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Clause 6

– in a Public Bill Committee on 10th February 2009.

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Duty to hold inquest

Amendment moved (this day): 103, in clause 6, page 4, line 14, at end insert—

‘(2) Subject to subsection (1), the senior coroner responsible for the inquest must notify any interested person as soon as practicable that they are entitled to be assisted at all times by a legal representative.

(2B) Any legal representation shall be fully funded by the Legal Services Commission.’.—(Mr. Boswell.)

Photo of Roger Gale Roger Gale Conservative, North Thanet 4:00 pm, 10th February 2009

I remind the Committee that with this we are discussing the following:

Amendment 98, in clause 7, page 4, line 37, at end add—

‘(5) In all cases where a jury is required for the purposes of an inquest, any interested person will be entitled to legal representation at the inquest, funded by the Legal Services Commission.’.

Amendment 102, in schedule 4, page 129, line 28, at end insert—

‘(1A) Where the senior coroner considers that a report under this paragraph is likely to result from the inquest, the family of the deceased shall be entitled to legal representation funded by the Legal Services Commission.’.

Amendment 99, in clause 30, page 16, line 21, at end insert—

‘(k) a decision not to allow legal representation funded by the Legal Services Commission to assist anyone falling within section 36(2)(a).’.

Amendment 101, in clause 36, page 20, line 18, at end insert—

‘(aa) a legal professional, if one has been appointed for the purposes of assisting the family;’.

New clause 11—Community Legal Service—

‘(1) The Access to Justice Act 1999 (c. 22) is amended as follows.

(2) In Schedule 2, paragraph 2(1), after sub-sub-paragraph (e) insert—

“(ea) any coroner’s court”.’.

New clause 12—Legal representation of bereaved families—

‘Where—

(a) the inquest is to be held with a jury; or

(b) the deceased died whilst in custody or otherwise detained by the state; or

(c) the deceased died at a centre for provision of medical treatment, and the coroner has a duty to investigate the death under section 7(2); or

(d) any other parties participating in the inquest are assisted by a legal professional, legal representation for bereaved families shall be funded by the Legal Services Commission.’.

New clause 13—Legal representation of bereaved families (No. 2)—

‘Means testing shall be waived for legal representation of bereaved families if—

(a) the inquest is to be held with a jury; or

(b) the deceased died whilst in custody or otherwise detained by the state; or

(c) the deceased died at a centre of provision for medical treatment; or

(d) the deceased died whilst serving in the armed forces; and

(e) any other parties participating in the inquest are assisted by a legal professional.’.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I have merely introduced formally the amendments in this group standing in my name and that of my hon. Friend the Member for North Wiltshire. The Committee is owed both an explanation from me and an apology from him for his absence this afternoon. He is visiting forces in Afghanistan, which seems an entirely acceptable excuse—and possibly the only acceptable one—for his absence. I regret his absence. Although it is right that he and my hon. Friends should take an interest in the difficulties and realities that our services face in the region, he has a degree of expertise in this area in relation to military inquests. RAF Lyneham is in his constituency, so he has been closely involved with the Wiltshire coroner, as my right hon. Friend the Member for Witney (Mr. Cameron) has with the Oxfordshire coroner because of RAF Brize Norton. That is an accident of geography and service organisation, which probably had never been anticipated as the coronial system grew up, but it is a sad reality now.

Perhaps, by way of striking a consensual note at the beginning, I can say to the Minister, repeating what I said this morning, that I appreciate her efforts to report to the House on the development of the new defence inquest arrangements. It is a great improvement and has helped both the process and the inquiries. The purpose of the amendments is to make a counterpart disposition in relation to the families further to assist the process.

Let me now touch on the particular amendments at stake. I am sure that the acute textual critique of the Minister—and possibly of the hon. Member for Cambridge—will note some very slight differences between them, and potential contingent arrangements for fall-back positions if she found to my great surprise that she was unable to accept the full Monty at stage one. While the amendments are not absolutely perfect either in drafting or in inter-operation, they amount to a substantial package that would greatly assist families and also the inquiries, which we are busy on this afternoon.

The hon. Member for Stafford was particularly helpful when he responded to my intervention this morning. His new clause 11 is part of this group but it is not in my  name. I have no particular difficulty with it—at least, not before he presents the case. We look forward to his comments at a later stage.

Let me go through my shopping list. Amendment 103, which is the lead amendment but not the substantive one, states that the coroner should make available information to the families. Amendment 98 relates to the provision of legal aid to families where a jury is empanelled. Amendment 102 makes the same provision in relation to cases in which the coroner wishes to make a report along the lines we were discussing this morning. Amendment 99 deals with cases in which there is to be—or may be—an appeal against the coronial judgment. Amendment 101 defines legal advisers to families as being interested persons for the purpose of the clause.

We then come to new clauses 12 and 13 and the hon. Member for Stafford’s new clause 11. My new clauses would make a general provision for the availability of legal aid to families in these types of inquest. As a modification variant on that—described as No. 2—new clause 13 suggests the waiving of means tests in this regard. In proposing the amendments, I am grateful for the comments of the Association of Personal Injury Lawyers. When listening to representations from particular interests, one should apply a health warning oneself. However, I have considered the matter carefully, in relation to my feelings of justice, and I am convinced that the approach is the right one.

Although I completely lack the expertise of my hon. Friend the Member for North Wiltshire on military inquests—the point on which many of us focus—I take a specific interest in the matter. Indeed, we once shared that interest when we were members—I remain a member—of the Parliamentary Assembly of the Council of Europe. I found our work extremely interesting; of course, it ends up with the European convention on human rights being served up with the rations. The convention is a very important part of our work and is taken seriously by all 47 member states. Britain is one of the founder members, and as such our response and example are cardinally important. The convention provides a very valuable safeguard and codification of decency in our public affairs.

Over the weekend, I reread the text of the convention and as ever was struck by two things: first, it is clear, straightforward and demanding, in particular, articles 2 and 3, on torture and ill-treatment; secondly, all the necessary qualifications that Governments must make to discharge their business are rehearsed there. The latter point will be the subject of amendments in later groups. It is not as though the nature of our responsibilities have not been considered before. As I said, the convention is a welcome codification of decent practice.

