the interest of society as well as of the people who have suffered that all the documents be brought to the table. There can then be a proper, thorough and transparent review of what has gone on, so that in the end lessons can really be learned and, even more importantly, applied by the various bodies responsible, so that the same things do not happen again.
Janet Daby: Thank you.
Q110 Chair: So it is a neutral but trusted body holding the data, but not an investigator.
Rt Rev. James Jones: Indeed.
Chair: Thank you. Ms Eagle.
Q111 Maria Eagle: One of the things that came out of the Hillsborough disaster was that the South Yorkshire police set about changing documents and statements. It took until the Stuart-Smith scrutiny, some nine years later, for that to be acknowledged, although Stuart-Smith said it had not made a difference to the findings of the Taylor interim report. It was then a very important part of your scrutiny and report in the Hillsborough Independent Panel, and it caused a great deal of shock across the nation when the full extent of it came out. Do you think that having the powers of a data controller, as you described in answering Janet Daby, and being seen and known to be safe as a holder of data, could be an important statutory role for an IPA?
Rt Rev. James Jones: I think it depends on the purpose for holding those documents. I do not see the IPA as doing the investigation, but I see an important role for the IPA in protecting the documents so that a subsequent investigation can indeed have them all available so that they are not withheld or destroyed.
Q112 Maria Eagle: Do you take the view that statutory powers, set with an IPA independent of the Government, as you have described, could be a deterrent to those organisations that might be tempted to set about organising cover-ups and hiding things, because of the transparency that the powers you have described could bring at a much earlier stage than happened with Hillsborough—because it was so many years later? Might that in itself be a massive disincentive to any temptation by state authorities to engage in those kinds of practices in the first place, tempted though they might be to do so?
Rt Rev. James Jones: I find myself sympathetic with that view. I am particularly interested in recovering trust in public bodies, but we need the checks and balances. As I have said, I do not see the IPA being a data controller in order to investigate; it is to make sure that the documents fall into the right hands eventually.
Q113 Maria Eagle: Finally, do you believe that an independent public advocate would be able to access, perhaps from some reluctant public authorities or state bodies, the information they would need to ensure that the bereaved families and survivors are kept properly and fully informed, and can therefore trust that the processes led by the IPA would not just become another part of the state that was trying not to be helpful? That is often the feeling of bereaved families at present, when they encounter state authorities and bodies.
Rt Rev. James Jones: I think that is why the IPA does need to be independent.
Q114 Chair: Can you perhaps help me, Bishop? What response, if any, have you had from the Government to your 2017 report?
Rt Rev. James Jones: Sir Bob, we are still waiting for the Government to respond. In their defence, they felt they could not respond to the 25 points of learning while there were cases before the courts.
Chair: I see.
Rt Rev. James Jones: There are no longer any cases before the courts, and the families and survivors are increasingly impatient as to why the Government have not yet responded. I am hoping to meet with the Home Secretary shortly to hear what the Government’s position is, but there are three particular points of learning out of the 25. One is the charter for those bereaved through public tragedy.
Another is the equality of arms that I have already alluded to. When a family comes to an inquest to find out how and why their loved one died, and arrives legally defenceless but confronted by state agencies with lawyers paid for by the public purse, that is an affront—an offence—to natural justice. The phrase that is often used is “the equality of arms”. There should, indeed, be a level playing field. I think about 20% of inquests are contested, and I think there should be legal provision for bereaved families at contested inquests.
The third point of learning is a duty of candour on the police. Going back to Hillsborough and, indeed, the Gosport War Memorial Hospital, the reluctance of the police to disclose vital documents was very difficult for the families. There should be a duty of candour, and, as I have said, I and my colleagues have been in discussion with the chief constables of England and Wales and the National Police Chiefs’ Council to make this point. A recent report by the NPCC indicated that they too were sympathetic with a duty of candour being laid upon the police.
Q115 Chair: That is very helpful. Thank you very much. That has been most useful, Bishop, on all those points. Is there anything else that my colleagues and I have missed out, that you would like to help us with?
Rt Rev. James Jones: I am very grateful for the opportunity to speak to the Bill in this way, and I look forward to the outcome of the debates in Parliament.
Chair: Thank you very much, Bishop. I am very grateful to you, as ever. Thank you for your time and your evidence today.
We will now rearrange and move to the second panel of witnesses. We will need to get Lord Wills up on the screen.
Witnesses: Paul Greaney, Jenni Hicks and Lord Wills.
Q116 Chair: We will recommence with our second panel. I ask the members of the panel to introduce themselves.
Jenni Hicks: I am Jenni Hicks and I lost both my daughters, Sarah and Victoria, in the Hillsborough disaster.
Paul Greaney: My name is Paul Greaney. I am a barrister and King’s Counsel, and the scope of my practice involves appearing in public inquiries and inquests.
Lord Wills: [Inaudible].
Maria Eagle: We cannot hear you.
Chair: We seem to have lost the sound.
Lord Wills: My apologies. Thank you very much for allowing me to join you virtually. I am Michael Wills. I was the Minister of State in the Ministry of Justice who devised the format for the Hillsborough Independent Panel and, out of my experiences doing that, I put forward my private Member’s Bill, which first introduced the concept of an independent public advocate.
Q117 Chair: Thanks very much. Jenni, can I perhaps start with you? Your personal tragedy was the loss of your daughters at Hillsborough, 30 years ago.
