Baroness Chapman of Darlington:

Moved by Baroness Chapman of Darlington

47: After Clause 42, insert the following new Clause—“Publicly funded legal representation for bereaved people at inquests(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.(2) In subsection (1), after “(4)” insert “or (7).”(3) After subsection (6), insert—“(7) This subsection is satisfied where—(a) the services consist of advocacy at an inquest where the individual is an interested person pursuant to section 47(2)(a), (b) or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased; and(b) one or more public authorities are interested persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.””Member’s explanatory statementThis new Clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.

My Lords, with the permission of the Committee, my noble friend Lady Chakrabarti and I have had a conversation and, in order to move things along, we have agreed that I will speak to her Amendment 49 as well as Amendments 47 and 48.

Having listened to the Minister’s response to the last group, I am incredibly disappointed at the lack of willingness to engage on the issues we were discussing. I really do not hold out much hope on this group, but these are matters that are of such importance. We have tried pushing this issue in the past via other Bills. Perhaps Covid and perhaps just more understanding and the work of Inquest are getting us to a point where the pressure to resolve this problem is increasing substantially. I know that the Minister understands the point we are trying to make. I get that he has a position he needs to defend, but he understands where we are coming from, so it would be welcome if he could try to do something through this Bill to try to improve the situation for bereaved families at inquests.

Amendment 47 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation at inquests where public bodies, such as the police or hospital trusts, are legally represented. Amendment 48 would remove the means test for legal aid applications for legal help for bereaved people at inquests. Amendment 49 would insert a new Clause that would bring the LASPO Act into line with the definition of family used in the Coroners and Justice Act 2009.

The problem that we are getting at with these amendments is well understood. There are plenty of examples to which we can all refer. This is fundamentally about fairness. I pay tribute to the work of Inquest—we have referred to that organisation a couple of times—which has worked so hard on more than 2,000 cases, with 483 families currently receiving its support.

People who die in police custody, prison, hospital, a care home or a disaster such as Grenfell or Hillsborough need support in order to secure effective understanding and scrutiny of what has taken place. At Second Reading and again just now, the Minister said that the state did not need to fund representation for families as our system is not adversarial. I do not want to go through the whole argument again, but it is just nonsense. If relatives have to fight to discover the truth about what has happened to their loved one, with lawyers putting events in a way that suits the institution and with points that are contestable not allowed to be contested, that is in effect adversarial. The family’s desire to uncover the truth and the institution’s desire or need to conceal it, or to be insufficiently curious about discovering what has happened, are competing aims.

The two parties—I am not going to get into what and what is not a party: we know what we are talking about—might not be adversaries in a formal legal sense, and we understand that, but their competing, different interests mean that there is an inequality of arms which results in injustice for a bereaved family. That is what is happening. I do not believe for a minute that the Minister thinks I am wrong about that; it is just that at the moment he does not feel able to move the Government forward to do something about it.

Inquests are intended to seek the truth and to expose unsafe practices and abuses of power. They are about learning, so that lessons can be taken and future deaths prevented. This opportunity to learn is undermined by the pitting of unrepresented families against multiple legal teams defending the interests and reputations of state and corporate bodies. Public bodies have unlimited access to legal representation at public expense. Too often, families have absolutely nothing. At one of the most difficult periods in a family’s life, they are unrepresented.

Legal aid is granted under the Government’s exceptional funding scheme only if it is considered that there is a wider public interest in the inquest or if it is an Article 2 inquest, where a death was in state custody or it could be argued that the state failed to protect someone’s right to life. It must also meet the financial means test. Removal of the means test in these cases will be helpful, but given that asking people to demonstrate Article 2 qualification is such a high bar, this will not be sufficient to correct the injustice that many families are experiencing now. The evidence for change is completely overwhelming. I hope the Minister will not rely solely on the adversarial/inquisitorial argument. Frankly, it is beneath him. I hope that he will feel able to persuade his colleagues of the need for change. I will say no more. I think that is sufficient to make the point today, but I do not see a situation where we will not come back to this on Report or in future Bills. I gently suggest to the Minister that we have a Queen’s Speech coming up. This is such a problem for the coroners service across the country that it might be worth a Bill in its own right. We could then do justice to the service and to the experience of bereaved families. We are not doing so at the moment.

My Lords, in the mists of time I was articled to Maurice Evans, who was the coroner on the inquest of the 266 miners who lost their lives in the Gresford disaster. The mine owners were represented by Hartley Shawcross, later the chief prosecutor at Nuremberg, Attorney-General in the Attlee Government and after that a very distinguished Member of this House. On the other side for the miners there appeared pro bono Sir Stafford Cripps, who later became the Chancellor of the exchequer in the Attlee Government. There was equality of arms there. That is what it means, that is what it is about and that is what these amendments are about.

Inquest has very helpfully set out a schedule to its briefing in which it outlines what representations have been made over time. In 1999, Lord Macpherson in the Stephen Lawrence inquiry said:

“That consideration be given to the provision of Legal Aid to victims or the families of victims to cover representation at an Inquest in appropriate cases.”

