Clause 37 - Discontinuance of investigation where cause of death becomes clear

Judicial Review and Courts Bill – in a Public Bill Committee at 11:45 am on 18th November 2021.

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Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith 11:45 am, 18th November 2021

I beg to move amendment 69, in clause 37, page 49, line 33, at end insert—

“(4) After subsection (2), insert—

(2A) The coroner is not to decide that the investigation should be discontinued unless—

(a) the coroner is satisfied that no outstanding evidence that is relevant to the death is available,

(b) the coroner has considered whether Article 2 of the European Convention on Human Rights is engaged and is satisfied that it is not,

(c) there are no ongoing investigations by public bodies into the death,

(d) the coroner has invited and considered representations from any interested person known to the coroner named at section 47 (2)(a) or (b) of this Act, and

(e) all interested persons known to the coroner named at section 47 (2)(a) or (b) of this Act consent to discontinuation of the investigation.”.

This amendment would ensure that certain safeguards are met before a coroner can discontinue an investigation into a death.

Photo of Mark Hendrick Mark Hendrick Labour/Co-operative, Preston

With this it will be convenient to discuss the following:

Amendment 70, in clause 37, page 49, line 33, at end insert—

“(4) After subsection (2), insert—

(2B) If a coroner is satisfied that subsection (1) applies and has complied with the provisions at subsection (2A)(a) to (d), prior to discontinuing the investigation, the coroner must—

(a) inform each interested person known to the coroner named at section 47(2)(a) or (b) of this Act of the coroner’s intended decision and provide a written explanation as to the reasons for this intended decision,

(b) explain to each interested person known to the coroner named at section 47(2)(a) or (b) of this Act that the investigation may only be discontinued if all such interested persons consent, and

(c) invite each interested person known to the coroner named at section 47(2)(a) or (b) of this Act to consent to the discontinuation of the investigation.”.

This amendment would ensure that family members and personal representatives of the deceased are provided with the coroner’s provisional reasons for why the coroner considers that the investigation should be discontinued, to ensure that family members can make an informed decision as to whether to consent to the discontinuation.

Amendment 71, in clause 37, page 49, line 33, at end insert—

“(4) Omit subsection (4) and insert—

(4) A senior coroner who discontinues an investigation into a death under this section must—

(a) as soon as practicable, notify each interested person known to the coroner named at section 47(2)(a) or (b) of this Act of the discontinuation of the investigation and provide a written explanation as to why the investigation was discontinued, and

(b) if requested to do so in writing by an interested person, give to that person as soon as practicable a written explanation as to why the investigation was discontinued.”.

This amendment would ensure that family members are informed in writing for the reasons for a discontinuation of an investigation, without being required to request this information.

Amendment 72, in clause 37, page 49, line 33, at end insert—

“(4) Section 43 of the Coroners and Justice Act 2009 (Coroners regulations) is amended as follows.

(5) In subsection (3) after paragraph (a) insert—

“(aa) provision for the establishment of an appeals process for interested persons who disagree with the decision to discontinue an investigation under the provision in section 4 of this Act.”.

The purpose of this amendment is to ensure the Lord Chancellor establishes an appeal process for families who disagree with the decision to discontinue an investigation.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

We now come to the part of the Bill that deals with coroners, to which we have tabled a number of amendments and new clauses. We appreciate that the clauses in the part of the Bill we have just discussed, and indeed in other parts of the Bill, are very much a template for the Government to take forward procedural changes to parts of the courts and tribunal systems. We essentially have two things to say about that.

First, we are not against any of that per se, particularly where the aim is to make what is proposed more streamlined, efficient and economical. However, we must look at safeguards, because often in the process, as we have seen in earlier parts of the Bill on criminal procedure and online procedure, there can be dangers to current users of the system that need to be addressed. Secondly, as addressed in our new clauses, the Government are not short of advice on improvements to the coronial system, including most recently through the report of the Justice Committee, which we debated in Westminster Hall, but many opportunities for improvement simply have not been taken. We highlight some of those around representation, and vulnerable representation, which we will come on to. That is disappointing, given that that report is only the latest in a whole series, going back to Tom Luce’s report in 2003—although there are many more recent than that—that have drawn attention to the limitations and the need for improvements in the coroners system. We just wish that there was more to address that, either in the Government’s response to the Justice Committee report or in the Bill.