Jenni Hicks: Yes. Shall I give you a brief outline of that?
Q118 Chair: Yes. I would like you to outline what those experiences were that led you to support the establishment of an advocate.
Jenni Hicks: Good afternoon, everybody.
On 15 April 1989, my then husband, Trevor, our daughters, Sarah, who was 19 years old, Vicki, who was 15, and I drove from our home in north London to the Hillsborough football stadium in Sheffield, to watch our team, Liverpool, play Nottingham Forest in the FA cup semi-final. We were all Liverpool season ticket holders and had been allocated four tickets for the semi-final at Hillsborough. Trevor and I drove home from Sheffield that night with an empty back seat in our car, having had to leave Sarah and Vicki in body bags on a dirty gymnasium floor at the Hillsborough football stadium.
After identifying Sarah and Vicki, we were told they were no longer our property. They were now the property of the coroner of South Yorkshire. We were questioned for over an hour or so on our movements of the day, from leaving home that morning. The questioning particularly focused on what we had all had to drink. Had we had alcohol? How much alcohol had we had?
Trevor was asked to make a statement, which was later used at the Taylor inquiry. There was no solicitor present when we were being interviewed. It felt more like an interrogation, to me. We were treated like criminals by the police that night in Sheffield and were not shown an ounce of compassion from them.
What followed is the reason I support the urgent need to appoint an independent public advocate and an advocate’s panel. The lies, corruption and dirty tricks began immediately, informing the press and media, and anyone else who would listen, with the hideous, nauseating lies about the Liverpool fans’ behaviour. I won’t repeat those now disproven lies because that would give them the publicity and credence that South Yorkshire police had intended. It took 26 years for the Liverpool fans to be exonerated. However, the mud from those lies and the corruption still sticks, in certain quarters of society, to this very day.
It took what seemed like a lifetime of banging our heads against brick walls and climbing seemingly insurmountable barriers before, following the 20th anniversary of Hillsborough, thanks to the courage of the then PM, Gordon Brown, and the foresight of Lord Michael Wills, my two unseen heroes in all of this, the process of setting up the Hillsborough Independent Panel began, with the release of previously unseen documentation enabling families finally to find the truth about the causation of their loved ones’ deaths.
A second inquest found that all 96—at the time—of the women, children and men had been unlawfully killed. A 97th victim was added later. If we had had an independent public advocate and public advocates’ team at the time, acting—this is important—with a duty of candour, we would have been able to ascertain the truth decades earlier.
Q119 Chair: Thanks. It was very helpful, sharing that with us. In the attempt to ascertain the truth and to get full disclosure of all the documents, prior to the Hillsborough Independent Panel being set up, what sort of obstacles were put in your way? Can you give us an idea?
Jenni Hicks: It was the lies and the cover-up.
Q120 Chair: What form did that take? Obviously, lies were put about, about what had happened. Were you and the families attempting to get disclosure of documents—for example, witness statements, and other things?
Jenni Hicks: No, because in the very beginning, obviously, you are traumatised. In our case, we had just lost our only children. It happened in April, and the Hillsborough family support group was formed in July of that year. The cover-up was basically that they lied about what had happened. They blamed the fans more or less for killing their own. For a start, the chief superintendent in charge lied about the fans breaking down a gate, gaining access to the ground and basically charging into pens 3 and 4 and causing the crushing; so it was the lies. The basic lies that you are asking me about were about what happened on the day. They lied about the circumstances of the 96 deaths. Sorry, it is now 97 deaths, but at the time it was actually 94 on the day.
Q121 Chair: So, in a nutshell, you didn’t have any mechanism or means of getting hold of the documentation and all the other evidence that the second inquest eventually had. That is what it comes down to.
Jenni Hicks: No, we did not have any means whatsoever. As a group of bereaved families, we did our best to get to the truth of what happened to our loved ones. As I said in my statement, it was an insurmountable wall to climb because, everywhere we went, the doors were closed in our faces. What we really needed was what Gordon Brown and Lord Michael Wills enabled us to do—and that was to get the documentation that we needed. Until that documentation was released we were going round in circles.
Chair: That is fair enough.
Jenni Hicks: So, as far as I am concerned, part of the brief of a public advocate and his team should be to help get that documentation to the people who could look at what really happened that day.
Chair: Thank you, that is very clear. I appreciate that. Ms Eagle.
Q122 Maria Eagle: Can I make it clear before I ask my questions that I am Jenni Hicks’s MP? She has been my constituent for 26 years and I have known her for longer because I had an involvement in civil legal actions before I was elected as an MP. I was also a Minister in the MoJ when Lord Michael Wills did the work that he did in establishing the panel. Because I had a constituency interest I was not involved, but Lord Michael Wills was.
Can I begin by asking Michael Wills to set out what led the then Government to decide that the model of an independent panel was the best way to proceed?
Lord Wills: I think you will recall that this was not a simple and straightforward process within Government, so, if I may, I will go briefly back over it, because it bears on why the creation of an independent public advocate is so important. There was universal sympathy for what the families had been through and were going through, but there was quite a wide range of views about what should be done. Some people felt that there had been two public inquiries and there would not be any point in having another one. I felt very strongly that it was not for that particular Minister to decide that; it was for the families to decide. That goes to what the Bishop just said about the patronising disposition of unaccountable power. We need to put families back in the centre of things. Others were worried about upsetting the police. It is always quite difficult for a Labour Home Secretary to have that sort of relationship—or it used to be, anyway—and they were worried about that. Others just wanted to get a move on.
