Clause 5

– in a Public Bill Committee at 11:45 am on 10th February 2009.

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Matters to be ascertained

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to move amendment 39, in clause 5, page 3, line 40, leave out subsection (2).

Photo of Frank Cook Frank Cook Labour, Stockton North

With this it will be convenient to discuss the following: amendment 112, in clause 5, page 3, line 40, after ‘necessary’, insert ‘in the interests of justice or’.

Amendment 113, in clause 5, page 4, line 1, after ‘ascertaining’, insert ‘—

(i) ’.

Amendment 114, in clause 5, page 4, line 2, at end insert—

‘(ii) whether and to what extent systematic failings were a factor in death;

(iii) whether appropriate precautions could have been taken to prevent the death;

(iv) if a person takes his or her own life, whether this was in whole or in part because the risk of their doing so was not recognised by those acting on behalf of the state;

(v) any other factor relevant to the circumstances in which the deceased came by his or her death.’.

Amendment 70, in clause 5, page 4, leave out lines 3 to 9.

Clause stand part.

Amendment 121, in schedule 4, page 129, leave out lines 27 and 28 and insert

‘the provisions laid out in sub-paragraph (1A) shall apply.

(1A) Those provisions are—

(a) the coroner may report the matter to a person who the coroner believes may have power to take such action;

(b) the coroner may make recommendations to the person referred to in sub-sub-paragraph (a);

(c) the coroner may report the matter and recommendations to the Chief Coroner, who must maintain a record of such reports and recommendations reported to him.’.

Amendment 35, in schedule 4, page 129, line 27, leave out first ‘may’ and insert ‘must’.

Amendment 48, in schedule 4, page 129, line 30, at end add—

‘(3) The senior coroner may then request the relevant person to submit, within 3 months, a full update on any action he has taken, or alternatively detail the reasons for any failure to take action.

(4) The senior coroner must at the end of each year forward all reports and updates to the Chief Coroner, who must present them to Parliament.’.

Amendment 122, in schedule 4, page 129, line 30, at end add—

‘(3) The Chief Coroner shall once a year make a report to the Lord Chancellor of the reports and recommendations made by senior coroners in the previous 12 months.’.

Amendment 93, in schedule 4, page 129, line 30, at end add—

‘7 (1) A person who fails to comply with the duty in paragraph 6(2) commits an offence.

(2) A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 5 on the standard scale.

8 (1) A senior coroner shall send to the Chief Coroner a copy of all—

(i) reports referred to in paragraph 6(1); and

(ii) responses referred to in paragraph 6(2).

(2) The Chief Coroner shall maintain a register of all the material he receives pursuant to sub-paragraph (1) and shall from time to time publish a summary of—

(i) the reports and responses referred to in sub-paragraph (1) subject to appropriate protection of confidential data; and

(ii) his analysis of the conclusions to be drawn from them with regard to reducing the risk of death.

(3) The Chief Coroner shall send copies of the reports he publishes pursuant to sub-paragraph (2) to—

(i) the Lord Chancellor; and

(ii) Parliament.’.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

This is a key clause, because it sets out the purpose of investigations. Our amendments 35 and 48, along with the Liberal Democrat amendments and the one in the name of the hon. Member for Stafford, are mainly about trying to learn lessons. They all aim to ensure that future deaths are prevented.

Amendment 39 is a legal aficionado’s point. It involves quite a complicated argument, with which I do not plan to detain the Committee for long, but we need a full explanation from the Minister. Maybe this is an opportunity for the hon. Member for Cambridge to chip in, because he was a distinguished law fellow at Cambridge university. If I had been taught by him, my law degree might have been slightly better than it was.

Clause 5(2) seeks to codify into statute the provisions of R on the application of Middleton, the HM coroner for the western district of Somerset and Avon 2004 2AC182. The Government say that 5(2) is needed to ensure compliance with ECHR article 2, which relates to the state’s responsibility to ensure that its actions do not cause the death of citizens. The Bill—I find this surprising—does not define the precise circumstances when a coroner should conduct an article 2 investigation. I listened carefully to what AndrÃ(c) Rebello had to say to the Committee in the evidence-gathering session:

“I have concerns regarding matters to be ascertained at an inquest in clause 5, because the draftsman has taken the words of Lord Bingham in the Middleton case and enshrined them in clause 5(2)...It is far better to leave clause 5 as ‘how’, where how means in some inquests ‘by what means’ and in other inquests ‘by what means and in what circumstances’”, which is, of course, what article 2 would lay down. He takes the view that

“It would be far better to leave out clause 5(2), so that ‘how’ means whatever the common law says it means for the time being. If we are now reforming the 1887 legislation, I am fairly sure that in 2051 the law will have developed somewhat, and I do not think it right to tie the hands of the European Court and the House of Lords with regard to developments.”——[Official Report, Coroners and Justice Public Bill Committee, 3 February 2009; c. 56, Q119.]