That is 23 years ago. The Corston report and the review led by the noble Lord, Lord Harris, made similar recommendations. His Honour Judge Sir Peter Thornton QC was the first Chief Coroner appointed and I knew him very well; he was in my chambers. He made his report in 2015-16 and said:

“The Chief Coroner … recommends that the Lord Chancellor gives consideration to amending his Exceptional Funding Guidance … so as to provide exceptional funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested persons.”

You could actually take that and make it the Amendment we are seeking to put before the Government. Dame Elish Angiolini carried out an independent review of deaths and serious incidents in police custody in 2017 and put it this way:

“For the state to fulfil its legal obligations of allowing effective participation of families in the process that is meaningful and not ‘empty and rhetorical’ there should be access for the immediate family to free, non-means tested legal advice, assistance and representation immediately following the death and throughout the Inquest hearing.”

The right reverend Bishop James Jones in the Hillsborough review said that:

“Publicly funded legal representation should be made available to bereaved families at inquests at which a public authority is to be legally represented … the requirement for a means test and financial contribution from the family should also be waived in these cases. Where necessary, funding for pathology or other expert evidence should also be made available.”

I could go on because there are a large number of these quotes but, coming closer to the present time, the Joint Committee on Human Rights in 2019, considering the detention of young people with learning disabilities and autism, said that:

“Families must be given non-means tested funding for legal representation at inquests where the state has separate representation for one or more interested persons.”

The Justice Select Committee, reporting last year in the other place, said:

“Bereaved people should not be put through the difficult and time-consuming process of meeting the exceptional cases requirements and the means test for legal aid where public authorities are legally represented at public expense at the inquest into the death of their loved one. The Ministry of Justice should by 1 October 2021, for all inquests where public authorities are legally represented, make sure that non-means tested legal aid or other public funding for legal representation is also available for the people that have been bereaved.”

Your Lordships will see that this is not a single voice calling. Everybody who has looked at this particular problem realises that there is no equality of arms, as there was in the Gresford disaster inquest, and that families suffer as a result. They cannot put their case adequately. It is time that the Government should grasp this and not go back to talking about coroners being inquisitorial, therefore we cannot have proper legal representation and so on. It is just shutting your eyes to what is going to happen, and I am sure it is going to happen with the quality of advocacy of Inquest and other people. I hope it will happen through this Bill if we can get together and put the proper amendment forward.

I do not want to repeat anything that the noble Baroness, Lady Chakrabarti, said in her moving contribution earlier, nor anything said by the noble Lord, Lord Thomas of Gresford, but perhaps I can remind the Minister that we are talking about people who do not have much money and are often in the worst position of their lives, in that they have lost somebody whom they loved very deeply. They are not at a point in their lives where they can cope with the sort of the pressure that the Government are making happen to them. Honestly, the Government are so penny-pinching when it comes to things like this—and student education; indeed, any number of other things—yet they do not make multi- nationals pay their taxes. I do not understand why we ever think that Conservatives are good at running the economy; I think that they are rubbish.

Every death in custody, of any sort, means that a family is bereaved. They may therefore not be thinking clearly and may be extremely upset. For them, the injustice is perpetuated and they are re-victimised because the inquest system is unable to give them the sort of justice they need. Without equality of arms against state parties, effective justice is extremely difficult to achieve. These issues come up time and again; the arguments are well rehearsed. The Government have access to unlimited public funds to instruct the very best lawyers, while the bereaved must navigate complicated legal aid applications in the vague hope that they might be awarded a scrap of money towards their legal costs. It just sounds so mean. It is absolutely mean of the Government. Far too often, the outcome is that inquests and inquiries are seen to have resulted in a damage limitation exercise—an exercise in saving reputations and finding excuses.

I had a grandfather who was killed in the Senghenydd mining disaster. Some 440 men and boys were killed in 1913. The mine owners were brought to court on various issues and paid a total of five and a half pence for every life lost in the mine. This debate reminds me of that: we just do not understand the sort of pressure that we put on people when we do not allow them the legal means to achieve what they need to achieve. It is a bit like the Sue Gray report. Everybody is told that they have to wait until the inquiry is finished but there is another excuse and another delay until, possibly years later, the authorities and everyone have simply forgotten about it.

Here, of course, we all want justice to be done. We all want life to be fair—that is why I am in politics, anyway—but these proposals are not fair. I really hope that the Minister will meet Inquest members because they can give him a first-hand understanding of the pressure and pain that families experience. Justice will not be seen to be done until families are given automatic, non-means-tested legal aid on a footing equivalent to that provided to state parties.

My Lords, if noble Lords will permit me, I would like to make a short Intervention. I have not taken part at all in the debates on Part 2 because I wanted to find my feet more in this House. I do so as a member of the council of Justice and, until recently, president of the Civil Court Users Association. I certainly intend to get further involved on Part 2 when we get to Report.

