Coroners’ investigations into still-births

Civil Partnerships, Marriages and Deaths (Registration Etc.) Bill – in a Public Bill Committee at 4:00 pm on 18th July 2018.

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Photo of Gareth Thomas Gareth Thomas Party Chair, Co-operative Party 4:00 pm, 18th July 2018

I beg to move amendment 17, in clause 4, page 2, line 18, leave out “whether, and if so how,” and insert “how”.

This amendment would mean that the Secretary of State’s report would examine how the law should be changed, and not whether it should be changed.

Photo of Virendra Sharma Virendra Sharma Labour, Ealing, Southall

With this it will be convenient to discuss the following:

Amendment 18, in clause 4, page 2, line 22, after “must” insert “, within six months of the passing of this Act,”.

This amendment would mean that the Secretary of State’s report must be published within six months of the Bill receiving Royal Assent.

Clause stand part.

Amendment 15, in the title, line 4, leave out “give coroners the power to investigate stillborn deaths” and insert “make provision about the investigation of still-births”.

This amendment adjusts the long title so as better to reflect the contents of Clause 4.

Photo of Gareth Thomas Gareth Thomas Party Chair, Co-operative Party

Again, it was a moment of weakness when I agreed, in the absence of my hon. Friend the Member for Nottingham South, to speak to her amendments, because I had not realised quite how much commitment she had already shown to the subjects in these amendments. As hon. Members, will know, she has had personal experience, through her constituency, of these issues. She had secured from the previous Secretary of State for Health a commitment that the law would be changed. She is, therefore, anxious to use these probing amendments to explore whether the Government have slightly changed their mind or are going slow, and what the timescale is for the Government to move on the previous Secretary of State’s commitment in his maternity safety strategy. In that strategy, he said that he would work with the Ministry of Justice to produce a report on the issues before full-term stillbirths could be classed as neonatal deaths. That report was published in Hansard.

The constituents of my hon. Friend the Member for Nottingham South who motivated her to table this amendmentJack and Sarah—lost their daughter, Harriet, in labour. I understand that Sarah had a scan at 38 weeks and the baby appeared to be doing well. Sarah was in labour for six days and Harriet died during that time. The death was classified as a stillbirth and, according to the current law, because Harriet was not born alive her death could not be investigated.

Both Harriet’s parents are medical professionals and they knew that something was wrong with the care that they had received. When the internal review found no fault with the care that they had been given, they fought extremely hard to get an external review. That external review found that Harriet’s death was almost certainly preventable. Following that review, Harriet’s parents have campaigned extensively to change the law, so that coroners can investigate stillbirths that occur past 37 weeks.

I press the point that surely a baby’s death should be treated no differently from any other death. In that sense, the coroner represents an independent judicial office, and therefore any inquest into the death would be truly independent and transparent. A coroner would be able to address local issues at a particular hospital or unit where there were concerns about the care arrangements, by making references to other statutory bodies.

As I say, it had appeared that the former Secretary of State for Health was committed to making changes, but the caveat in clause 4(1)—the reference to

“whether…the law ought to be changed”— has raised some concerns about whether there has been any slowing-down of commitment or even—I hesitate to say it—backtracking. In the spirit of a probing amendment, I hope that the Minister will reassure us and commit to a timescale for moving things forward.

I apologise to you, Mr Sharma, and the Committee because I have a long-standing commitment and if the debate on this amendment goes beyond 4.30 pm, I will have to read the comments of the Minister and the hon. Member for East Worthing and Shoreham, who promoted this Bill, in Hansard. However, I hope that the Minister will give us the response that we need.

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

On that basis, we will do things very quickly. I will comment on amendments 17 and 18, which the hon. Gentleman has moved. However, I will just need to speak to clause 4 stand part and amendment 15, which has been tabled in my name and that of the Minister.