I had a word with Mr. Rebello afterwards, and I have looked at the judgment that he quoted. I have also spoken to learned sources, who take the view that the Government should explain why they feel that AndrÃ(c) Rebello is wrong and that subsection (2) should remain in the Bill.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

Before my hon. Friend sits down, will he reflect on whether subsection (2) would require a senior coroner to take a view as to the applicability or otherwise of the convention rights before any investigation has  taken place? That would require, with the greatest respect, a degree of legal expertise and interpretation, which might give rise to further litigation on whether those convention rights had been so considered.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

That would be a lawyer’s dream. There would be cases going on appeal and possibly all the way to the House of Lords time and time again. I hope that the Minister can explain to the Committee, possibly in layman’s language, why it is necessary to keep that subsection.

I come now to the nub of the clause and the crux of amendments 35 and 48, which relate to paragraph 6 of schedule 4 on page 129 on

“Action to prevent other deaths”.

Paragraph 6(1) states:

“the coroner may report the matter to a person who the coroner believes may have power to take such action.”

We suggest that rather than “may”, the coroner “must” make that report. There should be a statutory duty on the coroner.

My hon. Friends and I have put a lot of work into drafting amendment 48, which is the key amendment. It would add to paragraph 6:

“(3) The senior coroner may then request the relevant person to submit, within 3 months, a full update on any action he has taken, or alternatively detail the reasons for any failure to take action.

(4) The senior coroner must at the end of each year forward all reports and updates to the Chief Coroner, who must present them to Parliament.”

That may not be brilliantly drafted, but it makes the point loud and clear. When there is a tragic death, lessons must be learned.

We have all come across constituency cases where families have lost loved ones. In the past few years, there have been two appalling fatal accidents in my constituency. Very near the county boundary between Norfolk and Cambridgeshire there is a junction where a small road called Broad End road crosses the A47. Of course, the families involved realise that nothing can be done to bring their loved ones back. One case involved a young lad on a motor cycle who was minding his own business on the main road and a van pulled out at what is a notoriously dangerous junction.

On a more recent occasion, four youngsters in a car navigated from the minor road on to the major road, trying to cut across it—it was night, it was raining and the traffic was moving at high speed. I think that the girl driving the car had only been driving for a number of months. There was a car travelling at very high speed—way in excess of the speed limit—and although that junction has broken white lines, they are not double white lines, so cars can legally overtake on the junction. It was a tragic accident. The family realise that nothing can bring their loved ones back, but they want closure above all else. In that case, they felt that the driver of the other vehicle should have been prosecuted for causing death by dangerous driving—the matter is ongoing, and I will not comment further because it is a sensitive issue.

The family also want lessons to be learned. They take the view—they feel very strongly indeed—that in the case of the Highways Agency, the coroner should have a  duty to report to the relevant person. There should then be a duty on that authority—be it the Highways Agency, the Health and Safety Executive, the Department of Transport, the Ministry of Defence or any number of different Government bodies—to report back on what improvements could be made.

I am concerned that the Bill as drafted does not go far enough. Let us consider what various organisations have said to us. I refer again to our friend AndrÃ(c) Rebello. In his evidence to the Committee, he talked about the rule 43 provision. We all know about rule 43. He said that the Bill as it stands is inadequate—he was referring to the relevant schedule—and that there are no sanctions for failing to respond. That is very poor, given that learning lessons is one of the most important parts of coronial jurisdiction. He certainly feels strongly that we can learn quite a lot from what happens overseas. For example, in Canada and in Victoria, which he mentioned—

Mr. Kidneyrose—

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice) 12:00 pm, 10th February 2009

I will give way to the hon. Gentleman as he has tabled a similar amendment. Hopefully between us, we will be able to make some progress, perhaps even by voting on one of the amendments.

Photo of David Kidney David Kidney Labour, Stafford

Does the hon. Gentleman agree that his amendments do not include the sanction that Mr. Rebello pointed out is not in the Bill? What does he think would be the best sanction?

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

We do not include a sanction, but our amendment includes a statutory duty. Legal action could then result from that. I am tempted by the hon. Gentleman’s suggestion that a firmer sanction should be laid down in the statute. There should be a statutory duty on the coroner to report at the end of each year to the chief coroner, who would then present a report to Parliament. It is vital that the knowledge gleaned from those inquests does not go to waste.

Liberty is another organisation that has briefed us at some length. It talks about schedule 4 and says that

“A senior coroner who believes that action should be taken to prevent the reoccurrence of fatalities may report the matter to the relevant authorities.”

Our amendment would replace the word “may” with “must”. Liberty goes on:

“There is no responsibility to report findings, and there are no guidelines on cases where recommendations should be made. Furthermore, coroners have no power to ensure their recommendations are implemented, and there are no duties on the part of other agencies to respond or institute changes.

In the past coroners have been found to be making identical findings and recommendations which were not implemented.”