Let us consider what we should be doing for bereaved families during an inquest. Broadly speaking, the scope of our discussions includes persons who die in the care or custody of the state, or for whose death the state or public authorities might be seen to be responsible. In two respects, I shall come back to that point. The foci of this discussion are military inquests, with which we are now sadly familiar, and the perhaps less numerous but sometimes more politically contentious issue of deaths in custody or resulting from state-administered violence.

The convention, which does not oblige the holding of an inquest, imposes on contracting states an obligation to make and publish inquiries. I notice that the Minister  is nodding; it is not an issue of contention between us. In relation to military inquests and deaths in state care or resulting from the activities of the state or public agents, we have made much progress on what might be termed the official side. I have referred already to the defence inquest arrangements, which are a great improvement. However, we have not made quite the same progress in relation to the bereaved families. There are two areas of concern regarding inquests: first, that they should consider the facts and decide whether any message for future decision making comes out of them; secondly, that they should provide a measure of closure for the families involved. That has begun to happen, but it has not quite happened.

We will deal first with the military inquests. I have heard the argument—and it would not necessarily apply only to this—that all that is needed is a single council to an inquiry. It is an inquisitorial system, not an accusatorial one, and a legally expert person could be appointed to prompt the coroner to call witnesses and cross-examine them and assist him in developing a conclusion in the matter. That is not an approach that would attract me, and I hope it would not attract the lawyers who are present here. I do not like the idea of single-capacity activities unless necessary, especially where separate interests are involved. We have to admit that there are interests; one of the effects of an inquest is likely to be that at some stage, it may lead to private proceedings, litigation, or, in certain cases, to criminal proceedings. These are not determined by the inquest or by the coroner’s verdict but are consequent on it, or rely on facts which may have come to light as a result of the inquiries. In cases of state killing particularly, which are perhaps the most sensitive of these, the state will usually expect to provide its own counsel. If the state is doing that, it is extremely invidious to the families involved if they are not themselves represented.

That leads to the specific issue of legal aid. The advantage of being a lay person without direct involvement is that when one reflects on this issue, one realises that it is slightly odd to talk about legal aid in relation to an inquest—the subject of the inquest is dead. Unless one is going to means-test the estate of the person involved, one must find someone else who may be a relative but who may be a person at some distance. That person’s financial circumstances, or their degree of interest in the outcome of the will or probate, might be quite small. On the other hand, there might be a major interest, which might be inhibited by the fact that a particular person was there but declined to put their treasure into the pot in order to fund the position.

I draw a contrast with what happens in public inquiries. I have had much to do with only one case, and my point is very tangential because—I am relieved to say—I was dismissed at an early stage without any censure. That was in the BSE inquiry under Lord Phillips, which took place in relation to the affairs of the Department of which I was a Minister in the mid-1990s. I came out of that with clean hands, so I was quite relieved. Some Ministers might have been at risk of being censured by it—although I think that they, too, came out of it relatively successfully—certainly, some senior officials were. It was immediately understood that the Government would pay the legal bills because they had acted in discharge of their duties as Ministers or senior officials.  That is right. It is a principle that seems to read across to what is going on in an inquest where a death has taken place.

There is another point about military inquests. As the Minister said this morning, there are widely varying practices between countries regarding whether or not they have coronial inquests as we recognise them. Within the Anglo-Saxon tradition, say, inquests are relatively prevalent. My hon. Friend the Member for North Wiltshire reminded me recently of the Hercules crash in which, I think, 10 service personnel were killed.

One of those killed was an Australian national. There was a rather disturbing and distasteful situation because the Australian Government immediately stood behind their deceased service personnel and offered legal aid to the family, but the British Government were not prepared to do that on the same basis—although some people may have been able to get means-tested legal aid with some difficulty. So there are anomalies to be concerned about.

There are two other points that we should discuss and then I want to come back to the issues of principle before I close, because they are important. The first point is whether the assignment of an advocate, free of charge, to the bereaved family and their associates would make the process more adversarial or even prolong it, which might not be in anyone’s interests and might be distressing. For example, I am sensitive to the point that the hon. Member for Bridgend made this morning. I do not want lawyers to make a meal of things financially, nor do I want to create a very difficult position for the people who are involved. Nevertheless, it seems both normal and proper, particularly in inquisitorial proceedings, to have the various interests represented and the various perspectives of those interests and their advocates brought to the attention of the court and the coroner, so that they may reach their verdict. I see no sign that that process would have to be spun out inordinately, especially if the coroner was doing their job properly. I hope that whatever evidence was adduced would be useful to the inquiry.

The second point, of course, relates to cost. I am quite sure that the Minister will have considered the matters of cost and, indeed, her associates in other Departments may have some difficulty with them. In the end, one has to approach this with a consideration of what is fair and right. We do not, as it were, attenuate justice for people; we do not abolish the jury system to save money, for example. If it is necessary to spend money in this area, it is proper to do so.

It is also worth considering a point that the APIL has made. If there is an inquest, it may well lead to court proceedings. In fact, there may not be so much an additional increment to cost overall in terms of the Government, but some of those court proceedings will result in claims for damages and so on, and the inquest costs can be factored into the recovery that the Government would be able to make in a particular case. So it is by no means open and shut to say that this is just a charter for a whole tier of extra costs. Instead, I say to the Committee that it is very much a matter of what is reasonable and just.

That brings me to the two substantive points that I want to make in relation to court proceedings, first with reference primarily to service people and secondly with reference to what might be termed state-induced deaths.

Mr. Gale, I know that you asked the question, so you will remember an exchange that you had with the Leader of the House about a year ago, on 13 March 2008. She responded to the question that you put to her by saying:

“I agree with the hon. Gentleman that if bereaved relatives with no legal representation turn up on the steps of a coroner’s court and find that the Ministry of Defence and the Army have a great battery of solicitors and QCs, they cannot help but feel that the position is unfair.”

