Part 2: Victims of Major Incidents
Meaning of "major incident" etc.
Section 34: Meaning of "major incident" etc.
- This section defines key terms for this Part of the Act including "major incident", "harm", "victims" and "advocate".
- Subsection (2)(c) requires the Secretary of State to declare a major incident in writing. This is to avoid any doubt that a major incident has been declared for the purposes of this Part of the Act.
- Subsection (3) requires the Secretary of State to consult with Welsh Ministers before declaring an incident that occurs in Wales to be a major incident.
Section 35: Appointment of a standing advocate
- This section requires the Secretary of State to appoint a standing advocate, which is a permanent position.
- The standing advocate has particular functions, which are set out in subsection 2. These functions include advising the Secretary of State on how victims of major incidents and their treatment by public authorities in response to major incidents can be furthered; advising other advocates as to the exercise of their functions by, for example, developing best practice; and producing an annual report under section 30 to explain to the Secretary of State how they have discharged their functions.
- The standing advocate could advise the Secretary of State under subsection 2(a)) on the most appropriate form of government review following a major incident so that lessons can be learned. This review could include a statutory or non-statutory inquiry.
- Subsection (3) makes clear that the standing advocate may take steps to facilitate the exercise of their functions or the functions of another advocate; or they make take steps which are incidental or conducive to their functions or the functions of another advocate. In practice, this could involve the standing advocate taking steps to upskill, build relationships and prepare ahead of a major incident.
- The Secretary of State must be satisfied that they are appointing a qualified person to be the standing advocate under subsection (4).
- When advising the Secretary of State on the interests of victims of major incidents and their treatment by public authorities in response to major incidents under subsection 2(a), the standing advocate must have regard to the definition of public authority in subsection (5), which does not include the Security Service, the Secret Intelligence Service or the Government Communications Headquarters.
Appointment of advocates
Section 36: Appointment of advocates in respect of major incidents
- This section provides for the appointment of an individual to act as an advocate for victims of a major incident. A reference to an advocate includes the standing advocate only if they have been appointed in respect of that incident.
- The Secretary of State may appoint the standing advocate under this section to act as an individual advocate for victims of a major incident. If the Secretary of State wishes to appoint a different person, then they must be satisfied that the person is both qualified and appropriate to appoint in respect of the incident. Subsections 5-6 provide further guidance on these criteria.
- The Secretary of State is required to consult with Welsh Ministers before appointing an advocate in respect of a major incident that occurs in Wales.
Section 37: Terms of appointment
- This section provides for the terms of appointment of an advocate, which includes both the standing advocate appointed under Section 35 and an individual advocate appointed in respect of a major incident.
- The section also provides for other matters relating to the terms of appointment including termination, pay and secretarial support under subsections (2)-(4).
- An advocate is not to be regarded as the servant or agent of the Crown, or as enjoying any status, immunity or privilege of the Crown under subsection (5).
Section 38: Appointment of more than one advocate in respect of major incidents
- This section allows the Secretary of State to appoint more than one advocate in respect of the same major incident. This could be necessary for larger scale events with high numbers of victims to provide resilience, or where specific expertise is required.
- If the Secretary of State appoints more than one advocate, the lead advocate must be appointed under must under subsection (2). An advocate must have regard to any directions given by the lead advocate as to how they are to exercise their functions in respect of the incident.
Functions and powers of advocates in respect of major incidents
Section 39: Functions of advocates in respect of major incidents
- This section governs the functions of an advocate appointed in respect of a major incident under section 25(1).
- Subsection 3 makes clear that an advocate can provide support to victims through a representative, subject to the conditions set out in the Act, namely that the representative is over 18, and would not, in representing victims, carry on a legal activity.
Section 40: Role of advocates under Part 1 of the Coroners and Justice Act 2009
- This section amends the Coroners and Justice Act 2009 to include an advocate as an interested person under section 47(2) of the Coroners and Justice Act 2009.