Anyone who has been following the coronial system over the past few years will know that to be the case. Liberty goes on:

“The previous draft Coroners Bill gave a nod towards this problem with provision made for the Chief Coroner to report to Parliament so that contentious issues could be scrutinised.”

I submit that our amendment takes care of that, although not with quite the same wording as the draft Bill. What we are saying in our amendment is that the senior coroner must, at the end of the year, forward all reports  and updates to the chief coroner, who must then present them to Parliament. There would be an annual report from him and he would be able to identify the different types of lessons that can be learned from a multiplicity of types of deaths—for example, on the road, drowning or other accidents that take place and result in tragic deaths.

If one considers what happens elsewhere—for example, in New South Wales— recommendations are an integral part of the inquest process and are logged in a detailed document at the end of the inquest. The document is then available to the public and is tabled in Parliament. Doing so obviously exerts substantial political pressure on the Government to take action. In Ontario, for example, the inquest jury gives a verdict and makes recommendations, which are published centrally and sent to all the parties involved. Implementation is monitored annually by a department of the chief coroner’s office. Although our amendment does not go as far as the provisions in Victoria, New South Wales or Ontario, it is a sensible move in the right direction. It would put a statutory duty on the coroner to make those reports. It would put the duty on the person involved—the Government agency, the Department or whatever it might be—to respond. That would mean that the report came through to Parliament.

As the Bill stands, there is nothing that will enable that to happen. My concern is that lessons will not be learned. I shall conclude with another example from my constituency. Norfolk is well known for its long sandy beaches, but the tides can be fairly perilous. On a beach at Brancaster, drownings have resulted from youngsters taking a risk and going out to different sand banks. One particular sand bank has an appealing shipwreck on it. A tragic case of drowning took place during the time that my predecessor George Turner was MP for North-West Norfolk. He raised the matter in Parliament and was determined that lessons should be learned. Of course, there was an inquest and the coroner made various recommendations, but that is where it ended. I do not believe that any of the key authorities—whether it was the Crown Estate, Natural England, the National Trust or the parish council—were given any proper advice about how to prevent drownings in future. Perhaps advice could have been given on signage, how to work with other parish councils or how to look at best practice elsewhere in the country.

Mercifully, that tragedy has not been repeated, but the lessons that could and should have been learned from that incident were not properly learned or processed in a way that reassured the family. Above all, the family want closure and for lessons to be learned to prevent future deaths. Let us improve the Bill so that that can be achieved.

Photo of David Kidney David Kidney Labour, Stafford

It is a pleasure, Mr. Cook, to serve on the Committee under your fair and firm leadership. Clause 5 is subject to paragraph 6 of schedule 4. As the hon. Member for North-West Norfolk said, where a coroner conducts an inquest and feels that lessons could be learned from a particular death under investigation that, if applied more generally, could reduce the risk of deaths in the future, further action should follow. My amendment is in part to make sure that further action does follow, so that we can reduce the risk of death in future cases. I am sure that the public would want us to do so.

Amendment 93 is my own work and I have had no outside help, so I instantly accept that there are probably flaws in the drafting. There are two points to my amendment. I intervened on the hon. Gentleman in relation to the first point, which is the question of sanctions. Since S.I. 2008/1652 was introduced by the Under-Secretary of State for Justice, my hon. Friend the Member for Lewisham, East last year, there has been a duty on people who receive a report from a coroner to say something in response, but so what?

What if people do not respond to the coroner’s report—and some people are not responding to it at present? In theory, if the Bill became law, the chief coroner could go to the High Court and seek an injunction to make someone comply with the duty and give an answer. Having spent thousands of pounds of taxpayers’ money, the chief coroner could get the answer, “Thank you, we have received the report, we are going to do nothing about it.” We need to make people sit up and take notice, so my proposal is that it should be a criminal offence not to respond to the coroner’s report. That might sound a bit harsh, but it would get people’s attention and mean that in most cases we would get a response. That does not go as far as the Liberty proposal, for example, and make people carry out the coroner’s recommendations, but we should hear the other side’s response before we conclude what more should be done. It is important to have their attention and to make them respond.

My amendment is inadequate in that it does not specify who the criminal is if the offence is proved. If the criminal were a hospital trust or a multinational corporation, who would be convicted? I have not dealt with that detail. That is something that I would have to rely on the Minister, with her hoards of civil servants, to take care of, if she agreed with the principle of it being a criminal offence.

One alternative, of course, would be to go down the route of a civil penalty and say that someone who does not respond could have a civil penalty imposed on them. That may be the more modern and progressive way. It would perhaps not have the negative implication of someone ending up with a criminal record. However, it would open up further questions about who would impose the civil penalty. I find it difficult to envisage that the chief coroner would welcome such a role.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

By way of a helpful suggestion, has the hon. Gentleman even considered the possibility that the coroner’s court, or the coroner, might be able to hold the person in contempt for not responding?