The problem that I had was trying to explain that data protection regulations meant that not all the relevant documents might be made public. In the end, the device that I came up with was that the panel would be put in the position of data controller, so they could see everything and they would then report on it. In the event, very few documents were redacted and the panel did quite an extraordinary job in doing all that.
I think it is fair to say—and you will recall this—that I pretty well lost the argument within Government, except for one crucial factor, which was the protection and support of the Prime Minister. He understood that and this is why we went through it. But those difficulties—partly as a matter of political self-interest, and probably the institutionalisation of Ministers when they have been in power for a time—are part of the pathology of public disasters. The Bishop described it very well. People in power feel threatened by media interests and public demands for something to be done, and they close up and use their power to try to protect themselves. That is what has to change.
Q123 Maria Eagle: From your experience in establishing what has been the most difficult and one of the most successful independent panels in doing the job that it was given, although it took a few years to do it and had to look through millions of documents to get to its conclusions, what are the vital elements of establishing an independent public advocate that will work to prevent the aftermath of disasters going as terribly wrong as happened with the Hillsborough disaster?
Lord Wills: You put it very well in one of your earlier questions when you pointed out that, if there is the possibility or probability of an independent panel reviewing all the documents that contemporaneously have to be preserved, people will be much less prone to trying to cover things up, because they will know that in the end it will not be able to be concealed. That is the most fundamental point.
There are two points about the independent Public Advocate Bill that you have put forward so indefatigably in the Commons and that I have been putting forward in the Lords. One is that the bereaved families and victims have some sort of effective agency, which this Bill does not really give them. Secondly, there is a guarantee of full transparency, which, again, this Bill does not give.
Q124 Maria Eagle: Thank you. Can I ask Jenni, finally, from the point of view of a bereaved family, feeling patronised and not getting the information and support that you deserve and need, what is it about the public advocate that will give you confidence that it is for you and on behalf of the families?
Jenni Hicks: First of all, it has got to be an independent public advocate. I think “independent” is the clue to it all, really, otherwise, as Bishop Jones said, there is not going to be any trust from those involved in the cover-up. It has got to be independent of all outside sources and prejudices. I think the benefit of an independent advocate, and the important part as well, is that with an independent panel and an independent advocate you must have a duty of candour. They must be independent and there has to be a duty of candour so that they can release any information that would be beneficial in getting to the truth earlier than the Hillsborough families did. As I say, it took 23 years for us to have our truth. It took until 2012. That is totally unacceptable. It is torturous for families. In fact it is cruel and it just mustn’t be allowed to happen again.
So I hope that the role of this independent panel will enable families to have, much sooner, the information that they need right from the start, and that it can be passed on to those who can do something about it.
Chair: I understand that. Thank you. Dr Mullan.
Q125 Dr Mullan: I want to pick up the comments you made, Lord Wills, about the resistance in government. You mentioned some perhaps less welcome things that might block someone from wanting there to be an effective public advocate: politics and dynamics, etc. Can you think of any more rational arguments that were made in government at the time, against this type of approach, as opposed to, say, well-run public inquiries?
Lord Wills: I don’t think the arguments were necessarily irrational. I think they were arguments put forward by people in power, and the interests and wishes of the families were completely marginalised. That is unacceptable. It is not that the arguments were irrational. They were the arguments of the powerful, in various different ways, protecting their power. As the Bishop said, this is one of the reasons why the public are losing faith in our institutions. The terrible ordeal that the Hillsborough families endured, year after year, trying to find out, is completely unacceptable. Sadly, the experience is not unique. What was unique was the extraordinary, heroic endeavours, decade after decade, of these families, and their solidarity in pursuing what they felt they owed their loved ones. So it was not irrational, as I say. They were perfectly rational if you take as the parameters the interests of the powerful; but that is not what we should be doing.
Q126 Dr Mullan: Thank you. I guess in trying to understand what is absolutely a necessary ingredient, as opposed to things that have similar ingredients but are not quite there, I can think of the involvement I had with the public inquiry in relation to the Mid-Staffordshire hospital failings. I think that that public inquiry was widely considered to be fair and reasonable; the families and relatives affected welcomed it and felt it was an authoritative review of what happened. Obviously, we have another example here where the public inquiry did not work. What is it about a public advocate that, while nothing can guarantee it, makes it much more likely that you get the positive version of someone coming along and looking at something, as opposed to a negative outcome, as we had with the Hillsborough inquiries?
Lord Wills: That is a very good point, because not all public inquiries fail. Both Hillsborough inquiries were flawed, but some of them are conducted with admirable impartiality and, as you say, get to a fair and reasonable result—absolutely. But it is not guaranteed. They take a long time; they are extremely expensive; they are adversarial. In the meantime the bereaved and the victims are going through hell. They have to endure often protracted adversarial proceedings with lawyers having a go at each other, year after year. We need to get to a process that is quicker, fair and impartial, and that gets to the truth—gets full transparency. Often that is all that families want. It is quicker, and fairer to the families, and because of full transparency it is a better guarantor of a fair and just outcome than a public inquiry, which may get there but may not.