I thank some of the organisations that provided briefings to us, including Justice, the Association of Personal Injury Lawyers and, principally, Inquest, which I will say a bit more about when we debate the new clauses. It has been an outstanding organisation in representing, and fighting the cases of, bereaved families for many years.

I have concerns about clauses 37 to 39. Clause 37 will broaden the circumstances in which coroners can discontinue investigations, Clause 38 gives coroners powers to hold inquests in writing, and clause 39 enables the wider use of remote hearings, including the power to hold remote hearings with juries. I will argue that the increase in discretion to discontinue investigations in clause 37 risks important evidence not being tested and complex cases not being publicly scrutinised. I will describe the lack of evidence to support the introduction of clauses 37 to 39 and how evidence instead suggests the need for careful safeguards to ensure that proper investigation and scrutiny is permitted where necessary, with due weight given to the wishes of the family. I will also argue that the Bill should be amended to include provision on public funding for bereaved families at inquests where state bodies are involved.

Chapter 4 deals with coroners and suggests that it will improve the efficiency of the service in the light of the backlogs in coroners’ courts due to the pandemic. The measures in clauses 37 and 38 were recently recommended by the Chief Coroner in his 2020 annual report. I am not aware of some other cause or evidence— the Minister may want to point me to some—for these measures to be introduced. It is notable that none of the conclusions or recommendations in the Justice Committee’s May 2021 report on the coroner service provides any justification for these measures, despite the Committee’s detailed analysis of the current state of the coronial system. It is extremely concerning that the argument that these measures are needed to address the covid-19 backlog of cases in the coroners’ courts is unevidenced, especially given the strong argument that the measures will lead to corners being cut and crucial opportunities for hearing and scrutinising evidence missed.

In its report, the Justice Committee found there to be

“unacceptable variation in the standard of service between Coroner areas.”

In the absence of a national coroner service, which the Committee recommended but the Government have refused, a central concern is the widespread inconsistency in approach by individual coroners in relation to all aspects of the inquest process—a postcode lottery, in other words.

Photo of James Cartlidge James Cartlidge Parliamentary Under Secretary of State (Ministry of Justice)

The hon. Gentleman has twice referred to the backlog in coroners’ courts caused by the pandemic. Can I be absolutely clear? Does he accept that the pandemic has had a very significant impact on the backlog in the coroners’ courts?

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

The pandemic has had a substantial effect on almost every aspect of our waking lives and on backlogs throughout the court system. That does not abrogate the Government from responsibility for dealing with the backlog so called, or indeed for other reasons why backlogs have been building up in the system over that time.

I mentioned Tom Luce’s fundamental review, in which he wrote:

“The phrase we have heard more than any other during the Review is ‘the coroner is a law unto himself’. Virtually every interest has complained of inconsistency and unpredictability between coroners in the handling of inquests”.

Clauses 37 and 38 will further entrench levels of coronial discretion and inconsistency, adding yet more challenges for bereaved families forced to navigate the inquest system. The Government have not evidenced how these measures will address the stated problem of reducing the backlog of cases in coroners’ courts. The latest statistics on the coroner service indicate an 18% rise in deaths in state detention. Many of those cases are complex, meaning that these provisions are unlikely to apply.

Let me deal specifically with amendment 69 and amendments 70 to 72, with which it has been grouped. Clause 37 broadens the circumstances in which a coroner might discontinue an investigation into a death. The current law, the Coroners and Justice Act 2009, holds that where a coroner has commenced an investigation, they must proceed to an inquest unless the cause of death becomes clear in a post-mortem examination. The Government claim that is a costly and unnecessary step where the cause of death may become clear through other means, such as medical records. As such, clause 37 will amend section 4 of the 2009 Act to allow for an investigation to be discontinued if the coroner is satisfied that the cause of death is clear, thus removing reference to a post-mortem as a necessary requirement for discontinuing an investigation. If the investigation is discontinued, the coroner cannot then hold an inquest into the death unless fresh evidence later comes to light or a successful challenge is brought to the decision.

There are a number of concerns about that, and about the implications of the Bill for inquests and bereaved families. Amendment 69 seeks to address three main issues: the need to test evidence; what happens in article 2 cases; and the need to safeguard the wishes of families.

On the need to test evidence, I am concerned that clause 37 would allow a coroner to discontinue an inquest based on evidence that could change if tested. The current wording states that a coroner must discontinue an investigation into an individual’s death if they are

“satisfied that the cause of death has become clear in the course of the investigation”.