Clearly, I associate myself with that view. She went on to say:

“We need to give bereaved relatives at inquests a real sense of fairness and support.” —[Official Report, 13 March 2008; Vol. 473, c. 421.]

Later, she said:

“It is important to improve the Coroner Service so that bereaved relatives can get answers to their questions”.—[Official Report, 20 March 2008; Vol. 473, c. 1089.]

I agree with all of that.

Without going into the details of specific cases, the Minister will be aware that, from time to time, concern is expressed about, for example, the level of support given to troops, whether their equipment or training is fitting or appropriate and whether mistakes have been made, by friendly forces or otherwise. All those matters, unless they are of the highest degree of secrecy, seem to me entirely appropriate for an open inquest.

That brings me to my final point, about the proprietors of this. In relation to military service, I think my proposal is really part of the military covenant. If we are going to ask people to serve in the uniformed services or otherwise, in foreign locations on behalf of their country, and to put themselves in the line of danger, we have a duty to support them in their lives, and if they give their lives for their country, we have a comparable duty to their family, to see that justice is done and that reasonable inquiries are met.

Let us suppose that we extend that principle to the rather different area of state killings. I appreciate that the persons killed can be persons who are in certain cases not the best or most shining examples of humanity, criminals or otherwise, and there can be cases of accidental killing where this does not apply. In that area too we have an obligation, which dates back to the article 2 obligations that we undertook 60 years ago in the Council of Europe, to see that we do not kill except in the most precisely defined conditions, and that anything done in the name of the state, or as a result of the state, is done and explained publicly, and if necessary people are reproved for their errors.

I was very heartened by the remarks of the Secretary of State at Justice questions last week. In effect, he said that embarrassment—presumably to public authorities—is not an excuse for not having an enquiry. In even more striking terms, I would draw the Committee’s attention to the remarks made by the right hon. Member for Kingston upon Hull, East (Mr. Prescott), the former Deputy Prime Minister, who leads the British delegation to the Council of Europe. He was there in his position as a vice-president, on 30 January this year, which was  less than two weeks ago. In the middle of a debate on Armenia, he made a statement that I admired—and I went up to him afterwards and told him so. It says everything we need to say about these proposals. In relation to Armenia and certain events there, he said:

“There should be an inquiry. In my country, we killed someone unlawfully, a Brazilian. We had a massive inquiry. It was a terrible tragedy. The authorities were wrong. It is important to hold an inquiry.”

I thought that was a splendid remark: blunt, straightforward and to the point.

To summarise, inevitably the state impacts on the citizen, both in terms of its own servants whom it puts in the line of danger, in all our interests, and in what it does either in incarceration or enforcement. I have left aside the issue about what is done in, for example, the nationalised state-provided health service, but you can look at that principle as well.

It seems to me that the basic principle referred to in our evidence last week is one of equality of arms. If we are not having a single-advocate single-function inquiry, but if we are having an inquest where the state with all its resources is represented by legal counsel, it seems to me inequitable not to offer the same opportunities to the families of the bereaved. That is particularly the case where their loved ones have gone to serve their country, but it is equally the case that the descendants and family of people who I was implying might be unworthy or undesirable, who have come into the way of the state and for whatever reason have been killed, should have the opportunity of getting to the truth of what took place, and hearing a public justification of it made, along the splendid lines adumbrated by the former Deputy Prime Minister.

This group of amendments is about resources and about giving access to advocacy. That is an essential part of this process. There are ways of doing it—as I said, even the convention itself is not prescriptive of the precise way of dealing with it. But the present situation, although it is improving in some way, particularly on the official side, has not gone as far as it should or as far as it would be just for it to go. I would urge the Committee to consider this with a view to taking matters further forward in the interests of justice, of the families involved, and ultimately of a better inquiry and exposure of lessons to be learnt whenever such tragedy occurs.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East 4:15 pm, 10th February 2009

It is a great pleasure to follow the hon. Member for Daventry. In fact, it is almost a unique experience. I think it is the first time in over 20 years in this House that I have heard anyone praise my right hon. Friend the Member for Kingston upon Hull, East (Mr. Prescott) for his fluency. However, I know it was sincerely meant and I would not want to take away from what the hon. Gentleman said in any way.

I have a great deal of sympathy with the amendments that stand in the hon. Gentleman’s name and that of his colleague, mainly because of the sentiment that is deployed behind them. I will not repeat the arguments that I have made in another context in this Bill, about Hillsborough. But there is an issue about what happens with bereaved families—how their interests are taken into account, the procedures that are put in place to include them in the process in some way—that runs right through this section. The same principle applies, I accept, to those who are in some way in the care of the state at a time when they meet an untimely end.

So I sympathise with the hon. Gentleman, but I do have a couple of issues that I am either unclear or worried about, which it is probably well to raise at this point. My first worry is that—I think it is what the hon. Gentleman is trying to deal with, and in this I have already said that I sympathise with him—there is a feeling on the part of bereaved families in these sorts of processes that they are in an unequal position. That is to say, whether it is the state or just a straightforward inquest, their particular concerns do not seem to have any way of expressing themselves in the process.

That being common ground between us, the hon. Gentleman then goes on to argue for an automatic right to legal representation. But the way that he described it points in a slightly different direction. The problem is, as he said, that people arrive on day one of an inquest, having certain expectations that are not met by the process. I am not entirely clear in my own mind that having legal representation necessarily resolves that problem. In fact, in some ways it could exacerbate it.

The hon. Gentleman says—again I agree with him—that he wants to see these events as inquisitorial rather than adversarial. But when professional legal representation is included in any process, it almost inevitably becomes adversarial. Unless the legal representatives concerned have some special kind of training that makes them better prepared for these events than they are on other occasions, it would inevitably go in the opposite direction to that in which the hon. Gentleman hopes to move.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I am grateful to the right hon. Gentleman, not least for his opening remarks. I meant what I said about the Deputy Prime Minister because it was very striking.