Q127 Dr Mullan: Do you think, if a public advocate is seeking information and perhaps commenting on the actions of others, that that will not be adversarial?
Lord Wills: No, because it is a fact-finding exercise. The consequences may end up in adversarial processes. There may have to be public inquiries afterwards, or legal proceedings. You cannot remove that from highly sensitive tragedies—you can’t do that—but what you can do is give the families what they always want, in my experience, which is the truth.
Q128 Dr Mullan: Is it as much about a person who enables a process of information as anything else?
Lord Wills: Well, it is. We owe that to these people who have suffered these terrible losses and who, as the Bishop described very movingly, are traumatised and grieving, and don’t know where to turn. They have, largely, been left abandoned by the state and its processes. That is what has got to change.
Q129 Dr Mullan: To both Lord Wills and Jenni, the idea of a standing panel of people perhaps has some of the connotations of the state anyway; it is a group of people who are a part of a body that is there all the time and is not going anywhere. Do you think there is any risk that perhaps people might have that perception of them, as opposed to you having experienced a particular person being appointed as a one-off? There was the ability to generate the impression that it was set up for you, as opposed to a standing body that people might end up distrusting in the same way.
Jenni Hicks: That is my point about them being independent.
Lord Wills: I just want to comment on the question of the panel, because the drafting is a mess. I hope your Committee will pick this up. Originally, there was to be only one in my Bill and the Bill put forward by the right hon. Member for Garston. The panel was suggested to me by officials in about 2018. The whole model of the IPA was based on the independent reviewer of counter-terrorism, a model which has been largely ditched by this Bill. The idea of a panel was that you might have an independent public advocate who happened to be busy. Let’s say it was a barrister in the middle of a long case. He or she might not be available, because by definition these public disasters are ad hoc and come out of nowhere. You should have a panel and one could be selected at any one time. One would be available at any one time. What they have now developed is the idea that you may need these numbers because there may be a large number of victims and so on, but there is no coherence. There may or may not be a lead advocate. The other advocates may take their lead from the lead advocate, but they may not. It could be a recipe for chaos with loads of independent advocates all allocated to different victims and different bereaved all having slightly different views. Far from being as swift and as painless a process as possible, it could be the opposite of that. I think that bit of the Bill, among others, does need another look and redrafting.
Q130 Dr Mullan: Mr Greaney, perhaps you could assist us in a more technical sense on work that you do and the functions you provide to families at inquests. What are the important things that you think are needed for families in this sort of context to ensure that they get a fair hearing and fair understanding of what has happened?
Paul Greaney: I should probably say at the outset that, while I do act on behalf of bereaved families, I have also acted on behalf of organisational, corporate and state bodies and individuals. Most recently, I have been counsel to the Manchester Arena inquiry, so hopefully I am able to see the issue from a number of different sides. My own view is that five issues need to be confronted. Four of them can be confronted through the use of an IPA; the fifth probably cannot be, but I will mention it anyway. What I would like to do is identify those five issues and develop each of them for a minute or two, if that suits the Committee.
In headline form, the five issues are: first, the provision of practical support at every stage of the process; secondly, engagement with public authorities and confrontation of those authorities, if that is necessary; thirdly, the provision of information to bereaved families and survivors and explanation of the processes in which they will be engaged, particularly the legal processes; fourthly, and obviously very importantly, there needs to be the achievement of a full and fearless investigation of what has happened. I won’t say that is critical, but it is obviously of a high degree of importance. That particular matter engages the data protection issue, the disclosure issue, as it has been described, and also the duty of candour issue. The fifth issue, where I think an IPA cannot help and is not intended to help, is legal representation in the inquest or public inquiry. I mention that because it is of a high degree of importance in the overall context of achieving fairness for all bereaved families.
As I indicated, I will say just a little more about each of those issues, if that is thought to be helpful—first, on practical support. It does not need me to say that a major incident can take many different forms. The practical support that is needed for those affected by that major incident can take many different forms. To give a few practical examples, a survivor or the family of the deceased may—indeed very likely will—require counselling. A survivor may require medical treatment, both urgent and on an ongoing basis. A survivor or bereaved family may have been made homeless, which was a common feature of the aftermath of the Grenfell Tower disaster. The education or employment of a survivor or family of the deceased person may have been disrupted, and families at a very basic level may need accommodation while a survivor is in hospital, or while they attend an inquest or public inquiry. It seems to me that all of those things are matters that the independent public advocate or adviser, whichever term one chooses, can help with and ought to be able to achieve and solve on behalf of the person affected, but—and these are big buts—the IPA must be able to do so in urgent response to the need. It seems to me that that requires the appointment of the IPA straight after a major incident. There is a problem in the current drafting, in that leaving it up to the Secretary of State to decide whether there is a major incident and, if so, to appoint an IPA is bound to create a degree of delay. That will be a problem.
Furthermore, the IPA must be able to provide the help and practical support independently of Government. Again, it seems to me that there is a potential problem here with the drafting, in that the appointment is expressly made by the Secretary of State. The terms of the appointment—this is what will be section 25—provide that the appointment of the IPA may be terminated by the Secretary of State on such grounds as the Secretary of State considers appropriate. That does not sound, therefore, like a particularly independent appointment of a person who can be removed, not at the drop of a hat but as a matter of the discretionary decision making of the Secretary of State.