Photo of David Kidney David Kidney Labour, Stafford

That is a helpful point. I like the idea of the coroner summoning someone to court to explain why they did not respond and to make them give their answer in the court. Such inconvenience might get their attention too, so there are many ways to do it. The point is that the Bill, as drafted, has no sanction at all. I would like the Minister to take account of the many people who have said that it should.

On the issue of reporting, it is important that the public, decision makers and policy makers understand the trends behind the facts that coroners are unearthing. It is vital that Parliament sees the results of the coroner’s recommendations, the person’s responses and any analysis  of trends that the chief coroner is able to give. It is vital that Parliament has a report from the chief coroner that shows that to us. It may be that an annual report is too restrictive, because if something is urgent and action is urgently required, it would be reasonable for the chief coroner to alert Parliament to a particular set of circumstances, or a particular trend, in a short space of time. The chief coroner should not have to wait for an annual report in order to alert us to it.

In the draft coroners Bill, in clause 59, there was a provision for the chief coroner to deliver an annual report to the Lord Chancellor and an obligation on the Lord Chancellor to lay that report before Parliament. It is disappointing to see no reference to that provision in the Bill. The House of Commons Library, in its research paper 09/07, says that it is the Government’s intention

“that this would be dealt with in regulations under clause 33(3)(d)”.

That is drawn in the most general of terms and does not specifically cover this point.

If the Minister is happy to leave it to statutory instruments to require the chief coroner to give the Minister a report, that is fine—the Minister can have that option. However, I represent Parliament and the people, and Parliament wants its report on the face of the Act, whether or not the Minister makes statutory regulations requiring that a report be made to the Minister.

The last line of my amendment says that the chief coroner must give the report to Parliament. That is particularly important. Even if the Minister does not want primary legislation to receive the report herself, can she bear it in mind that Parliament wants it?

Photo of Jennifer Willott Jennifer Willott Shadow Secretary of State, Shadow Chancellor of the Duchy of Lancaster

Somewhat worryingly, I agree with almost every word that the hon. Gentleman has just said. I also agree with almost everything that the hon. Member for North-West Norfolk said. There are clearly issues here which have broad support on both sides of the Committee. Particularly with regard to the group of amendments relating to reports by coroners, there is a strong view on both sides of the Committee that, at the moment, what is in the Bill does not go far enough. We all have different ways of suggesting how it could be changed, but there is a strong view that the provision needs to be beefed up in some way and strengthened.

First, I want to return to the issue of narrative verdicts. The reference in clause 5(2) that enables juries and coroners, when looking into article 2 deaths, to make a narrative verdict is welcome, but it does not go far enough. We have had a lot of evidence from witnesses last week, and I am sure that members of this Committee have spoken to constituents who have been affected. There is a general desire for a lot more flexibility—more than the Bill currently provides—to be built into the system.

Narrative verdicts—when a jury or coroner expand on the information that is provided—can be incredibly valuable both for the family of the victim, and also for those who have an interest in the case. They help in genuinely understanding what happened, why and what the circumstances were. The hon. Member for Bridgend  has raised the issue of psychological inquests. In some ways, it is a similar idea that a broader amount of information should be provided and that, following an inquest, there should be flexibility for that information to come out and be published, so that the first level of lessons being learned can start to take place.

It is clear with article 2 deaths that there is a requirement for the Government to allow, where necessary, broader narrative verdicts. That relates to, for example, whether there are systematic failings that were a factor in the death or, in the case of a suicide that takes place in the hands of the state, if that happened because the danger was not recognised by authorities. There are a number of other cases, and although they were not in the hands of the state, there may have been circumstances and incidents in the past that should have been identified. That could be where somebody was at a particularly high risk of suicide and it did not get picked up, or where somebody has died in such a way that significant lessons could be learned. Given that, we are proposing in amendments 112 to 114 to enable juries and coroners to provide a narrative verdict where they feel that there is a need to or that they want to. That is not a requirement—it is making additional flexibility and giving juries and coroners the ability to do that.

That goes hand in hand with amendment 70 which deletes lines 3 to 9 on page 4. It is, in our view, an unprecedented gagging order, which basically restricts juries from expressing views or explaining the circumstances of a death beyond the bald facts laid out in paragraphs (a) to (c). I believe that it is not justifiable to gag a jury or a coroner. By definition, jury inquests consider the matters most relevant to wider public interest, because of the type of deaths where jury inquests are initiated. I feel that clause 5(3) interferes with the ability of juries to undertake what should be considered as their function and duty, sitting in coroners’ courts. Removing it would enable narrative verdicts to be introduced, when the jury feels that it is necessary.

I want to highlight that we intend to press amendment 114 to a Division, because it is an area that we feel strongly about. We have had a lot of evidence that narrative verdicts can offer significant benefits, and we would like to flag up to the Government that the Bill is too restrictive. We would like to enable coroners and juries to make their own decision about whether to expand on a verdict, when they feel that that is necessary.