Functions and powers of advocates: general
Section 41: Reports to the Secretary of State
- This section specifies the situations in which a report will be produced by an advocate. The Secretary of State can give notice requiring an advocate to report; or an advocate can report to the Secretary of State at their own discretion. If more than one advocate has been appointed in respect of the same major incident then only the lead advocate can report in relation to the incident.
Section 42: Publication of reports
- This section clarifies how reports made by an advocate are published; what information can be omitted from these reports; and the obligation on the Secretary of State to lay reports before Parliament.
- The Secretary of State must publish any annual reports made by the standing advocate and any reports which they commission from the advocate. There are, however, some reports which could fall outside of the obligation to publish and these are discretionary reports made by an advocate. These reports will only be published if the advocate requests in writing that the report should be published.
- The Secretary of State can publish reports in a manner as they see fit under subsection (2), which could, for example, be on a Government website. The Secretary of State may omit material from a report before publishing under the criteria set out in subsection (3).
- The Secretary of State can omit material from a report to be published following a major incident where the Secretary of State considers that publication of that material would prejudice certain investigations, inquiries or inquests
Section 43: Information sharing and data protection
- This section provides for the sharing of information, by an advocate; and for the sharing of information with an advocate.
- An advocate may share information received in the exercise of their functions with specified persons under subsection (1). A person exercising functions of a public nature may share information with the advocate, as they consider appropriate, for the purposes of the advocate exercising their functions under subsection (2).
- The section does not compel the sharing of information by, or with, an advocate.
- Subsection (6) makes clear that the data protection legislation applies to the sharing of information under this section. The definitions in subsection (7) only apply to this section of the Act.
Guidance for advocates
Section 44: Guidance for advocates
- This section provides for the Secretary of State to issue guidance to advocates appointed in respect of a major incident, which an advocate must have regard to when exercising their functions.
- Subsection (2) makes clear that the guidance cannot be directed at any specific advocate or related to a specific major incident. In practice, this guidance must be general and could include considerations around identifying victims and proportionality in supporting multiple close family members of the deceased.
Consequential amendments
Section 45: Consequential amendments
- This section provides for the consequential amendments related to Part 2 of the Act to insert an advocate appointed by the Secretary of State into the following pieces of legislation:
- Schedule 1 to the Public Records Act 1958. This will place obligations on the advocates to properly protect and preserve records;
- Schedule 2 to the Parliamentary Commissioner Act 1967. This brings the advocates under the remit of the Commissioner and allows for complaints to be made and investigated, adding a layer of accountability;
- Schedule 1 to the House of Commons Disqualification Act 1975. This prohibits any sitting MPs from also being an advocate;
- Schedule 1 to the Freedom of Information Act 2000. This will bring the advocates under the remit of freedom of information requests and the information commissioner; and
- The public sector equality duty in section 149 of the Equality Act 2010 will apply to an advocate. The duty applies to public bodies listed in Schedule 19 to the Act, which is amended to include an advocate.
Reviews
Section 46: Review of duty of candour in relation to major incidents
- This section requires the Secretary of State or the Minister for the Cabinet Office to carry out a review to determine the extent to which additional duties of transparency and candour should be imposed on public servants in relation to major incidents. This section specifies that this must be carried out before 1 January 2025.
- Subsection (2) allows the Secretary of State or the Minister for the Cabinet Office to arrange for another person to carry out the review.
- Subsection (3) requires for a report to be prepared, published and lay before Parliament on the outcome of the review.
- Subsection (4) clarifies what ‘public servant’ means for this section.
Section 47: Review of operation of Part 2
- This section requires the Secretary of State to review the operation of Part 2 (the Independent Public Advocate) after 18 months of which the power in section 36(1) is used. This is the appointment of an advocate in respect of a major incident and when the advocate is first stood up in response to a major incident.
- This section requires a report to be produced on this review and laid before Parliament.