Amendment 17 addresses the issue of coroners having the power to investigate. Currently, under the Coroners and Justice Act 2009, coroners have a duty to investigate deaths in certain circumstances, such as where the death is violent or unnatural, or where the cause of death is unknown. Of course, that duty extends to the deaths of newborns of any age, including those who die immediately after birth, but there the duty stops.

So coroners do not have jurisdiction to investigate if a baby showed no signs of life independent of the mother, including if the baby died during labour. The reason for this is that coroners can only investigate deaths where there has first been life and that is obviously not the case for a stillborn child. However, as it says in the title of the clause, they were still born. Nevertheless, the coroner, under the current legislation, does not have the power to investigate stillbirths, however difficult the circumstances might be. The coroner can investigate when there is doubt about whether a baby was stillborn or was born alive, but they cannot investigate the circumstances of why a baby was stillborn if that is what they find.

That is wrong. Coroners should have powers to investigate when a baby dies during labour, just as they can when a baby dies immediately after delivery. I applaud the Department for Health and Social Care’s work to improve maternity safety, including instructing the Healthcare Safety Investigation Branch to conduct independent investigations into all English cases of term stillbirth occurring during labour, as defined by the Royal College of Obstetricians and Gynaecologists’ Each Baby Counts criteria. A lot of good work is going on in this area to prevent this whole thing from happening in the first place. The national perinatal mortality review tool, rolled out in January this year, will ensure that learning is captured from all cases of perinatal mortality.

I support the Government’s ambition to halve the national rate of stillbirth, neonatal and maternal deaths and birth-related brain injuries by 2025, and the parallel ambition to reduce rates of premature birth from 8% to 6%, as a starting point. In the spirit of those ambitions, I believe that coroners have an important role to play in delivering confidence that what happened in individual stillbirth cases is understood and reassurance that lessons will be learned, with fewer stillbirths therefore taking place over time.

The clause provides the opportunity to do just that. It requires the Government to review fully whether, and if so, how, coroners should investigate stillbirths, and then, I hope, to do something about it. I certainly agree with the Government that we need to explore thoroughly the full range of issues involved in such a change. We must act on this in a considered manner. The clause ensures that the Government will give the issue the consideration that I and many others believe it deserves. However, once it is clear what needs to be done to enable coroners to investigate these deaths, the Government should act quickly. The clause allows for that, too, which partly addresses the point made by the hon. Member for Harrow West.

The clause gives the Lord Chancellor the power to make regulations that would amend part 1 of the 2009 Act to enable or require coroners to conduct investigations into stillbirths. It also allows for regulations to provide for the purpose of those coroners’ investigations into stillbirths, which is necessary because, for example, it may be appropriate to investigate a stillbirth even when it was caused by a natural process; coroners rightly do not do so when other deaths are caused by a natural process. I want coroners to have the right and proper duties to investigate stillbirths and do not want to restrict the power to make regulations in a way that prevents that.

The clause also provides for regulations that could limit the circumstances in which investigations are to take place. For example, regulations could provide for a power or a duty to investigate only stillbirths of more than a specified gestation. It may not be necessary for every stillbirth to be in the scope of a coroner’s investigation, such as those that occur when the pregnancy has reached full term. The clause provides that regulations may not create criminal offences, other than by applying or making an equivalent or similar provision to a provision already contained in part 1 of the 2009 Act. That allows the offences in schedule 6 of the Act to apply to investigations into stillbirths, but ensures that the power will not be used too widely.

I know that there are often concerns, both here and in the other place, about giving powers to Ministers to make regulations that directly amend primary legislation. We have heard a lot about that in relation to Brexit recently. However, I believe that my clause, as well as making supplementary provisions for regulations, which I will speak about shortly, contains the right safeguards to ensure that the power is used appropriately. First, any regulation that will amend primary legislation must be voted on by both Houses. Secondly, I have provided a sunset clause that provides that the power to make investigation regulations will cease if it has not been exercised within five years of publication of the Government’s report, which the clause requires.