On the issue of the senior coroners’ reports, which has already been discussed at length, there is a clear need to identify patterns of problems and systemic failings. There are strong views on both sides of the Committee that that is an issue that needs to be beefed up. As I commented on an earlier clause, given that there is no national coroner service, there is an even greater need to ensure that there are measures in the Bill for recommendations and reports to be centralised in either a database or some sort of system, so that patterns can be identified. Our proposal is that senior coroners’ reports would include recommendations that would be sent to the chief coroner, who would maintain it centrally, and it would be reported to the Lord Chancellor annually. The hon. Members for Stafford and for North West Norfolk have advanced other proposals, all of which attempt to achieve the same end, and we are happy to support whatever measure achieves the ultimate goal.

On the point made by the hon. Member for Stafford, since bodies are supposed to respond to coroners’ reports, we should—if that is done fully—be able to start gathering a full picture and identify where there are problematic patterns of behaviour and broad health and safety breaches that are repeated across the country. There has been a problem—I am sure that all hon. Members agree with this—with the implementation of some recommendations made in previous public inquiries, where there was no proper monitoring to ensure that they were implemented. We have fantastic public inquiries that come up with strong recommendations, which are then not implemented, and there is very little monitoring of what happens. The amendments would ensure that that would not happen in coroners’ courts, and nobody could get away with not noticing that something had not happened. Recommendations would be gathered centrally, and the chief coroner would have to report to either the Lord Chancellor or Parliament, so that there would be better accountability and transparency of what is happening to the reports and the responses on the recommendations that have been raised.

From my experience of talking to and dealing with coroners, I know that they are extremely experienced and are very good at spotting patterns, consistent problems and systematic failings. At the moment, we are not taking advantage of their expertise and knowledge. The amendments—whichever ones the Government may like to make—would enable that knowledge and expertise to be better utilised and the recommendations to be better implemented and monitored. That would enable Parliament and the Government to have a much better understanding of the lessons that need to be learned and to be able to see which public bodies are not implementing the recommendations. I hope that the Government will take into account the views that have been expressed on both sides of the Committee, and we will press amendment 114 to a vote.

Photo of Tim Boswell Tim Boswell Conservative, Daventry 12:15 pm, 10th February 2009

I have little to add to the debate except warm assent to almost all the points that have been made on both sides of the Committee. On the utility—or otherwise—of an inquest, the self-evident point that sometimes needs to be gently put into the minds of bereaved people is that whatever process we have, it will not reverse the process of death. The rather more general point is that the inquest may either be unable to reach a firm conclusion or reach one where perhaps there are no villains and nothing can be generalised from the particular proceedings. However, I think that the concern of all members of the Committee who have spoken is that if a pattern is building up, it should be the subject of a report. There should be a system that eventually produces at least an opportunity to capture the attention of Parliament.

As I have mentioned at least once in these deliberations, I have had a fairly long association with the British Lung Foundation and have taken an interest in mesothelioma. Much of this debate is about good practice. We will not really, in debating legislation, be able to introduce the requirements for good practice, except that I hope that the Minister has noted them.

The British Lung Foundation identified a particular issue in one of its inquiries. Two years ago, in February 2007, it published a report called “An unnatural death”. One of the striking things about it was that it highlighted  the lack of consistent practice among coroners in responding to deaths from mesothelioma. There is a variety of circumstances, but the point that is germane to this debate is that there needs to be some consistency of reporting, so that the nature of what is happening is clearly available to the chief coroner and to the decision makers.

I happen to know that the Department for Work and Pensions has an elaborate model and a database relating to all mesothelioma deaths and is able to predict the likely pattern of mortality over perhaps the next 40 or 50 years. If that were to be questioned by what was happening at inquests, and if the coroners’ accounts were sufficiently coherent to build up a pattern of a change in the epidemiology, it would be a matter of public interest.

Clearly, if we can use these narrative judgments or reports in the widest possible context, we can draw the attention of people in government or in public life to a variety of circumstances in which things might be better in the future, but one needs the facts to do that, so one needs a certain coherence in reporting. One needs a readiness to report and then, as the hon. Member for Stafford, among others, has said so clearly, an ability to respond on the part of the various interested persons for whom that report was made. The world is littered with White Papers and good intentions, none of which has ever been acted on because we have moved on to the next thing. I would take the process a stage further back and say that we need consistency and coherence in reporting.

The only other point that I shall add, which again is more a matter of administration than legislation, is that the chief coroner needs to be very alert. The chief coroner possibly needs a chief information officer to complement his activities and to look at the pattern of information as it comes in, to be able to analyse and cross-analyse it and to draw people’s attention to what is developing. Let me give an example. It is often easier to say that cars are all the same these days, but there might be a particular pattern of failure in a particular marque. Perhaps some component is wrong, or it might be brake failure or whatever—something more than one would normally expect by the nature of the accident. That should be flagged up and then someone should do something about it. I think that there is a common will on both sides of the Committee—I certainly wish to include the Minister in this, in anticipation of her remarks—to do something about that, but we should set up the best possible arrangements.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

It is difficult to rise to speak in this Committee when one is not a lawyer and one is surrounded by so many lawyers who speak so wisely and graphically about their involvement with the law. My background is much more with individuals and their personal experience of life. That is what I draw on when I consider the discussion that we have had today.