My judgment on this—I respect the right hon. Gentleman’s position—is that this is not a charter for querulous lawyers. If people are denied the opportunity of getting to the facts at an inquest through a difficulty in getting legal representation, they are if anything more likely to go for legal challenges in subsequent court proceedings than if the matter had been picked out carefully by expert lawyers against an inquisitorial rather than accusatorial background.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

The hon. Gentleman, as ever, makes a good, thoughtful point very clearly. However, my concern is the opposite of his. Perhaps, in the context he mentions, expectations about what can be achieved through an inquest might be raised rather than lowered. He is right to say that it is difficult for people who have suffered a bereavement to get a complete, clear understanding of the inquest process that they are going into. Perhaps, if they think that they can get legal representation, they might be encouraged to believe that it is an entirely different process from the one that is actually in place on a legal basis. That is a danger. I am not saying that it is inevitable, but I am concerned about that.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

Would the right hon. Gentleman agree that, of course, all legal counsel in such an inquiry should have and should remember their duty to the court as well as to those they represent? In other words, they are advancing a process of inquiry rather than pursuing a course to a determinative conclusion.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

The hon. Gentleman makes his point well, but he might be accused, not by me but by others—I am conscious that I am surrounded by hon. Members  with a background in the legal profession—of taking a somewhat idealistic view of how seriously such people take their duty to the court on every occasion. However, having already traduced my right hon. Friend the Member for Kingston upon Hull, East—I may not have heard the last of that—it is probably wise for me not to take on the entire legal profession at this moment. Two enemies of such stature in one day may be too much even for me.

Sitting suspended for a Division in the House.

On resuming

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I was hoping to draw my remarks to a close. Having offended my right hon. Friend the Member for Kingston upon Hull, East and the entire legal profession, it would be inadvisable for me to go much further. However, I want to finish by making what I think of as a practical suggestion.

The chief coroner, under the new arrangements, ought to be put under a duty to explain to bereaved families, by whatever means are appropriate, what the role of an inquest is, how they might be represented and what sort of representations they should be able to make. I accept the point that the hon. Gentleman is making, namely that people come to the process with expectations that are too high or, perhaps, with a complete lack of understanding about the process that they are involved in. At some point, assuming that either the hon. Gentleman asks to withdraw his amendment or it is defeated, that particular issue is worthy of further consideration.

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

I shall keep my remarks brief, as much has already been said, ably, by the hon. Member for Daventry and by the right hon. Member for Knowsley, North and Sefton, East.

This is an important issue, because there is both a perceived and a real injustice here. That was highlighted in the comments about families turning up on the first day of an inquest only to see a barrage of lawyers facing them while they cannot afford their own lawyer to represent them. That creates an imbalance in the system that is particularly stark when the state is paying for one set of lawyers and the other side—supposedly the victims in the inquiry—is not funded and does not receive any support to help them make their case. Coroners are clearly concerned about that, as we heard in evidence given to us and as has come through in a number of the papers that we have been sent. That issue is worrying a number of people involved in the process and it seems to be a fairly widespread concern.

It is about getting the balance right, with fairness and equality on one side so that families feel that they are being treated, and are seen to be treated, fairly. The coroners system should not be made too adversarial. It is a different system from that in the other courts. I agree with the Minister on that point. As she mentioned in the evidence sessions, it is important to ensure that we do not end up turning a coroners court into a court like any other. It should be a different system. It is important to get the balance right between the two angles.

However, in cases where somebody has died in the custody or care of or at the hands of the state, lawyers will already be involved in the inquest, as they represent the state. It would be foolish to pretend that we can take lawyers entirely out of the situation. There are inquests at which one side is represented by lawyers; it seems unfair that, for financial reasons, the other side might find it almost impossible to access legal support and advice in the same setting. It seems distasteful, when the state is putting significant sums into legal advice on one side, that others cannot access it at all. At the moment, the balance is too far in one direction. We must be careful not to push it too far the opposite way, but families are missing out and fairness is not being granted.

From what I can see, the amendments occupy a sliding scale or continuum between only a small number of cases being eligible for legal aid and nearly every case involving an inquest being eligible for full legal support. The balance is probably somewhere between those two extremes. To clarify our position, it is essential that a bare minimum of non-means-tested legal support is available for certain cases. Those cases should include service deaths in forces abroad and cases where the victim died in the custody or care of or at the hands of the state. In such cases, lawyers will already be involved on one side; it is only fair for non-means-tested legal aid to be available to the families on the other. There is a much larger grey area, and I am sure that there is much discussion to be had about exactly where to draw the line, but we need to consider a bare minimum, as the families in question are not being treated fairly by the system and are losing out.

There is clearly feeling on both sides of the Committee that we need to consider the issue. It may be that none of the amendments before us is perfect or would work out, but I hope that the Minister will give us her response to the points raised and give the issue a sympathetic hearing. I do not know how generous she is feeling; perhaps she is prepared to come back with proposals to make legal support available at inquests for families in certain limited circumstances. I hope that she will be as generous this afternoon as she was this morning.

Photo of Roger Gale Roger Gale Conservative, North Thanet

New clause 11 is in your name, Mr. Kidney. I apologise for not calling you after Mr. Boswell.

Photo of David Kidney David Kidney Labour, Stafford

That is fine by me, Mr. Gale. In fact, I would like to say how fortunate we all are in having the benefit of your sharp mind and quick wit to guide us through these proceedings.

When the hon. Lady said that none of the amendments was perfect, she was obviously not referring to new clause 11. Although I practised as a solicitor for 20 years and appeared at quite a few inquests for bereaved families—some of them for free, as legal aid was not available—I am not here to argue that we should open up a new area of paid work for lawyers. I am arguing that, in the interests of justice, there ought to be access to legal aid in some cases where it is not available at present.

The ministerial team are open-minded with regard to making some change in the present position, but my understanding is that they do not want to open the floodgates to lots of new claims for expense on the legal aid fund, which is the most generous in the world and  already under lots of pressure, by going too far with the amendments. I urge the Minister to consider something like new clause 11, allied to some other measures that I will mention, as the way forward.