While the Chief Coroner states in his 2020 annual report that such a provision could include evidence such as medical records, the Bill itself does not clarify the types of evidence that could be used, and effectively allows any evidence obtained during the investigation to be used to justify discontinuance, without the opportunity for it to be challenged at a later stage.

Clause 37 therefore requires amendment to set out a series of safeguards to be met before an investigation into a death is discontinued. Such an amendment should ensure that investigations are not terminated prematurely where there may be evidence that could change once tested.

My second point, regarding article 2 cases, can be illustrated well by the case of Laura Booth. Laura sadly died on 19 October 2016 at the Royal Hallamshire Hospital in Sheffield. Laura went into hospital for a routine eye procedure, but in hospital she became unwell and developed malnutrition due to inadequate management of her nutritional needs. The coroner overseeing the investigation into Laura’s death was initially not planning to hold an inquest because the death was seen to be from natural causes. However, Laura’s family and BBC journalists fought for the coroner to hold an inquest.

The inquest reached the hard-hitting conclusion that Laura’s death was contributed to by neglect. A prevention of future deaths report issued by the coroner to the Royal Hallamshire Hospital noted serious concerns about the staff’s lack of knowledge and understanding of the Mental Capacity Act 2005, and recommended that families should be better consulted in best-interests meetings.

If clause 37 had been applied to that case before evidence brought by Laura’s family and journalists was properly scrutinised, there may never have been an inquest hearing. The serious failings in Laura’s case would never have been brought to light and a prevention of future deaths report, which serves a significant public interest in attempting to stop similar deaths occurring in the future, would not have been published.

We ought also to consider the case of A, who died in hospital. A, who was admitted to hospital as a voluntary patient, had learning difficulties and a history of mental ill health. A’s family waited several years for the inquest into A’s death to begin. Prior to that, A’s death was believed to be from natural causes, meaning that it would not have been subject to an inquest. However, A’s family worked with lawyers who successfully argued that the case engaged article 2 and that an inquest should be held. Consequently, the coroner found that A’s death was not in fact natural but that there were major failures in treatment and a missed opportunity to provide proper care. Had the coroner been able to discontinue the inquest prior to considering whether article 2 was engaged, we believe it unlikely that the case would have proceeded to a full inquest hearing.

The consequences of clause 37 that I have outlined could have a significant impact in cases involving the death of an individual in the community who was receiving state support, or a so-called natural causes death of a detained person. While such cases are often viewed as non-contentious and believed not to require an inquest, it is common for evidence to emerge during the process to suggest that further scrutiny is required. These cases are often borderline article 2 cases, meaning there has been some argument over whether the case breaches the operational or systemic duty to safeguard the right to life under the Human Rights Act.

Where article 2 is found to be engaged, the scope of an inquest is widened to include an investigation of the wider circumstances of the death. If clause 37 were used in such cases and an inquest hearing discontinued, there would be no hope of renewing submissions on article 2 if evidence were to emerge, as it often does, that engaged it. Clause 37 therefore must be amended to ensure that the coroner has considered whether article 2 is engaged and is satisfied that it is not.

The last point that I want to raise about clause 37 is the importance of the consent of bereaved families. The clause includes no safeguards that would ensure that the coroner has invited and considered submissions from bereaved families and asked for their consent to discontinue the investigation. Some of those considerations are included in clause 38, which we will come to in a moment, so it is not clear why they are not set out in clause 37. We believe that this inconsistency must be addressed, and clause 37 amended, to ensure that the wishes of bereaved families are taken into account in the decision by the coroner and that the family have an ultimate veto on the decision to discontinue an inquest.

Amendment 69 would act as a safeguard to ensure that investigations are not terminated prematurely where there may be evidence that could change once tested. The amendment aims to ensure that an investigation into a death is not discontinued before all available evidence, including that which might be disclosed as a result of investigations by public bodies, has been explored. It would also ensure that the possibility of article 2 being engaged is fully considered, that the wishes of the family are taken into account in the decision by the coroner, and that the family have an ultimate veto on the decision to discontinue.