When I talk to families who have experienced inquests, I find that part of what they looked for from the inquest is some resolution to their grief. They look for answers and explanations as to “why”. It has been suggested that narrative verdicts are a particularly helpful way of providing that, in that they give a longer discussion and explanation of what may have occurred. Equally, narrative verdicts have caused distress—as have open verdicts—to  families that were distressed by things that were said and placed in the public domain without a full understanding of the individual, their life and their background.

I urge caution on seeing open and narrative verdicts as potentially useful ways forward. They also have risks in terms of suicide data collection, because in the case of narrative verdicts, they are not recorded as suicide and in the case of an open verdict it is down to a clerk in the Office for National Statistics to trawl through the information and decide whether it was a death by suicide. We have some problems there. I heartily concur with the suggestion that someone must be held to account and that where we can identify patterns of information and patterns of failure, someone clearly needs to be responsible for taking action. Bridgend was identified as a centre where there had been a cluster of suicides. In fact, Bridgend did not have the highest number of suicides across Wales—it was quite low down. What we had was a huge problem building up across Wales that was not being identified.

I also urge caution regarding the suggestion that the report must always come to Parliament. With devolved Administrations, health and transport are devolved issues. If the area of problematic behaviour or failure that needs to be identified is not within the purview of Parliament but within that of a devolved Administration, such as the Welsh Assembly, there may well be difficulties if the report comes only to Parliament, and we need to take that into account.

While I am on my feet, I must quickly mention the charter for the bereaved, which is extremely welcome. Families have told me that the judicial atmosphere of the coroner’s court—we have heard the description of the court based in central Cardiff—is horrendous. Imagine going there within six months, eight months or a year of the death of a close family member and having to face the welcome of a desk sergeant who tells one where to go, a judicial atmosphere, a sense of stigma and almost a sense of guilt. Families have talked to me about an invasion of privacy. Because of the need to pull together social and personal information, there is a feeling that there is almost a desire to find the dysfunctional nature of a family or individual, which can be particularly distressing in the full glare of media coverage.

I particularly welcome clause 5(3):

“Neither the senior coroner conducting an investigation under this Part into a person’s death nor the jury (if there is one) may express any opinion”.

Certainly, families have expressed concern about the following difference in procedure, and I would welcome a comment from the Minister. A coroner can express an opinion—and, indeed, hold a press conference in which to give an opinion—whereas a judge hearing a court case cannot do that. If, as my understanding is, that provision would preclude a coroner from doing that, families who have spoken to me would welcome it.

Briefly, on delayed inquests, particularly when there has been a tragic death, we must be mindful of intruding into the grieving process and of the fact that, for some families, the process is delayed and damaged by the need to return to court—sometimes, two or three years  later—to hear graphic details of their family member’s death. There must be greater awareness of the damage that we can do to individuals through delayed inquests. The charter is an opportunity to help and prepare families prior to the inquest, and an opportunity to give them guidance and support through it, which is something that we must all welcome.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice 12:30 pm, 10th February 2009

May I comment briefly on amendment 70? It addresses the principle of the matter, which is the restriction—the muzzling—of the jury. As the hon. Member for Bridgend has said, in some circumstances a jury’s extended account of the circumstances in which the death came about, or further information about how such deaths might be prevented in the future, might not always help. However, the question is whether the jury should be told that it should never be allowed to do anything of that sort. The hon. Lady shakes her head, and I think that she agrees that the jury should have that power, as should the coroner in cases without a jury. That is the principle of the debate about clause 5. I shall ask for a vote on amendment 70, so if my hon. Friend the Member for Cardiff, Central would be so kind as to withdraw her request for a vote on amendment 114, it would help, because amendment 70 is far more the matter of principle.

The hon. Member for North-West Norfolk mentioned amendment 39, the meaning of subsection (2) and the question raised by Mr. Rebello at our evidence sessions. Mr. Rebello is wrong, however. The Bill makes sense, although it is rather mean. It tries to provide for minimal compliance with human rights standards for the time being. Mr. Rebello read subsection (2) as meaning that when the Bill was passed, we would somehow decide the human rights requirements for an article 2 hearing—we would fix them—and tell coroners’ courts what they must do. He felt that that would be a rigid way of doing it, and that it would not necessarily comply with human rights law. But that is not what the provision in subsection (2) means. It means that a coroner conducting an investigation must apply human rights law as it stands, so there is no list of human rights requirements that is drawn up once and for all. The subsection also applies to every investigation, so a coroner making an investigation must ask himself whether the restrictions in subsection (1) would violate the human rights standards for the time being. If they would, the coroner would have to apply subsection (2) and go beyond it to ask in what circumstances the death occurred, which is the broader requirement in the Middleton case.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