I said this morning that my amendment to the previous clause was all my own work, but this afternoon my research is all my own work. I realised that the door is locked on legal aid for representation at inquests because the Access to Justice Act 1999 forbids it. That is why there is an exceptional process whereby people can apply exceptionally to have representation through legal aid at an inquest. I think I am right in saying that, since the Ministry of Defence Command Paper last year, no application for the bereaved family of a serving military person to be represented under legal aid for exceptional reasons has been refused. Each application has been granted. It could be that when we argue about greater access to legal aid, we are talking more about the bereaved families of civilians who have been killed.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

Does the hon. Gentleman agree that there is a danger that by functionally conceding in one area, that of service deaths, we open up a fresh inequity in that state-induced killings might not be covered in the same way? Is he troubled by that?

Photo of David Kidney David Kidney Labour, Stafford

Yes, I will come to that. First, let me return to the Second Reading debate on 26 January. The hon. Member for North Wiltshire, who is a member of the Committee but cannot be with us today, asked the Secretary of State whether he would consider making it routine for the bereaved families of service personnel to have the benefit of legal aid without question at inquest. As part of his answer, the Secretary of State said,

“I certainly undertake that we will consider it.”—[Official Report, 26 January 2009; Vol. 487, c. 28.]

My hon. Friend the Member for Islington, North (Jeremy Corbyn) pushed the boat out further and asked about legal aid for every bereaved family at an inquest. The Secretary of State replied:

“We are happy to think about it, but as I have said, there are some complexities.”—[Official Report, 26 January 2009; Vol. 487, c. 28.]

That was the position on Second Reading. My hon. Friend the Minister gave evidence last week, and in answer to my questions agreed that we do not want to open the floodgates to lots of lawyers being present at inquests representing people on legal aid. When I asked whether she would consider an amendment to the present law to make it easier to get legal aid, she said:

“We would certainly look at further representation.”——[Official Report, Coroners and Justice Public Bill Committee, 3 February 2009; c. 16, Q29.]

I was grateful for that at the time.

I would like to suggest a solution. At the moment, the default position gives no access to legal aid for representation at an inquest, although someone can make an exceptional case to get legal aid. I would like the default position to make access available for representation at an inquest, but there should be qualifying conditions. Sadly, one of those conditions would need to be that of maintaining the means test, which some people have spoken against, and there would be others. I do not pretend to suggest what those conditions would be—that would be a matter for the Ministry of Justice, the Legal Services Commission  and representatives from the coroners. They should talk about which cases would merit having the benefit of legal representation and which cases would not need that.

Coroners are on the whole a well-qualified, professional group of people who are mindful of their duties to bereaved family members, and of their role in getting to the truth of what caused a person’s death, whether or not lawyers representing specific interests are involved. When we approve a code for bereaved families and how they will be looked after in the coroners’ courts, it will underline the duty of the coroner to have regard to the interests of bereaved families. In a sense, we have come some way already in thinking that we do not need to grant representation in every case through legal aid.

Ministers say that we have an inquisitorial system, and that we do not want to change it to an adversarial one. However, as has been mentioned, many people turn up at inquests who are already represented by lawyers. It could be that somebody connected to the incident that caused the death is involved with a major company, which will pay for their lawyers to turn up. It could be that the state—a Government Department or an agency—is involved, and representatives from that will turn up with lawyers. A police service could expect to be legally represented as could a prison, but the bereaved family have no entitlement to help with representation if they cannot afford a lawyer. There is an imbalance, but that does not affect the inquisitorial system. The danger is that the system is a walkover for those who are represented compared with those who are not. For me, it is an argument of justice to say that both sides should be represented. The alternative would be that nobody should be represented, because the coroner is carrying out an inquisitorial system. That suggests too great a restriction on people’s entitlement to have someone to help them to present their arguments and requests for a clear outcome of an inquest. Therefore, I do not buy the argument that someone being represented by a lawyer, having just lost a member of their family, somehow stops the inquest from being an inquisitorial process.

My other point is about the expense involved. How expensive is it? Even though we have the most generous legal aid system in the world, and it is currently under stress, only about 30,000 of the average 500,000 deaths a year in England and Wales lead to inquests, and of those only about 500 involve juries. By the time the cases that would not pass the means test or whose merits do not justify the need for legal representation have been weeded out, we are talking about quite a small number, yet the cases that deserve representation in the interests of justice do get it.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East 5:00 pm, 10th February 2009

Does my hon. Friend think that, were we to change the arrangements in the way the hon. Member for Daventry wants, and possibly even in the way my hon. Friend’s new clause envisages, those numbers would inevitably rise? They might not cover all of them, but there would be pressure in the system for more inquests with juries, which might not produce any better a result.

Photo of David Kidney David Kidney Labour, Stafford

My hon. Friend’s last point is a relief, because I almost thought that he was suggesting that the number of deaths would go up if people did not have legal aid at inquests, which is certainly not the case. I do not think that there is a risk that allowing people legal aid to be represented at inquests would lead to more inquests because the system for determining why and under what circumstances there should be an inquest is already defined in the Bill, and the definitions do not change because of the access to legal aid.

My argument is simply to question the default position for having the option of being represented under legal aid at an inquest. Is it that no one gets access to legal aid unless there is an exceptional argument that they can make, which I reject? Should not it be, as in most other proceedings, that there is an entitlement to representation, but that there are conditions people have to fulfil before they can be granted legal aid? That, to me, is the fairer and preferable solution and the one I urge the Minister to adopt.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

It is a pleasure to serve under your chairmanship, Mr. Gale. I am grateful to my hon. Friend the Member for Daventry for moving the amendment, to which we are sympathetic. There are, however, obvious problems with funding that have already been referred to, and I wonder whether the Minister will touch on that. I want to suggest a series of modest measures that might help the situation and give the Minister some food for thought.