Inquests have a vital role for bereaved family members in understanding the circumstances of their loved one’s death. Clause 37 risks undermining that role. Bereaved families should have an ultimate veto on a decision to discontinue an investigation, and amendment 69 provides a mechanism for ensuring that the wishes of the bereaved family and personal representatives of the deceased are properly considered and respected, which would help to ensure that a family member’s concerns about the death are made available to the coroner.

In addition, it is key that bereaved families can make informed decisions about whether to consent to an investigation being discontinued. Bereaved families should be fully informed of the reasons a coroner considers that the cause of death has become clear. Amendment 70 would build on amendment 69 in introducing new subsection (2B) to section 4 of the Coroners and Justice Act. That would ensure that family members and personal representatives of the deceased are provided with a coroner’s provisional reasons for considering that the investigation should be discontinued, thus helping family members to make an informed decision on whether to consent to the discontinuation.

If the amendments are not accepted, the Coroners and Justice Act should be amended to ensure that family members and personal representatives of the deceased are always informed of the reason for a coroner’s decision to discontinue an investigation. The Justice working party’s report into inquests and inquiries found that often bereaved families are not uniformly given reasons for the decision to discontinue an investigation. That can leave families confused and unsure whether to challenge the decision.

Section 4(4) of the Coroners and Justice Act requires senior coroners to provide an interested person reasons in writing for the discontinuation of an investigation only if requested to do so. Given that clause 37 introduces a theoretically unlimited number of situations where an investigation could be discontinued, and the difficulties that many bereaved families have in engaging with the inquest process, amendment 71 seeks to ensure that family members are informed in writing of the reasons for the discontinuation of an investigation without being required to request that information.

I turn to amendment 72. A family may have a legitimate reason not to agree with a decision to discontinue an investigation. Currently, a coroner’s decision can be challenged only at the High Court. That can be expensive and time consuming for bereaved families. Instead, there should be an easily accessible appeal process for families who want an investigation to continue. I imagine that the Government will have little objection to that, given their efforts in recent weeks to set up an appeal process for MPs—unless the Government think that they should have more bites of the cherry than families at inquests, who do not even have one right of appeal. That is an anomaly in the system, which was addressed in the Justice Committee’s report. The Government show no inclination at the moment to agree to it, but the Minister may have news for us.

The experience of the family of Noreen Clements shows why an appeal process could be so important for bereaved families. Mrs Clements suffered a fractured pelvis after falling in hospital, and died two weeks later. Despite the family’s belief that the fall contributed to her death, it was not recorded by the doctors who completed the medical cause of death. Mrs Clements’ family were fortunate that the coroner listened to their concerns and instructed an independent expert, who eventually agreed with the family. That resulted in changes being made to the hospital’s procedures. Under the Government’s proposals, another coroner may have been satisfied with the medical cause of death. The investigation may have been discontinued before an inquest could be held, leaving the family without the answers that they needed and missing a learning opportunity for the hospital. An appeal process could help to ensure that that does not happen.

In the Bill, the Government are repeatedly tightening and closing, and pushing to reduce, the service that is currently available and move a large section of it online. There has to be a level of compensation that comes with that change. I argue that the Government should consider it coming in the form of a proper appeal process for families. Amendment 72 would ensure that the Lord Chancellor establishes an appeal process for families who disagree with a decision to discontinue an investigation.

Photo of James Cartlidge James Cartlidge Parliamentary Under Secretary of State (Ministry of Justice) 12:00 pm, 18th November 2021

As ever, the hon. Gentleman makes a number of interesting points. Some of them go quite a bit wider than the clause before us, although he did enter the caveat that, given the importance of this clause, he was making some broader points, and I think that is fair. Taken together, these provisions are very important in terms of the coronial court. They do address matters relating to streamlining and ultimately, therefore, the backlog; and before I go into the specific points that he raised, some of which were very sensitive and very important, I want to talk about the backlog.

What the hon. Gentleman said was incredibly important. He specifically acknowledged that covid is responsible in large part—or however he wants to couch it—for the backlog in the coroners’ courts, and he is absolutely right. Let us be absolutely clear about this: social distancing has had a dramatic impact in the courts, particularly where juries are concerned. That is true in the Crown court. It is true in the coronial court. It is simple maths. The coroners’ buildings were not designed suddenly to have a rule about 2 metres, which was there, after all, for everyone’s public health benefit. The coroner’s house in Sunderland, for example, has capacity for, I believe, 54 persons in the courtroom. With social distancing, it had 11, so it does not take a great leap of imagination to work out how much harder it would have been to dispose of cases with a jury.