Furthermore, the practical support—here I steal a phrase from the debate that took place on 1 March—needs to be more than mere signposting; it needs to be more than the IPA saying, “Here is a card for somebody who can provide you with counselling.” It goes without saying that all of that needs to be properly funded, but if that is done and the problems are solved I have no doubt that the IPA has a vital function to fulfil in providing practical support.
Q131 Chair: Perhaps we can break it up a little; otherwise, it becomes a monologue. If it is not the Secretary of State who makes the appointment, who does?
Paul Greaney: I strongly favour the idea that there should be an independent-standing IPA. The IPA should exist all the time and be independent of Government. If there is a major incident or disaster, the lead IPA, chief IPA, however you describe it, says there will be an IPA for this situation.
Chair: That is helpful, thank you.
Q132 Dr Mullan: Without wishing to over-anticipate what the other points are in detail, but I can get some sense of what they relate to, it strikes me that the first point about practical support is quite a distinct area of work that would require a whole different realm of expertise in deciding who should be getting counselling, what sort of counselling they should be getting and who should be providing that. Some agencies are already in existence; local authorities are responsible for ensuring that people are housed and the NHS is responsible for ensuring that people get support services. It strikes me that that is quite a different set of responsibilities that requires much more resource and expertise than the other points that typically are part of the discussions to do with representation to authorities, legal advice and processing of information. Do you feel that is appropriate?
Paul Greaney: I completely understand. The reality is that, if survivors and the families of bereaved are to be treated in the way they are entitled to be treated, someone needs to do that—someone needs to draw together those strands and ensure that that practical support is provided. I am not a survivor of a disaster. Jenni will be able to speak to this much more powerfully than I can, but I dare say the position is that many of those who have been affected by a disaster, and have survived or have lost loved ones, will feel that they have not been provided with the support they needed by the bodies you have just identified. Therefore, leaving it to the existing bodies, assuming they will do what needs to be done, is probably a practice that is demonstrated to have failed in the past.
Q133 Chair: Do you want to move on to your second technical point?
Paul Greaney: The second point is a very brief one and involves the idea of engagement with the public authorities and confrontation, if necessary. Sadly, history demonstrates, Hillsborough being the prime example, that where someone or some body is at fault there may be a tendency to create a false narrative as a form of self-preservation. So somebody needs to be there, if there is to be fairness, from the outset to say, “Hang on, that is not what happened. I have now spoken to those who were there on the ground or at the ground, and this is what really happened.” I can hear Jenni agreeing with me, unsurprisingly. If there is that confrontation at an early stage, it seems to me that is vital to be achieved.
Q134 Chair: That is helpful. I understand you had a number of other points.
Paul Greaney: Hopefully, I will deal with the other three points equally briefly. I do not want to be tedious about this, but I think that each is an important point.
On the second point, a role of an IPA can be to inform himself or herself about what has really happened in order to confront a false narrative and, more generally, to engage with public authorities.
Thirdly, there is the provision of information and explanation, so achieving an understanding of the processes that the families of the bereaved and the survivors will encounter. I know that these days coroners and chairs of public inquiries work extremely hard to put the bereaved and the survivors at the heart of their process. Certainly, Sir John Saunders in the Manchester Arena inquiry did that, but I can well understand that such processes still seem alien to those who have not been involved in them before. It seems to me that a vital role of the IPA will be to ensure that those on behalf of whom he is advocating, if that is the right way of putting it, understand the processes in which they are involved. Again, it really is as simple as that.
I warn you that the fourth point is a little bit more complicated. That is the necessity for a full and fearless investigation. After all, based upon my own experiences, that is what all the victims of a tragedy will want. They will want to make certain that somebody skilled in investigation gets to the bottom of what has happened.
There are a number of aspects to a full and fearless investigation. I will probably just scratch the surface of what they are. One of them is legal representation. I will come back to that very briefly in a moment. Another is what I describe as disclosure. What I mean by that is that anyone, whether an individual, corporate body or organisational body with relevant documentation, must retain that documentation and must provide it to the body that is conducting the investigation. To say that is vital is to do no more than state the blindingly obvious.
How that is to be achieved is more complicated. I read with interest the idea of giving the IPA the power to compel disclosure and thereafter retain it. That concept makes complete sense to me because that needs to be achieved, but it seems to me that the idea of giving that power to the IPA is not without complication. Can I just identify a couple of the practical problems that I perceive? I am not saying they are incapable of being resolved. It may be the right route is to give the IPA that power, but there are some practical problems.
First, where there is a police investigation, as often there will be in the aftermath of a disaster, should the IPA still have power to compel disclosure to the IPA? To my mind, that gives rise at least potentially to a risk of prejudice to the investigation. Secondly, sometimes a body that possesses material will have a right to claim confidence in respect to that material or legal professional privilege, and the state may be entitled to claim public interest immunity in relation to that material. Is the IPA to be empowered to handle such material? That is quite a complicated practical problem. Thirdly, where there is an inquest or public inquiry, there is a plain risk of duplication because those processes have their own powers to order disclosure which are backed up by sanction.
Can I make plain that I strongly believe that more needs to be done to ensure that all documentation is preserved? I do wonder whether a resolution, or a significant part of it, is the creation of a duty of candour on public bodies and corporations. Again, there may be complications with that.
Q135 Chair: You are talking about beyond the independent advocate.