As the hon. Member for Stafford pointed out, the Access to Justice Act 1999 greatly reduced the eligibility of many people for legal aid. I was not a Member of the House at the time, but my hon. and learned Friend the Member for Harborough led for the Opposition when the Bill was going through Parliament and described it as an Act of a heartless and uncaring Government because it took all those people out of the scope of legal aid. As an experienced lawyer and recorder, he is better qualified than I am to comment on that matter.

Photo of David Kidney David Kidney Labour, Stafford

To be clear on this subject, there was no entitlement to legal aid for representation at an inquest before 1997.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

The hon. Gentleman is right, but he touched on that Act, which of course greatly reduced the eligibility for legal aid. On inquests, what concerns me greatly is the extent to which Government Departments, agencies and quangos increasingly turn up with a battery of high-powered lawyers. Is it really necessary for organisations such as the Highways Agency or police authorities to turn up with outside QCs and lawyers? I should declare an interest as I am a barrister, and I have been instructed on several occasions to appear at inquests and have often wondered why a great deal of taxpayers’ money is spent on hiring outside lawyers when those organisations often have in-house lawyers.

I quite agree with what has been said so far. It is intimidating for members of a bereaved family to turn up at an inquest. They might have been told by the local solicitor that it will cost them a few thousand pounds to have a barrister and many hundreds of pounds to be represented by the solicitor. I have been told by many constituents that they go to the inquest with no legal help. They find it very intimidating.

Legislation is not required to reduce the inequality of arms. It requires a ministerial diktat that says to Departments and agencies, “You have in-house lawyers and competent in-house staff who can advise on these legal matters. You do not have to instruct expensive lawyers.” As the Minister has responsibility for inquests, coroners’ courts and the criminal system, perhaps she can call in her colleagues and ask them about the cost of outside representation. Last year, the MOD spent more than £1 million on legal representation at inquests in addition to the cost of its in-house lawyers, which is a huge figure.

What concerns Conservative Front Benchers is the inequality of arms. We need a more effective system than the current one, whereby members of the family or other interested parties can apply for extraordinary funding. In 2007-08, only 12 applications for extraordinary funding out of 69 were granted. The previous year, it was 16 out of 104. Not many extraordinary funding applications are granted. Given that we are looking at a situation of total inequality of arms, we need a better system to allow families to get legal representation when Departments, agencies and quangos insist on having lawyers.

Photo of Madeleine Moon Madeleine Moon Labour, Bridgend

I wonder whether the hon. Gentleman will help me in this matter, as I am not from the legal profession. Would there be tremendous savings, and not only for Departments, if only solicitors and not barristers could appear at inquests? Would it be helpful for the Minister to examine that?

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

The hon. Lady is right, although I would not go as far as she is suggesting. I have attended inquests where there were QCs and leading juniors, so QCs, juniors and solicitors were present. If Departments insist on having outside lawyers, they should insist on better value for money. If a QC appears, they should do so without a junior and without the instructing solicitor in place. There are ways of driving down costs and of getting better value for money.

We need ministerial action on this matter. I have given the figures for the MOD, and we could just as easily get the figures for every other Department. Will the Minister say how much money could be saved if Ministers issued a decree insisting Departments, quangos and agencies be more sparing in the use of legal representation at inquests?

The outcome of many inquests is a civil action. Am I not right that if negligence is proven at the civil action and costs are awarded to the injured party to be paid by the negligent party, those costs include funding for the legal representation at the inquest? If the Minister and her expert colleagues in the Box do not have the figure, perhaps she will write to me to say how much money is brought in every year as result of those costs being awarded.

If we are looking at how to get more legal representation for bereaved families, we should look at all those costs and find a practical way forward. I hope that the Minister takes those points on board.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Having sat here all day, it is incumbent on me to say something to get myself into the Official Report, otherwise people  might think that I am not earning my crust. Having heard what I have to say, they might not think that I am earning my crust anyway.

The amendments in the group were tabled by my hon. Friends the Members for North Wiltshire and for Daventry. I thank the latter for what he said and the way in which he said it, and I thank the hon. Member for Stafford for the way in which he advanced his argument on new clause 11.

I want to say one or two things to complement what my hon. Friend the Member for North-West Norfolk said. This is not a matter for party political controversy—all members of the Committee are trying to edge their way forward to find a common-sense way of achieving justice. Of course, in any coroner’s inquest, we want a resolution as to how, why and when a deceased person met their death. That is a shared objective, and if we can arrive at it in the most effective and least troublesome way for all concerned, including the Treasury, so be it.

It is easy—sometimes politicians do this—to fall into the trap of assuming that lawyers have the same venal motives as some politicians when there is a dispute. I have found it possible in my life, as a lawyer and a Member of Parliament, to be deeply unattractive as an MP but to be utterly charming and wonderful as a member of the Bar. It is entirely possible, when engaging in any fact-finding exercise, be it an adversarial trial or an inquisitorial inquest, to behave sensibly and to address the witnesses and advance one’s arguments with a degree of politeness and courtesy. It is not difficult. If I may say so, I do not think that lawyers automatically become aggressive and rude, or forget what they are there to achieve, when they get into court. They are there to achieve justice, as a matter of public policy, but also to serve the interests of their clients, and there is nothing wrong with that.

I fully accept the difficulties that any Government must have, especially during a recession or, as the Prime Minister occasionally says, a depression—I probably understand how he feels—to work out how best to order the expenditure of public money. Any suggestion that a piece of legislation will or could increase state spending is something about which Ministers must be careful, as must those who aspire to be Ministers. None the less, there must be a system that can be devised that takes us out of the problems of the Access to Justice Act 1999 prohibition, and those that existed beforehand, and that gives the coroner the discretion, in the appropriate case and when it is helpful, to award legal representation assistance.

I am not here to tell the Committee how we would design that system—there is no point—but there will be cases when it is appropriate, fair and efficient to give assistance to those who are unable to afford representation, apart from the military cases mentioned by the hon. Member for Stafford. One problem with sitting in cases when one or both parties are unrepresented is that it takes an awful lot longer. It requires the judge, fact finder or arbitrator to descend into the forum to extract from emotionally charged parties the real issues in the case. It is much easier for the tribunal to have represented parties in front of them, because, by and large, those parties understand the factual and legal issues that need to be distilled in order to arrive at a just conclusion.