Photo of Dr Caroline Johnson Dr Caroline Johnson Conservative, Sleaford and North Hykeham

In support of the Minister’s point, I can say that during my visit to a Crown court last week, there were five defendants who would normally be sat in the same dock in the courtroom, but because of social distancing, a separate courtroom and separate dock are having to be used just to hold the extra defendants, which means, of course, that that courtroom cannot be used for anything else.

Photo of James Cartlidge James Cartlidge Parliamentary Under Secretary of State (Ministry of Justice)

I am grateful to my hon. Friend. Was it Lincoln, by any chance?

Photo of James Cartlidge James Cartlidge Parliamentary Under Secretary of State (Ministry of Justice)

Ah! I asked because my hon. Friend is obviously a Lincolnshire MP. She is absolutely right. Since I got this job—I have been in post only a matter of weeks—I have visited Crown courts and magistrates courts around the country, and to someone who has not been to one recently, it is very striking to go to a Crown court and see the limitations caused by social distancing. We are trying to deal with those, but it has been a job of work to deal with them.

Photo of Dr Caroline Johnson Dr Caroline Johnson Conservative, Sleaford and North Hykeham

I just wonder whether my hon. Friend could update me on what work he is doing with the Department of Health and Social Care to alleviate some of these restrictions. Now that we sit next to one another in, for example, the House of Commons Chamber, is the social distancing measure still required?

Photo of James Cartlidge James Cartlidge Parliamentary Under Secretary of State (Ministry of Justice)

There are some very good examples. There are one or two that we are working on at the moment, which I will go into more detail about at the appropriate moment. But the most important thing by far is that many existing courtrooms in the Crown court have come back into use as social distancing has reduced. For example, I was visiting Highbury magistrates, where the maximum number of people in the building had been lifted, because, for example, when people arrive to be allocated to cases—there are all kinds of reasons why we have lots of people in a court building—the capacity in itself becomes a significant constraint.

I appreciate that this provision is about coroners, but what I am describing is fundamental to the current debate. I could not care less, frankly, what people say on Twitter. They are all predetermined—there is not a single swing voter out there. But the Labour party has now strongly put forward a message, effectively, that the backlog in the Crown court is not because of covid but because of this Government. I find that wholly disingenuous. It is not only inaccurate—the hon. Member for Stockton North is shaking his head. It is not only inaccurate; it therefore conveys a false sense of the reality on the ground.

Let me give a statistical example. On 31 December 2009, the outstanding case load—what we have generally come to call the backlog, although there is always an outstanding case load—was 47,713. In December 2019, it was 38,291. Surprise, surprise: when courts were closed because of social distancing and jury trials suspended—although we restored them as quickly as possible—that figure shot up. It created a huge bottleneck. And we still have those problems. It really matters what we say on this, because people must understand the extent to which the pandemic has hit our ability to dispose of cases, because obviously it therefore dictates the solutions. On this side, as my hon. Friend the Member for Sleaford and North Hykeham said, that has meant, for example, trying to lift restrictions where we can, which I think is very important. Therefore I am grateful that, in the matter of coronial courts, the hon. Member for Hammersmith has put on the record his recognition of the impact of covid on the backlog.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith 12:15 pm, 18th November 2021

The sensitivity of this is pretty clear. We have suddenly veered off to talk about backlogs in the Crown court. There will be ample opportunity to debate those matters in future. The relationship between backlogs and covid is a complicated one. No one is saying, clearly, that covid has not put pressure on the courts system—that would be bizarre—but the Minister is misinterpreting what I said. The Government have two responsibilities here. First, they must look at their responsibility for the extraordinary cuts in justice budgets that occurred post 2010, long before covid was ever thought of. For a whole raft of reasons to do with lack of legal aid, court availability because of court closures and so on—the Minister knows all the arguments—we have put ourselves in that vulnerable position, as we did in other areas, such as the NHS. The fact that the court service, including the coronial service, is in a parlous state is at the door of the Government—the Minister was not there, but his colleagues were in government during that time. So, first, they must take responsibility for that. Secondly, they must now take responsibility for reducing backlogs, whether they were caused by covid or were pre-existing before covid. Trying to exculpate himself from that, he does himself no service.