I consider that the delegated power to make regulations is necessary, and I know that the Government supports that. It enables detailed provisions to be made in a timely manner after the Government have published their report of the review required by the clause. That report will necessarily consider the views of stakeholders and a broad range of issues that need to be thought through and properly considered before any changes are made. It will enable us to be sure that, if regulations are made, they are the right ones.

I understand that the Ministry of Justice and the Department of Health and Social Care have together already begun to consider this issue in some detail, and that they have engaged with a wide range of people with an interest and expertise in this area. I have already had some preliminary reports on that.

Any change involving coroners’ investigations will not replace the important role that the NHS plays here already. It will supplement and support it, and will ensure that coroners can contribute to the learning and to playing a role in reducing the stillbirth rate. I urge the Committee to allow the clause to stand part of the Bill.

Photo of David Drew David Drew Shadow Minister (Environment, Food and Rural Affairs) 4:15 pm, 18th July 2018

Just so I am absolutely clear, is the hon. Gentleman saying that the matter can be handled through regulation, and the whole matter will be clarified? Or will we have to revisit it?

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

The clause is an enabling clause. It gives Ministers the power to give authority to coroners to investigate stillbirths. It empowers them to do that by amending the 2009 Act; the matter would not need to be revisited. The exact terms on which Ministers will give the power is subject to the report that is being prepared.

To return to the hon. Gentleman’s amendments, the work is happening now and a number of coroners have contributed to it, including the West Sussex coroner, Penelope Schofield, who brought the issue to me and asked me to include it in the Bill in the first place. She has been impressed by the input of the officials involved, and by the progress that the group preparing the report is making. For example, there seems to be a consensus for giving coroners powers to investigate full-term stillbirths—at 37 weeks onwards. Those are the ones that might be considered least likely, in comparison to those closer to 24 weeks, when the position is more delicate, and therefore more questions need to be asked. In some cases it might require a coroner to ask those questions.

That is probably a good starting point, and if, with experience of coroners investigations, it appears that the term in question should be brought forward, the issue can be revisited later. However, an important starting point is set out, which will give confidence to parents who have suffered a stillbirth that in a small number of cases—it is not a question of flooding coroners with an awful lot of additional work—if the questions have not been answered, the full independence and weight of open inquiry that a coroner can bring to bear will be available to them.

Coroners have made it clear to me that they are sufficiently resourced to deal with the likely demand. As well as being important for parents, the change could mean a financial saving, because getting to the bottom of why many stillbirths happen would make it possible to learn more. We might avoid some long drawn-out and contentious legal cases, on which the NHS pays out a lot of money.

For the reasons I have set out, I urge hon. Members to support the clause—and amendment 15 to the long title. I hope that my assurances will enable the hon. Member for Harrow West to withdraw what he says, because the intention is for coroners to do the work. I think that there was a worry that it would not be coroners, but the measure is all about coroners.

There has been good progress with the report, and I hope that more information may come back even before Report, to be confirmed in the Bill. However, the clause is an enabling clause that would give the Secretary of State the power to allow coroners to investigate stillbirths.

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department, Minister for Women

I shall speed through, in view of the time. I assure the Committee that the Government agree completely that there is a need to look at the role coroners could play in investigating stillbirths. A great deal is already being done. For example, improvements are already under way in the NHS, including the newly-established Healthcare Safety Investigation Branch, which investigates full-term intrapartum stillbirths, neonatal and maternal deaths, and severe brain injuries that occur during labour. The improvements meet the Royal College of Obstetricians and Gynaecologists criteria for the Each Baby Counts programme. However, we agree that we should look at how coroners may add to that learning and to prevention of stillbirths in the future.

The Government have already committed to looking into the question of coroners investigating full-term stillbirths and support the requirement in the clause that a report is prepared before we make any changes. There are important and sensitive issues to explore, including what powers a coroner should have to undertake any investigation such as the ordering of post-mortems and when any duty to investigate should apply. We also need to consider how we can maximise the learning from each coroner’s investigation.