Paul Greaney: Absolutely beyond the independent public advocate. The creation of a duty of candour is a critical part, it seems to me, of ensuring fairness to bereaved families and survivors. It needs to be a duty that has teeth. Can I explain what I mean by that?
In the aftermath of the Mid‑Staffordshire public inquiry—I agree that Sir Robert Francis did a brilliant job in that inquiry—a duty of candour was created in the healthcare sector. The fine for breach of that duty by large private hospital organisations or hospital trusts is trivial. I think it is £2,000, which is no kind of penalty.
Q136 Chair: You are saying that there should be a much more significant sanction.
Paul Greaney: Absolutely. There should be a duty of candour. I can see no credible argument against it. There needs to be a significant penalty for its breach.
Finally, at the risk of trying the Committee’s patience, there is legal representation. I entirely recognise that the IPA is not designed to provide legal representation, but I could not agree more strongly with the Bishop that there is a significant risk of inequality of arms in the situation that exists at the moment, and there should be non-means-tested public funding for bereaved families and survivors.
Chair: That is very helpful and comprehensive. Dr Mullan, are there any points that have not been covered?
Q137 Dr Mullan: Listening to you speak, perhaps an independent advocate is viewed as a person who represents and helps to address inequality of arms and the power of the state in any investigation process, and then there is the vision of a public advocate that almost ensures and enacts a process directly to get the result. It seems that you are moving towards that model rather than someone who sits within the existing process of investigations, whether that be coroners or public inquiries.
Paul Greaney: No. I think there ought to be two people, recognising that each person might be more than one, with the IPA fulfilling functions one to four, and there ought to be legal representation for all bereaved families in disaster situations. That will be a barrister or solicitor, which would be the solution to problem five.
Q138 Dr Mullan: If I move on to ask about the consultation that closed four years ago in relation to the creation of an independent public advocate, Mr Greaney, you have given quite extensive views on what you think of the current proposals. I just wonder whether Jenni or Lord Wills have any other suggestions on how the current proposals miss the mark or hit it in some areas. Do you think there is enough detail for you to make that judgment? Perhaps we can start with Lord Wills, and Jenni can add anything she wishes.
Lord Wills: There are a number of problems with the drafting which have already been identified. I hope the Government will look more carefully at things like a panel and various other details. Just to repeat what has already been said, the main thing is that the Government’s proposals are to be welcomed, in that they have adopted the concept, which I think is pretty universally welcomed. What they have not done is adopt two of the key matters that were fundamental to the Bill put forward by the right hon. Member for Garston and by me in the House of Lords. That is mechanisms for full transparency. We have heard today some of the things needed to achieve that. That is not in the Bill.
The other thing is that it denies any effective agency for the bereaved and the victims. That has to change. As the Bishop set out very clearly and cogently, we know that has to change. For some reason, the Government have given and reserved to the Secretary of State powers that are unacceptable. I very much hope that the Government will think again about that.
Q139 Dr Mullan: Jenni, is there anything you want to add? Do not feel under pressure to respond.
Jenni Hicks: I do have something to say. In fact most of the statements I had written down in answer to the questions, Paul Greaney has just answered, as has Lord Wills.
As for the current suggestion, I think it was Dominic Raab who got up in Parliament. He is no longer with us. He did not stress the “independence” side of it to me. It sounded more like a tea-and-sympathy approach, which, yes, in some cases you need, but you also need the practical support, particularly in getting the documentation you need to get to the truth of how your loved one died. That did not get one mention at all in that document. That disappointed me, as well as the fact that there was no stress on the independence of the public advocate.
Q140 Edward Timpson: It seems that in the evidence we have taken today there has been consensus on the need for an IPA to be involved in the immediate aftermath of any tragedy and that the genuine independence that follows and full transparency will be essential in getting to the truth, but as the Bill stands currently under clause 24, going back to the point about the Secretary of State’s ability to appoint an individual to act as an IPA—this may be something Mr Greaney can help us with—what recourse would be available to victims if the Secretary of State refused to appoint an IPA to act following a major incident?
Paul Greaney: As I have read it, the Bill does not provide any appeal process, so the only route would be a public law challenge by way of judicial review, which sets a high threshold. It would need to be demonstrated that the Secretary of State’s decision was outside the range of all reasonable decision making or otherwise wrong as a matter of law.
Q141 Edward Timpson: Lord Wills, is that your reading of it as well?
Lord Wills: Yes. There, in a nutshell, is the problem with the Bill as currently drafted. To ask bereaved families to undertake all the grief and expense of judicial review is simply unacceptable.
Q142 Edward Timpson: Can I invite you to look at the scenario that has been proposed today, which is the appointment of the IPA not by the Secretary of State but for there to be a standing lead IPA who would take on that responsibility, and the scenario in which they themselves decide that they will not undertake an inquiry after a major incident? In those circumstances what should the Secretary of State have the power to do or not to do, as the case may be, and is there anything that the families can do to challenge that decision?
Paul Greaney: I have difficulty in anticipating a type of scenario in which it would be appropriate for an IPA to be appointed in a disaster or major incident-type situation and the IPA would say, “No, I am not going to fulfil the functions set out for me in the Act.” If we had a Hillsborough, Manchester Arena or Grenfell Tower-type situation and the chief IPA took that decision, plainly it would be wrong and irrational and would be successfully challenged in the courts. I cannot see any harm in the Secretary of State having a power, if an IPA were to act in such an irrational way, to direct that there should be the exercise of the powers, but probably for all practical purposes it would be unnecessary, because, first, it would not happen and, secondly, if it did, it would be challenged successfully very quickly.