To go back to what the noble Lord, Lord Thomas of Gresford, said, in the mists of time I was called to the Bar in 1963, and in the 1960s and 1970s, legal aid was one of the most socially important provisions that the Labour Government of 1945-51 had brought in. The other one, of course, was the National Health Service and it has been treading backwards ever since that Labour Government went out of power. It is very sad. I remember sitting on a lot of legal aid cases. The problem with legal aid cases was not the lack of spread of legal aid; it was the slowness of the fees coming in. Sometimes they took 18 months or two years to come in, but they did come in and they were very highly supportive of those involved in legal aid. As we see now, particularly in our discussions of coroners, legal aid is no longer supplying the social need that it set out to do, successfully, in 1945. It gets ever more depressing that there is not further support or further money available to support legal aid now, in our present age of the 2020s.

My Lords, the amendments in this group, Amendments 47, 48 and 49, would introduce three new clauses on legal aid for inquests. Let me make two points right at the start. First, we have now heard about two colliery disasters. The Gresford disaster was something that my late grandfather used to talk about, although he was from south Wales and not north Wales. As a boy, and I have just been looking it up, one thing that stuck with me when he talked about it was the numbers: 266 people were killed in that disaster. Only 11 bodies were recovered because of the understandable, albeit controversial, decision to seal the districts. I remember as a young boy hearing him talk about how that added immensely to the grief that the families went through, because there was no body to bury. I was very moved, if I may say so respectfully, by the noble Lord’s reference to that.

Secondly, as a matter of introduction, it has been suggested by a number of noble Lords that I should meet Inquest. I hope I have established that my general approach is to meet anybody who reasonably wants to meet me. I would be very happy to meet Inquest; I will ask my office to arrange that. Of course, I am sympathetic to the difficulties facing all bereaved families. We certainly take the view that the bereaved family should be at the heart of any inquest process that follows a death. I set out on a previous group, and I will not repeat, the inquisitorial point: I know that is an issue on which we are not going to agree, so I just ask the Committee, respectfully, to take that as read.

It is against that background that I suggest that Amendments 47 and 49, which seek to expand access to legal aid at inquests, run counter to that approach. There is a risk that having additional lawyers at an inquest will not provide an overall improvement for the bereaved and could have the unintended consequence of turning an inquisitorial event into a significantly more complex defensive case, which could, in the Majority of cases, prolong the distress of a bereaved family. I think it is important to recognise in this area that for every inquest such as that for Hillsborough—the Committee will appreciate that with my background I remember Hillsborough and I remember that night, as the news came in, very clearly—for every awful case like Hillsborough, there are thousands of, so to speak, normal, usual inquests up and down the country and we want to make sure that they remain inquisitorial. However, we recognise that inquests need to be a process that bereaved families can engage with properly. We have introduced a number of measures in this area; let me set out a few.

We have engaged with the Chief Coroner on training for coroners and their investigating officers; we have published new guidance on coroner services for bereaved people; we have developed a protocol which, among other things, ensures that where the state is represented, it will consider the number of lawyers instructed so as to support an inquisitorial approach; we have, building on the protocol, supported the legal services regulators—the Bar Standards Board and the Solicitors Regulation Authority—in their work to develop inquest-specific information to guide lawyers who represent at inquests. The regulators published a toolkit and competences for practitioners on 13 September last year.

Turning to legal aid and legal advice and assistance: for bereaved families who need advice and assistance, legal help is always available under the legal aid scheme, subject to a means and merits test. This can help preparation for an inquest, including help for families to decide what questions to ask.

For legal representation at an inquest, legal aid may be available under the exceptional case funding scheme, where certain criteria are met. Where those criteria are met, the Government are of the view that the process should be as straightforward as possible. I do not know whether Members of the Committee have picked this up, because it is very recent, but as of January this year there is no means test for an exceptional case funding application in relation to representation at an inquest or for legal help at an inquest where representation is granted. I appreciate that does not go as far as the Amendment, but I hope it indicates that the Government have considered this and moved in this area.

Amendment 48 seeks to remove the means test for legal help prior to an inquest hearing. I have just said that as from January there is no means test for legal representation granted under the exceptional case funding scheme. This change will also provide non-means-tested legal help in relation to an inquest for which exceptional case funding has been granted for legal representation.

I hope that Members of the Committee are aware that we have been conducting a review of the legal aid means test as a whole across civil legal aid, which has been a substantial piece of work. I cannot give a date, but I hope that the review will be published very shortly. It might not go back to the position which the noble Lord, Lord Hacking, set out, but I hope that when Members of the Committee see the review, they will be interested in it and that it will engender some broad support.

Bravo, bravo!

The noble Lord has not read it yet, but I will take the bravos in advance in case I get brickbats later. I hope it will be a piece of work which will find support. Given that ongoing work and while recognising there is a point of principle between us—I absolutely accept that—none the less, for today’s purposes, I respectfully invite the noble Baroness, Lady Chapman, not to press the amendments.

Clearly, we will not push the amendments to a vote today. It is pleasing to hear the Minister recognise the problems that we are raising, so at least we have got somewhere. Too often, Ministers say, “Well this isn’t a problem; we don’t need to fix it”. I do not think that is what the Government are saying. I am pleased that the Minister has agreed to meet Inquest; that will be very helpful. We obviously reserve our right to come back to this matter at future stages.

Amendment 47 withdrawn.

Amendments 48 to 50B not moved.

Clauses 43 to 45 agreed.