May I use the hon. Gentleman’s comments as an opportunity to ask the Minister whether any training on the human rights convention and standards is envisaged for coroners? It is a complex field, and it may not be within their normal purview of activity.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

That is an interesting question. I suspect that coroners, like all members of the judiciary, receive human rights training already. Magistrates certainly do, so I would be surprised if coroners did not. All public officials are bound by the Human Rights Act. Mr. Rebello’s criticism of clause 5(2)—that it is inflexible—is incorrect. If there is a criticism, it is that it is minimalist. Instead of admitting the general principle that the broader circumstances of a death should be investigated,  at least where the state is involved, but possibly in other cases as well, clause 5(2) effectively states, rather mean-spiritedly, “Well, if not going further would violate human rights, go further, but otherwise just stick to clause 5(1).” That is the criticism, not the argument that Mr. Rebello stated in the evidence session and that the hon. Member for North-West Norfolk repeated just now.

Photo of Frank Cook Frank Cook Labour, Stockton North

May I ask the hon. Gentleman to resolve the differences with his colleague while the Minister is responding to the debate? In any case, any amendments requiring a Division will need to be moved formally, at which point a decision can be made.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I shall attempt to respond in some detail and explain what clause 5 is about. In so doing, I hope that I can give some succour to some of the amendments, although not all of them.

Clause 5 outlines the matters that a coroner is legally obliged to ascertain during the course of the investigation. It does not prescribe what opinions he may express as a result of that investigation. People might have that impression because they are focusing too narrowly on clause 5 and not taking it in conjunction with clause 10 and paragraph 6 of schedule 4. In that context, it can be seen that coroners may make such comments at the end of their investigations. However, the purpose of a coroner’s investigation is not to apportion blame, but to ascertain fact. Any inquest forming part of an investigation is inquisitorial and collaborative; it does not seek to apportion blame or to establish legal liability.

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

Clause 10 puts in place yet another restriction on what the coroner or jury can say. Clause 10(2) states that whatever is said cannot

“be framed in such a way as to appear to determine any question of...criminal...or...civil liability.”

The clause seems to be restrictive, rather than expansive.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I just said that the purpose of a coroner’s investigation is not to establish criminal liability, but fact, so I do not think that I am being inconsistent.

Amendment 39 relates to article 2 of the European convention on human rights and the Human Rights Act 1998. The hon. Member for Cambridge is right that there was a misunderstanding among some coroners giving evidence to the Committee. Subsection (2) provides the necessary flexibility to take into account future judgments changing or extending the circumstances in which convention rights apply. Coroners are already being trained in the application of the convention and being kept up to date with case law and so on. Also, regulations will be made dealing with training, which we can discuss under clause 28.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

To state the obvious, has the Minister not noticed that the fact that the senior coroner giving evidence to this Committee, who presumably is as skilled as, if not more skilled than, many of his colleagues, has difficulties interpreting the clause suggests that more attention needs to be paid to training and information than has hitherto been the case?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice 12:45 pm, 10th February 2009

I accept the hon. Gentleman’s comments. Perhaps some revision and homework may need to be done in order to ensure that coroners fully understand what article 2 and the convention are about.

By their very nature, article 2 inquests probably need to be more wide-ranging than ordinary inquests. There are between 200 and 300 inquests that involve article 2, which is about 1 per cent. of all inquests that are heard each year. Such inquests are expected to address matters relating to the broad circumstances surrounding the death, rather than merely the “who, where, when and how” that would be required in the course of a normal inquest. If we were to remove clause 5(2), that would leave the Bill lacking in clarity as to what is required in article 2 inquests over and above what is normally required. Also, by removing clause 5(2), we would be ignoring existing case law. I hope that the hon. Member for North-West Norfolk withdraws that particular amendment.

Amendment 70 would remove from the face of the Bill the obligation not to express an opinion with respect to the matters to be ascertained under subsections (1) and (2). That obligation is there because those matters are matters of fact. There should be no room for additional opinion in determining those matters. Additionally, coroners should probably not be giving press conferences to discuss individual cases. They may, of course, talk about policy in general, but it is usually bad practice to be having press conferences about individual cases, regardless of the circumstances of those cases.

Subsection (3) contains the proviso that it is

“subject to paragraph 6 of Schedule 4.”

That means that coroners can make reports regarding the action to be taken to prevent future deaths, which is similar to reports that are currently under rule 43. That gives the coroner sufficient scope to make detailed reports on things that they think should be brought to the attention of those who have the power to take action to prevent further deaths.