Essentially, I am asking the Government to understand that there will be occasions when it is wholly unnecessary for either side or any party in an inquisitorial system, such as a coroner’s court, to be represented. I have appeared in only two inquests, once as an advocate and once as a witness, and the issues in both those cases were not difficult to resolve. Both cases involved motor accidents, and I was paid by the driver’s insurance company in the case in which I appeared as a barrister.

If the coroner were given discretion to decide whether representation is required, he could, according to a template or means test, work out what level of representation is required. I would go so far as to say that not simply should the successful party be able to recover any costs incurred during the coroner’s inquest in subsequent civil proceedings, as my hon. Friend the Member for North-West Norfolk has suggested, but when an unnecessary dispute is entered into and time is wasted by one party running arguments or factual issues that are not germane or that could be resolved without dispute, the coroner should have the power to award the costs of an issue or of the inquest to one or a number of parties.

We all agree that there is something deeply unattractive about a state organisation appearing at an inquest with a room full of lawyers, when the bereaved families, who are emotionally distraught, confused, unable to seek fairness where it exists and incapable, because of their situation, to advance their own interests effectively, are at that huge disadvantage. Yes, there should be equality of arms; yes, there should be fairness; and yes, there should be common sense; but above all, let us see what we can do to achieve justice.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice 5:15 pm, 10th February 2009

If I have not welcomed you to the Committee this afternoon, Mr. Gale, let me join other hon. Members in doing so.

I start by telling the hon. Member for Cardiff, Central that I cannot be as generous as I was this morning, and I do not want to raise her hopes further during my comments. Some constructive comments were made during the debate, and I will consider them to see whether more can be done, as the hon. and learned Member for Harborough has suggested, not only for bereaved families, but in the interests of justice. However, I would be remiss if I did not put on the record the fact that the proceedings are inquisitorial, not adversarial. They are designed to establish the facts about a death—who the person was, and the how, the why and the when of their death—and to consider the broader circumstances for article 2 cases. I shall return to such cases in a moment.

In response to my hon. Friend the Member for Stafford, even with the inadequacies of the present system, and if one side had a phalanx of lawyers when the bereaved family was not represented, I do not believe that the case would be a walkover. The vast majority of coroners are perfectly capable of ensuring that there is a proper balance and a proper investigation. I would not go down the road of suggesting that simply because one side brings along a QC, a junior and several others it will necessarily receive a better deal from the coroner. Coroners take considerable pride in ensuring not only that they remain impartial, but that bereaved families have their questions heard and answered.

It has been more or less accepted in Committee that only in the most legally complex cases would the assistance of counsel to the inquest be necessary, and the revised coroners’ rules will make provision for that. The majority of inquests do not need representations. Legal help—the advice and assistance level of legal aid—is available subject to financial eligibility and the usual tests. I am grateful that most members of the Committee recognise that the means test must remain, if we were to go down the route that has been suggested.

Legal help would also fund someone to attend as a McKenzie friend, if that is appropriate, providing that the coroner gave permission. Under clause 30, bereaved and other interested people can appeal certain decisions free of charge to the chief coroner. Advice on the format of those appeals and the scope of the appeal system will be published in the final version of the charter that hopefully will be available before too long. Obviously, the chief coroner’s office will also be able to provide advice on appeals, although not direct legal advice.

I hope that, to some extent, I have answered the question of my right hon. Friend the Member for Knowsley, North and Sefton, East about making sure that families are informed about how inquests are structured. We have put the responsibility of the charter on the coroner’s office to make sure that people know how the inquest will be conducted and what the coroner’s role will be.

Naturally, we accept that there are cases when it is in the wider public interest that a bereaved person should be represented. In military inquests, there has been funding for exceptional cases, as there has been in cases involving hospital deaths. It is already in scope for deaths in police and prison custody, which are likely to raise article 2 issues. When I was the Minister with responsibility for legal aid, I always made exceptional allowance for any death that happened in custody, because I considered it important that the wider public were served. Means-testing has to remain, as well as the opportunities for greater access for family participation that will be set out in the charter.

It would be easy to say that the cost of extending legal aid would be prohibitive and to leave it at that. However, let me give an example of the size of the resource problem. We estimate that about 800 inquests a year involve public authorities. They cost an average of about £8,000 for legal aid, which amounts to £6.4 million a year. If we were to extend legal aid to all inquests, the sum would be much larger. In 2007, there were almost 31,000 inquests in England and Wales.

The equality of arms argument is quite attractive. There is a perception that a family or an interested party that is not represented and that sees a phalanx of lawyers on the other side feels that there is not an equality of arms and that they will not receive a fair hearing. However, I am not entirely convinced that the way to improve that position is simply to provide another army of lawyers on the other side. Perhaps I should declare that I, too, am not a lawyer. I am not saying that so that I can attack lawyers per se, but I agree with the hon. Member for North-West Norfolk, who said that we should challenge why one side feels always that it has to have such high levels of representation. He suggested  that I serve a ministerial diktat on other Departments. What I might do instead is send my hon. Friend the Under-Secretary of State for Justice into other Departments to explain to them in clear terms that that is not necessarily the best way to achieve what we want in terms of justice at inquests. She is a ferocious terrier when it comes to making sure that we get proper value for money. That might be another task that she could take on board.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

There is a perfectly good point to be made about the overuse of lawyers just as there is about the underuse of lawyers. An inanimate entity such as a Department or a corporation can only be represented by a human being at an inquiry. While I accept that there are Ministry of Justice in-house lawyers who could represent the Department at an inquiry, they may be doing other things. Sometimes it is cheaper and more efficient to instruct a lawyer. I do not think that you need to box yourself in, Mr. Gale, to a one-size-fits-all—

Photo of Roger Gale Roger Gale Conservative, North Thanet

I don’t feel remotely boxed in.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

You have never felt boxed in at all, Mr. Gale.