Lord Wills: There is an argument for some discretion in the sense that each of these disasters shares a pathology of reactions by the powerful, but they are different. The Bishop mentioned ways in which the circumstances can be various that are not really envisaged in the drafting of the Bill at the moment, but what is absolutely crucial is that the Secretary of State must—must—have regard to the wishes of the bereaved and victims. It is just not enforceable as the Bill currently stands. There are various mechanisms—the learned gentleman has just suggested one way—but the Bill as currently drafted does not encompass them, and it should.
Q143 Janet Daby: Lord Wills, can I pick you up on the point to do with the panels? Clause 26 of the Bill would enable the Secretary of State to create a panel of advocates following a major tragedy. There is provision in the Bill for them to appoint a lead independent advocate as well. Tell me a bit more about your view on that and what you think the drawbacks are.
Lord Wills: The idea of a panel is an improvement on my original Bill. In my Bill, the advocate was modelled on the independent reviewer of counter-terrorism legislation, which did not have the same urgency about it. That role does not have the same urgency that an independent public advocate in this context would have. I could imagine circumstances in which that designated independent public advocate might not be available for professional reasons, reasons of health or whatever. Therefore, having a known panel to be drawn on so that everyone would know who they were and would, we assume, be broadly acceptable to the wider public seemed to me a good idea then.
To have a lead advocate and then lots of advocates all dealing with different members of families seems wholly impractical to me in this way. If we take a public disaster where, let us say, there are 250 victims or 250 bereaved, or a very large number of people, presumably the Government’s thinking is that they would be divided up somehow into groups. There is no idea of how. It would be completely arbitrary in the hands of officials and Ministers, and each would have a separate independent advocate. They have tried to get round the potential muddle of this by having a lead advocate, but the drafting is clear; it says there may not be a lead advocate. “The Secretary of State may appoint one of the advocates as the lead advocate,” but he or she may not. It may be that a nefarious Secretary of State decides that it is very much in the state’s best interest to have a muddle with all these different advocates competing against one other.
It then says that an advocate “must have regard to any directions given by the lead advocate”. They “must have regard to it”, but they do not have to follow it, so it opens up the possibility that you do not know how many advocates there would be, all of whom may have different views. There may be lawyers, with respect to the learned gentleman, who make their living from arguments, and it all seems a recipe for chaos, but, above all, it would be enormously distressing for all the families to be put in the middle of all this. I just do not think the Government have properly thought through the potential consequences of this. I hope they will think again about this particular clause of the Bill.
Q144 Janet Daby: You feel that a lot more work needs to be done on this area. Is that what you are saying?
Lord Wills: I do, definitely.
Q145 Janet Daby: If I may turn to Jenni Hicks, I am really sorry for your loss in the first place. I was interested in what you were saying in the context of the word “independent”. You indicated that you do not feel that that has been mentioned or given the credence it needs within the Bill.
Jenni Hicks: After a disaster, particularly one where you have difficulty in getting at the truth, it is vitally important to have the trust of the people for whom the public advocate will be working, because that is what he is there for. We have discussed many things, but the main reason for a public advocate is to be there on behalf of the families. That important point is being missed today. They should come first and foremost. They have to trust this person.
Certainly, in the case of Hillsborough and those in power and authority there was no reason to trust anybody. That is why I am stressing that they have to be independent of outside sources and any prejudices. It is vitally important. That is my reason for stressing it, having been there and worn the T-shirt and still wearing the T-shirt, because we are still waiting for reports that have not come along. I had an awful incident over my daughter’s pathology only last November.
It is going on, so we have to have trust in the people who will be appointed to these important roles. It is a very, very important role. As I say, the role of the public advocate is to work on behalf of the families. Apart from when we have paid lawyers, we have never had anybody working on behalf of us in that kind of role before. That is why I am stressing that point.
Janet Daby: Thank you very much. That is very important.
Q146 Chair: That is very helpful.
Mr Greaney, can you help me on this? You made a point earlier about potential conflicts or difficulties that might arise around disclosure when there is an interest or inquiry and they have their own disclosure regimes in effect. If there has been a disaster and it has resulted in death it is inevitable that there will be an inquest, and there may well be a public inquiry of one form or another as well. What role do you envisage the independent public advocate playing in relation to any inquest or public inquiry?
Paul Greaney: The role that I envisage would be the continuation of the provision of practical support to those whose interests the IPA was representing; forming a liaison between the families and counsel to the inquest or the inquiries; and I was also much interested by the proposal of the Bishop that in some way the IPA might be able to provide a statement at the beginning of the process that drew together the experiences, in so far as possible, of all of those affected by the disaster. I think that would be of real utility in the process.
Q147 Chair: One other thing I noticed in the Government’s proposals is that the public advocate would be prohibited from carrying out any legal activity. You and I might be biased as lawyers, but I wonder what your take is on that. Why do you think it is there, and what is or is not the practical implication of it?
Paul Greaney: I have understood that it is there to draw a sharp line between, on the one hand, the role of the IPA and, on the other hand, the role of the lawyer. I know that the Bar Council has also considered that for a member of the Bar to carry out all of the functions of the IPA on behalf of a large number of people might create some difficulties in managing conflicts, so I imagine it is about drawing a line.
