My Lords, I thank the noble and learned Lord, Lord Hope of Craighead, for his amendment. This group of amendments concerns the independence of the advocate, and therefore I will discuss them together.
First, the amendment from the noble and learned Lord, Lord Hope of Craighead, seeks to limit the discretion of the Secretary of State as to the grounds on which an advocate’s appointment in respect of a major incident may be terminated. I believe it will be helpful if I explain the rationale behind the current provisions in the Bill. I hope that the noble and learned Lord will be reassured that this power will be used carefully.
There are a number of scenarios in which we envisage the Secretary of State exercising their discretion to terminate the appointment of an advocate. First, for the scheme to be as agile as possible, it is important that we can adapt the resource required to support victims. No major incident is the same, and the processes that follow can often take years to conclude. During this time, there will likely be peaks of activity when it may be prudent to increase the number of advocates actively supporting victims. Following these peaks, it is only right that the Secretary of State has the ability to scale back the scheme to be proportionate. This power enables the Secretary of State to do that effectively.
Secondly, we have always stressed the importance of being able to deploy an advocate as quickly as possible following a major incident. It may be appropriate, following a greater understanding of the developing needs of the victims, to substitute one advocate for another who may be better suited by virtue of their skills or expertise. The Government believe that having this flexibility is important. This amendment would diminish the Secretary of State’s ability to ensure that victims have the best possible representation.
Thirdly, as we have heard throughout the various debates on this part of the Bill, it has been highlighted that victims must have confidence in the advocates for them to be effective. The Government therefore anticipate another use for this power: to remove advocates who may not command the confidence of victims, as touched
on by the noble Lord, Lord Marks, in the debate on the previous group, or stand down any advocates towards the end of official processes because victims no longer want or need support from the advocate.
To go a little further, the reasons why the Secretary of State may terminate an advocate’s appointment could also include a lack of capacity, misbehaviour or a failure to exercise their functions in accordance with their terms of appointment. These terms of appointment, including the potential grounds for termination, will be published. The views and needs of victims are incredibly important. A strong emphasis will be placed on the support needs of the victims, and decisions on the termination of an advocate will always be made with these in mind. Therefore, while I understand and recognise the intent of the noble and learned Lord’s amendment, the Government believe it is necessary for the Secretary of State to have a wider discretion in this area.
I completely agree with the noble and learned Lord, Lord Hope, that independence is critical. We believe that the Bill protects that. However, there was a constructive suggestion from the noble and learned Lord, Lord Thomas, that “independent” be added to the definition of the advocate in the Bill. I will take that away to the department.
The amendment from the noble Lord, Lord Wills, would impose a duty on the Secretary of State to provide the advocate with
“secretarial and all other support necessary for them to exercise their functions effectively”.
While he is not in his place, I would like to answer the noble Lord, Lord Marks, on this point. The advocates will be supported by a permanent secretariat, and the Ministry of Justice has already allocated funding for this. Clause 31 provides for an effective system of support for the independent public advocate by making provisions for a secretariat and remuneration. Work is already under way to provide the advocates with this secretariat and to ensure appropriate separation between them and the Ministry of Justice.
I will take the amendments from the noble Lord, Lord Ponsonby, in turn. The first seeks to make it clear in the Bill that advocates will sit within the Ministry of Justice for administrative purposes but be operationally independent. While I support the intention and spirit behind this amendment, the Government do not believe that this is necessary as this is already our intention for how this new statutory office will operate. Furthermore, the wording of this amendment may not best achieve its goal. It is generally not helpful to refer to government departments by name in legislation, due to any potential machinery of government changes.
The Government are committed to the operational independence of the standing advocate and any advocates appointed in respect of a major incident. The Government took steps to bolster the advocate’s independence earlier in this Bill’s passage by empowering them to report independently and at their own discretion. The legislation is also clear that the advocates will make decisions and utilise their experience to provide support to victims of a major incident in a manner they deem appropriate.
The other amendment from the noble Lord, Lord Ponsonby, seeks to transfer the power to issue guidance to advocates appointed in respect of a major incident from the Secretary of State to the standing advocate. I reiterate the Government’s commitment to the operational independence of the standing advocate and any advocates appointed in respect of a major incident. They will be empowered to take decisions and utilise their experience in a manner that the advocates deem appropriate. However, given the nature of major incidents and the unpredictability of the future, we believe that the Secretary of State’s ability to issue guidance is crucial to future-proof the scheme. The Government are mindful that guidance issued by the Secretary of State should not have any effect on the independence of advocates, which is why Clause 38 specifically prevents this guidance being directed at any specific advocate or incident.
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I also underline that guidance issued under Clause 38 cannot limit or alter the advocates’ functions, as outlined in Clause 33. However, we expect that the advocates’ role will develop over time, and it is important that the Secretary of State can issue guidance to help support them, and to ensure consistency in the support they provide to the victims of major incidents. We imagine, for example, that advocates may find it useful for such guidance to include how they may indirectly support victims under 18, or on working with victims or their families who do not speak English or do not reside in the UK.
I turn to the specifics of the noble Lord’s amendment. In practice, the standing advocate will, in most cases, be appointed by the Secretary of State as the advocate in respect of a major incident. This amendment, therefore, which allows only for guidance by the standing advocate to apply to other advocates, would be applicable only where the Secretary of State appoints multiple advocates. We have already made provisions under Clause 32 for a lead advocate in these situations to provide structure, guidance and accountability.
Therefore, while I recognise the intent of the noble Lord’s amendment, the Government believe that it is necessary for the Secretary of State to retain the power to issue guidance to the advocates. There is no doubt that the views and expertise of the standing advocate may be useful in informing this group going forward. I hope this satisfies the noble Lord, Lord Marks, that guidance will never impact on the independence of the actions of the independent public advocate. I respectfully ask the noble and learned Lord, Lord Hope of Craighead, to withdraw his amendment.