There is also scope within the associated rules under clause 34 for narrative verdicts, for which the hon. Member for Cardiff, Central made an eloquent plea. However, my hon. Friend the Member for Bridgend gave an equally eloquent response on why such verdicts might not be particularly helpful to bereaved families. Given that the central aim that we are looking to achieve here is to make sure that the grieved families get the best possible service, it is a difficult area, because in some instances a narrative verdict can cause further distress. However, I accept that phrases such as “death by misadventure” do not really tell anyone very much about exactly what happened. Therefore, we have to give coroners some flexibility to express exactly what happened in a more rounded fashion than short versions such as “death by misadventure” or even “death by suicide”.

Not surprisingly, amendments 112 to 114 take the coroner further down the road of expressing an opinion, possibly even attributing blame and assigning civil or criminal liability. That is not the purpose of a coronial investigation.

Photo of Jennifer Willott Jennifer Willott Shadow Secretary of State, Shadow Chancellor of the Duchy of Lancaster

Does the Minister accept that the amendments would not do that, because such matters would still be subject to clause 10? Clause 10(2) makes it  clear that the coroner cannot determine criminal or civil liability. Therefore the coroner or the jury will be able to provide more detail, but not to accord blame.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Amendments 112 to 114 would tempt a coroner down that route. That is a problem with those amendments. However, a coroner can properly give their views in any report to prevent further deaths, which is an important part of what they do. That point is covered in paragraph 6 of schedule 4. The changes made last year under rule 43 gave coroners much wider discretion to make whatever comments they think are necessary to ensure that improvements are made as a result of their investigations.

Amendment 35 would introduce a duty to report to the relevant person, whereas it is currently discretionary. I see some merit in that point and will reflect on it. Amendment 48 would give the coroner the power to request that the relevant person submit an update on their actions within three months. It would also introduce a duty on the coroner to forward all updates to the chief coroner at the end of each year, who would lay them before Parliament. There is merit in that, and I will reflect further on it.

The same point applies to amendments 121 and 122 and the last part of amendment 93, which was tabled by my hon. Friend the Member for Stafford. The public expression of coroners’ findings is important in ensuring that deaths do not occur as a result of nobody taking cognisance of what a coroner has found. Those amendments would strengthen the obligations on coroners and on the relevant persons to prevent future deaths.

I will give an example of something that happened under rule 43 and the current discretionary system. A coroner issued a rule 43 report into a death from injuries incurred on a railway line. He asked for a response to ensure that the issues found in the investigation did not recur. British Transport police responded and outlined the action that it had taken in relation to the circumstances of the case. It also listed a further six actions that it had taken over an 18-month period to improve its investigations of deaths on railways. It was keen to keep in touch with coroners to improve investigative processes. Even under the rule 43 system, we are seeing improvements in how people respond to causes of death reported by coroners.

I understand the reasoning behind the amendments that I have mentioned. They would not only ensure that coroners and organisations take seriously the responsibility of preventing further deaths, but would give the public confidence that that is the case. In this area, as in many others, people express the view that the hon. Member for Daventry gave: they understand that they cannot bring their own loved one back, but they do not want to see the same thing happen to someone else. If they can see that the response is taken seriously, it helps them to obtain closure and get through the bereavement process.

I will reflect further on the amendments that I have outlined, including the last part of amendment 93 tabled by my hon. Friend the Member for Stafford. I cannot commend the idea of the criminal sanction at this stage. I am not yet convinced that even the threat of a level 5 fine would be a sufficient deterrent. However, the indication  from the changes in rule 43 show that organisations and the relevant authorities are beginning to take their responses seriously.

Photo of David Kidney David Kidney Labour, Stafford

After listening to the debate, does my hon. Friend like the idea that the coroner could summon someone to court, if they did not answer the report?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Yes, I do, but I am not sure whether it can be put into the Bill and will have to consider the matter. Coroners need to be given all possible tools to ensure that their investigations are thorough and can reach a proper conclusion. That is something that we might consider further. On that basis, I ask the hon. Member for North-West Norfolk to withdraw the amendment and the hon. Members for Cardiff, Central and for Cambridge to decide which ones they wish to vote on.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I am mindful of the time. I am grateful to the Minister for her explanation of the ECHR and the Human Rights Act 1998. Obviously, the Opposition will have to return to AndrÃ(c) Rebello and take further advice on that. In the meantime, I am happy to withdraw the amendment.

I am delighted by what the Minister said about amendments 35 and 48. We are certainly not trying to pretend that amendment 48 is absolutely the best way to achieve those ends. If she can pick out the best of the Liberal Democrats’ amendment 121 and of amendment 93, tabled by the hon. Member for Stafford, the Committee will achieve exactly what it wants to achieve, which is to ensure that lessons are learned. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 70, in clause 5, page 4, leave out lines 3 to 9.—(David Howarth.)

Question put, That the amendment be made.

The Committee divided: Ayes 6, Noes 9.

Question accordingly negatived.

Clause 5 accordingly ordered to stand part of the Bill.