Chair: I understand that.
Q148 Maria Eagle: The Government’s proposals enable the Secretary of State to require that the IPA produces a report to him on the treatment of victims during an investigation, inquest or inquiry process. Lord Wills, there are provisions in the Bill that you and I have been taking forward about reporting to Parliament. Do you see the proposals that the Government have come forward with as being in any way similar, or are they completely different? Which would you prefer to see: a report being laid before Parliament or the report to the Secretary of State? Is there any real difference?
Lord Wills: I think there are very considerable differences. It is absolutely critical that the Secretary of State is accountable to Parliament for all sorts of reasons, not least because in the event of any major public disaster there are likely to be very considerable numbers of MPs with constituency interests in this, not just constituents who have died in the tragedy and relatives of the victims. It is quite wide. Indeed, the definitions in the Bill about close friends and family are very wide-ranging. It could involve quite large numbers of people. An MP should have the right to call to account the Secretary of State for whatever decisions they make in this matter. At the moment the powers of the Secretary of State in this area seem to me to be largely unfettered, and that is wrong.
Q149 Maria Eagle: Mr Greaney, do you have anything to add?
Paul Greaney: I do, and your question gives me the opportunity to make a point that I feel very strongly about. There ought to be a report by the IPA at the conclusion of the process. I can well understand why it is thought important that that should be to Parliament. I have thought rather more about the form of the report. It seems to me that what the report ought to be focused on is obviously the treatment received by the victims during the course of the process. It ought to be focused on learning lessons. The IPA ought to make recommendations and there ought to be some mechanism for monitoring those recommendations. This has been a problem across inquests and public inquiries for a long time. Recommendations are made and there is not sufficient power to monitor them. Therefore, recommendations should be contained in the report and they should be monitored.
Q150 Maria Eagle: Jenni Hicks, the Hillsborough Independent Panel produced a report, but it was shown first to the families and then published. What it set out was the truth on the basis of all the documents that had been examined and the work that had been done over the years that the independent panel did its work. Do you have any views about an independent public advocate’s reporting obligations? Do you have any views about to whom they should report and what the report should contain?
Jenni Hicks: If it is anything like the Hillsborough Independent Panel report, I am all for them making the report. So, yes, I think it is okay; I am okay with a report. I just wish the Government would respond to Bishop James Jones’s report.
Q151 Maria Eagle: Yes, in due course.
Jenni Hicks: It is ridiculous that we have had to wait so long for that; it is beyond ridiculous really.
Q152 Maria Eagle: The last promise was that it would be produced this spring. I suppose we are still just about in spring, but it has been since 2017.
Jenni Hicks: It is five years.
Chair: We need to move forward a little bit because I know that a vote will be coming up soon. That will interrupt the proceedings and we may not be able to return.
Q153 Maria Eagle: The final point for me, Chair, is whether or not the panel members think that the IPA ought to be able to establish an independent panel such as the Hillsborough Independent Panel if it wishes to do so.
Jenni Hicks: That is exactly how I think it should be; that would be my recommendation, and to report as they did too.
Lord Wills: I certainly agree. One of the things that is quite sad about the way the Government have adopted it is that they seem to be prepared to ditch all of the valuable learning of the Hillsborough Independent Panel. It was a remarkably successful exercise. It was chaired by the Bishop in such an excellent way. All the panel members with different expertise did their job very well; the archiving of all the material was exemplary in my lay view. All that learning and expertise ought to be a model. There ought to be a presumption in favour of it. You cannot legislate for every single conceivable circumstance. There certainly ought to be a presumption in favour of it. That will be a legacy of all those panel members and a legacy for all the campaigning and struggle of the families for decades.
Jenni Hicks: I totally agree.
Q154 Chair: We have already touched on the issue of the public advocate accessing and obtaining data. Should there be any legal powers for the advocate to compel disclosure to themselves?
Paul Greaney: I do not know the answer to that question. I think it is a difficult issue to resolve. Certainly, steps need to be taken to ensure that all documentation is retained, but I have wondered whether a strong duty of candour is the way to achieve that.
Chair: I get that.
Q155 Janet Daby: I think many of the points have been covered. Paul Greaney, I am very interested in your points one to five. I just wonder whether the document you have written up could be passed to the Committee. It might be quite helpful for us. Are there any other statutory powers that an independent public advocate needs to be able to carry out his work effectively? Perhaps I may turn to each of you. Is there anything else?
Lord Wills: There is nothing I have not already mentioned. The two things are effective agency for families and transparency.
Q156 Janet Daby: Is there anything further?
Paul Greaney: Again, there is nothing I have not mentioned. I do not underestimate the difficulty that those drafting this legislation have, but obviously there are some issues that need to be addressed.
Q157 Janet Daby: Jenni, is there anything further?
Jenni Hicks: I think I have made my points already: the independence so you can have the trust of those they are working on behalf of; transparency over the documentation; and a duty of candour.
Chair: Thank you all very much. I think we have covered the ground very fully and I am grateful to you for that. We have managed to do it before being interrupted, which is good news, otherwise it is obviously not satisfactory. We wanted to get everything in. Unless anybody feels we have missed anything out—I do not think we have—I thank all three of you very much indeed for coming to give evidence to us and for your time. It is much appreciated. The session is concluded.