Our concern is that amendment 17 would prejudge the findings of the report and the discussions that the Government are having with the many stakeholders in this area. We would not be able to look at whether there should be a role for coroners; it rather assumes that there should be one. We submit respectfully that that is not the correct approach. While many bereaved parents who may have had difficult experiences will want a coroner to carry out an investigation into stillbirths, we need to consider alternative experiences. Some parents may find the formal coronial process too distressing—it may be too much for them on top of the investigation the NHS would carry out—and they may want the official processes to be over so they can find the wherewithal to deal with their grief. They may not want to go through an additional official process before they begin to mourn.

On amendment 18, while the Government agree that we should move quickly, we must not be constrained in time to reach the right conclusions, which are what every member of the Committee is concerned to achieve. It is important that the report is thorough and all views are considered carefully. We want to explore in detail whether and in what circumstances a coroner may investigate stillbirths, and that will take some time. We are not dragging our feet. We have already begun the review on which my hon. Friend the Member for East Worthing and Shoreham has given some details. That demonstrates our commitment to making progress as quickly as possible and, if change should be made, to make it in a timely manner. While I cannot commit to timescales, I consider that good progress is being made.

Officials have already engaged with a number of stakeholders, including bereaved parents, the Chief Coroner and senior coroners, medical professional bodies and organisations involved in research and support to those who have experienced stillbirth. I thank all those who have given their time for that. Once the report has been published, clause 4 will provide the Lord Chancellor with a power to amend part 1 of the 2009 Act to enable or require coroners to conduct investigations into stillbirths. The Government support the clause and invite the hon. Member for Harrow West to withdraw his amendment.

Photo of Gareth Thomas Gareth Thomas Party Chair, Co-operative Party

As I said in my opening remarks, these are probing amendments. I hope that before we get to Report the Minister might be willing to brief my hon. Friend the Member for Nottingham South on the progress of the review and where the Government’s initial thinking is on that. That would be helpful and would give confidence to the hon. Member for East Worthing and Shoreham that the Opposition, who support my hon. Friend’s work in this area, would not want to delay the Bill further.

Amendment, by leave, withdrawn.

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham 4:30 pm, 18th July 2018

I beg to move amendment 3, in clause 4, page 2, line 23, leave out subsection (4).

This amendment and Amendment 4 make a drafting change in response to Amendments 5 and 7 and NC3.

Photo of Virendra Sharma Virendra Sharma Labour, Ealing, Southall

With this it will be convenient to discuss the following:

Amendment 4, in clause 4, page 2, line 26, leave out “Investigation regulations may” and insert

‘After the report has been published, the Lord Chancellor may by regulations’.

See the explanatory statement for Amendment 3.

Amendment 5, in clause 4, page 2, line 36, leave out subsection (6).

This amendment is consequential on NC3.

Amendment 6, in clause 4, page 2, line 43, leave out “Investigation” and insert “The”.

This amendment is consequential on Amendments 3 and 4.

Amendment 7, in clause 4, page 3, line 6, leave out subsections (8) and (9)

This amendment is consequential on NC3.

Amendment 8, in clause 4, page 3, line 10, leave out “investigation regulations may be made” and insert

‘regulations may be made under this section’.

This amendment is consequential on Amendments 3 and 4.

New clause 3—Supplementary provision about regulations—

‘(1) The Secretary of State may by regulations—

(a) amend the Marriage of British Subjects (Facilities) Acts 1915 and 1916 so that they no longer apply in England and Wales;

(b) make other provision in consequence of regulations under section (Marriage registration).

(2) The Lord Chancellor may by regulations make provision in consequence of regulations under section 4.

(3) Regulations under subsection (1) or (2) may include provision amending, repealing or revoking provision made by or under primary legislation (whenever passed or made).