It strikes me that the Minister might want to hold the Under-Secretary in the Department before she is sent off around Whitehall. There may be some value, and it may be a more efficient use of the system, to instruct outside lawyers, who may be cheaper.

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

The hon. and learned Gentleman makes a fair point. I am sure that if my hon. Friend takes on board this task on my behalf, she will ask those questions, too. There are occasions when an outside lawyer may well make more economic sense than an internal one.

I take on board what my hon. Friend the Member for Stafford said when he quoted both me and my right hon. Friend the Secretary of State. We recognise that there is an issue. We would like to see more fairness in the system. It is important that bereaved people and other interested parties have more accessible opportunities for involvement in the process. That involves not only legal representation but the information that is generally available to them. It is about support through the witness service and a whole variety of other areas where people can be helped.

I turn briefly to amendment 101, which advocates making legal representatives interested persons under clause 36. I have to resist that one. It would give the representative the right to appeal under clause 30, but I can see absolutely no justification for that. Families already automatically qualify as interested persons, and legal representatives who are acting on their behalf need to take advice from the family, rather than having the separate ability to make an appeal themselves. There is also discretion for the senior coroner to categorise any other person as interested, if they see fit.

Finally, amendment 102 proposes that bereaved families should be entitled to representation on the basis that the coroner may issue a report to prevent further deaths. There is a practical issue there. A coroner would not necessarily be able to tell in advance whether they were likely to issue such a report. Even if that were clear, that would assume that following the conclusion of the  business of the inquest there would be a separate set of proceedings where the coroner would be addressed as to whether a report to prevent future deaths should be made. That is certainly not our intention in this Bill. Such reports are entirely a matter for the coroner when they have considered all the evidence. If we were to ratchet up the proceedings in that kind of way, it would not necessarily give us a more satisfactory outcome. We consulted on that change last year and as a result decided it was not a sensible way forward.

As I have said, hon. Members are only too well aware of the constraints within which we work in terms of resources, not just in legal aid but across the board. I hope that that does not mean that we allow the best to make the enemy of the good. The reforms in this part of the Bill are a good set of proposals. Yes, some new resources will make them even better. I dare say that if I were composing my own shopping list, I would think of a number of things that I would put in before I would extend legal aid, in particular in terms of benefiting families and putting them at the heart of the system.

I will consider the issues and the very practical and constructive comments that have been made today, in particular whether there is any need to move the exception from one side of the line to the other, as my hon. Friend the Member for Stafford suggested. I will certainly come back to the hon. Member for North-West Norfolk on costs. He has already highlighted one in terms of the Ministry of Defence spending over a £1 million. Another idea that I thought somebody might come up with is if a Department or an agency decides to employ barristers, it would also pay for such representation for the bereaved family. That might focus a few minds quite sharply. I am not advocating that at this stage in the Bill, let me hasten to add. These are issues that I think we can consider over the next few weeks. In the meantime, I ask the hon. Gentleman to withdraw the amendment.

Photo of Tim Boswell Tim Boswell Conservative, Daventry 5:30 pm, 10th February 2009

This has been a thoughtful and generally good-natured debate which has brought to the attention of the Committee some of the feelings on all sides about what is fair and right in these very sensitive issues. I would not exclude from that the Minister, although I am not wholly and entirely surprised that she did not fall over at the first suggestion. I listened in particular to her strictures on amendments 101 and 102, and I will obviously reflect on those.

In relation to the general argument, I am a little disconcerted that—though I hold no brief for them—lawyers have been felt in some sense to be an irritant to the inquisitorial process, as if they were necessarily going to make things more difficult. There is an argument on the other side that when dealing with family members who are sometimes confused, unfamiliar or in certain cases distressed, there is a case for good support and advocacy, both in terms of the court and of their own experience going through the court. I hope the Minister will continue to reflect on that.

I am sensitive, as we should all be, to the question of public cost, what the net cost would be and what value would be achieved in terms of justice gained. I would say with no doubt at all that in the pursuit of equality of arms—a phrase we have used a number of times—we would not want to create an arms race with yet further  legal escalation. I recall that in my brief and no doubt inglorious career as a member of a tribunal 25 years ago, I was concerned that what I thought had been three good persons meeting together, hearing a bit of evidence and concluding a decision after lunch, had turned into silks coming for three or four days and developing their case in what I caricatured as a legal arms race. Nobody wants that to happen. I understand the constraints under which the Minister is operating.

It seems that if we are to make progress in this area, we need to have regard to general principles. One is access to justice, in the sense that people should be able to get the advice that they need and feel that they have been able to do that, that they have not been left bereft by the process. Secondly, there is a general point. Some interesting perspectives have come out on what is or might be the equality of arms. If one side, in effect, takes up a weapon, others might be able to respond to that. Returning to my remarks in praise of the right hon. Member for Kingston upon Hull, East, the former Deputy Prime Minister, I think that, on state killings, there is a huge issue about the integrity of the process. I suspect that we may come on to that in the next debate, so I shall not go on at length, but I must say that we need to satisfy people who are quite untrusting of the state at the moment—I make no remark about the quality of the present Government; it is just the way people are—on the question of whether we treat them fairly. That is the spirit of article 2 and, as the jurisprudence develops, ultimately how article 2 will be interpreted. Standards and practices may well have to correct themselves over time to keep ahead of the article and the challenges under it.

I am always conscious, as the Minister herself has said that she is, that the best can be the enemy of the good, and, having set out those high principles, I must say to her in conclusion that I welcome the way in which she has reflected on and, in effect, carried out a dialogue with Committee members. It would not serve the interests of my case if I were to come in all guns blazing and force a Division, but, in the spirit of what she has said, I hope that she will continue to reflect on practical ways in which we can make access to justice easier. If she informs herself with that principle and has regard to all the other factors, including the resources involved, we will move towards a better conclusion. If we do that, many people will be grateful to us. In that spirit, and after a constructive debate, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 ordered to stand part of the Bill.