(4) Regulations under this Act may make—

(a) different provision for different purposes;

(b) provision generally or for specific cases;

(c) provision subject to exceptions;

(d) incidental, supplementary, transitional, transitory or saving provision.

(5) Regulations under this Act are to be made by statutory instrument.

(6) A statutory instrument that contains (with or without other provision) regulations under this Act that amend, repeal or revoke any provision of primary legislation may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(7) Any other statutory instrument containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.

(8) In this section—

“primary legislation” means—

(a) an Act of Parliament;

(b) an Act of the Scottish Parliament;

(c) an Act or Measure of the National Assembly for Wales;

(d) Northern Ireland legislation;

(e) a Measure of the Church Assembly or of the General Synod of the Church of England;

“Registrar General” has the meaning given by section (Marriage registration)(7).’.

This new clause makes supplementary provision about regulations under the Act.

Amendment 9, in clause 5, page 3, line 13, at end insert

‘only, subject to subsection (1A).

‘(1A) Section (Supplementary provision about regulations) and this section extend to England and Wales, Scotland and Northern Ireland.’.

The amendment enables consequential amendments to be made to UK-wide legislation (even though the substantive changes to the law will relate to England and Wales only).

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham

We are almost there. Amendments 3 to 7 are minor technical amendments to clause 4 to improve the drafting in light of the amendments to clause 1, although those do not materially affect the operation of the provisions. Amendments 9 and 10 amend clause 5: Extent, commencement and short title. Amendment 9 enables consequential amendments to be made to UK-wide legislation, although the substantive changes to legislation relate to England and Wales. Amendment 10 makes provision for the Bill to come into force two months after the Bill receives Royal Assent, which is pretty good.

New clause 3 makes supplementary provision about regulations under the Act. Paragraph (1)(b) of the new clause enables the Secretary of State to make consequential provision in respect of regulations amending the Marriage Act 1949 made under clause 1 of the Bill. Paragraph (1)(a) of the new clause contains the power to make a consequential amendment that enables the Secretary of State to amend by regulations the rarely used Marriage of British Subjects (Facilities) Acts 1915 and 1916 so that they no longer apply in England and Wales.

Subsection (2) of the new clause is a technical measure to make an equivalent power in clause 4(6) of the Bill to the new clause for the sake of good drafting. The power enables the Lord Chancellor to make consequential provision in respect of regulations amending part 1 of the Coroners and Justice Act 2009 made under clause 4. Regulations made under subsections (1) or (2) may include provision to amend, repeal or revoke provisions made under primary legislation. Hon. Members may wish to note that the amendment changes the Henry VIII power, limiting the power to consequential amendments rather than incidental or supplemental ones. This is in line with the marriage registration powers. It limits powers to those that in practice are likely to be used, rather than allowing a wider power. It also amends the parliamentary procedure so that only regulations that amend, repeal or revoke any provision in primary legislation will be subject to the affirmative resolution procedure, ensuring oversight in both Houses of Parliament by virtue of subsection (6) of the new clause. It is as simple as that, Mr Sharma, with apologies to Hansard. [Laughter.]

Amendment 3 agreed to.

Amendments made: 4, in clause 4, page 2, line 26, leave out “Investigation regulations may” and insert

“After the report has been published, the Lord Chancellor may by regulations”

See the explanatory statement for Amendment 3.

Amendment 5, in clause 4, page 2, line 36, leave out subsection (6)

This amendment is consequential on NC3.

Amendment 6, in clause 4, page 2, line 43, leave out “Investigation” and insert “The”

This amendment is consequential on Amendments 3 and 4.

Amendment 7, in clause 4, page 3, line 6, leave out subsections (8) and (9)

This amendment is consequential on NC3.

Amendment 8, in clause 4, page 3, line 10, leave out “investigation regulations may be made” and insert ‘regulations may be made under this section’.

This amendment is consequential on Amendments 3 and 4.

Clause 4, as amended, ordered to stand part of the Bill.

Clause 5