Photo of James Cartlidge James Cartlidge Parliamentary Under Secretary of State (Ministry of Justice)

I look forward to debating that further. Labour have pulled their Opposition day debate on the backlog twice, one of which was for good reason, given the business that the House was debating. I will be delighted if they have an Opposition day debate on the backlog at their next opportunity, because it is important to stress the very positive things that the Government are doing.

The reason I made that point is that the whole purpose of the provisions is to streamline the courts in the coronial system, so of course it matters if the hon. Member for Hammersmith accepts covid causation in the coronial courts backlog and yet, for political reasons, the Opposition’s central message on backlog in the Crown courts magically does not relate to social distancing measures that have been so profoundly challenging to holding jury trials in particular and for cases with multiple defendants. But there we are. All I would add is that if he wants to go back to 2010, bring it on in that debate, because we know what their plans would have been had they got into government. He should always remember that.

On the specific points, I have great sympathy for those families who have had stressful cases in the coronial court or had cases in which they were disappointed with what happened. Obviously, as a Minister, I cannot comment on the specific cases raised by the hon. Gentleman. Those are determined by our independent judiciary, which is an important part of our constitution, but I sympathise with the families. Bereavement is an inherently distressing experience, we can all agree, and in part that is why we are trying where possible to address and reduce that anxiety with the measures in the Bill. For example, in this clause we are trying to reduce some of the bureaucracy that can come with bereavement.

The hon. Member for Hammersmith made a couple of other specific points about coroners’ courts and the Justice Committee report. He was recently a member of that Select Committee, and I pay tribute to his work on it, and to the Committee more broadly under the chairmanship of my hon. Friend Sir Robert Neill. Recently, I spoke about such matters at length in a Westminster Hall debate on coroners, but to be absolutely clear, we have accepted six of the recommendations made by the Justice Committee in its report on coroners published in May. To enact some in the Bill is incredible timing—to have Committee recommendations in a Bill within six months. The obvious example is clause 41, dealing with the merger of coroner areas, which we shall come on to.

The other important specific point that I wish to make is on safeguards. Again, the hon. Member for Hammersmith is absolutely right. As I have said throughout the Committee’s proceedings, streamlining measures—generally technological, but not always, as some might be in procedure or when a hearing is held and so on— are there to improve efficiency, and in itself that can actually help families. For example, if we reduce the need to hold an inquest, particularly because it has proven to be unnecessary because the cause of death was natural causes, that can remove some of the bureaucracy that can be faced by a bereaved family.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

If those safeguards exist, as the Minister says, why are they not on the face of the Bill? They are, at least in part, in clause 38, which we are going on to discuss, so why would the Minister not accept some or all of the safeguards that we propose?

Photo of James Cartlidge James Cartlidge Parliamentary Under Secretary of State (Ministry of Justice)

I will be addressing all the points, but the hon. Gentleman is right: clause 38 contains very significant safeguards.

The intention behind clause 37 is to provide coroners with the flexibility to discontinue an investigation into a death where a death from natural causes has become clear through means other than a post-mortem examination. It is intended that the clause will negate the need for unnecessary procedures and processes, freeing up capacity and resources for the coroner to concentrate on more complex cases. The clause should be read along with section 4 of the Coroners and Justice Act 2009, which it amends.

Amendment 69 proposes to introduce additional safeguards into clause 37, as discussed, by requiring additional conditions when a coroner seeks to discontinue an investigation into a death where the cause of death becomes clear in the course of investigation, which typically will be where medical evidence shows that the death was from natural causes. The safeguards include a requirement that the coroner seek consent from interested persons before discontinuing such an investigation. Although I understand the hon. Gentleman’s concerns, I would like to assure him that the amendment is not necessary. The 2009 Act already provides the safeguards that the amendment seeks to include in the Bill. Section 4 of the Act sets out instances where the coroner may not discontinue an investigation, which include violent or unnatural deaths, or deaths in custody or other state detention.

I also remind the hon. Gentleman that coroners are independent judicial office holders, and the way that they carry out investigations and inquests is a matter for them. Introducing a requirement for the coroner to seek consent from interested persons before making judicial decisions would be not only fettering their discretion but would, in effect, remove the decision from the coroner—that is, the judge, which is what they ultimately are—into the hands of an interested person or a number of interested persons. That is at odds with the most fundamental principle of judicial proceedings, which is that only the judge or the jury makes the decisions, having listened to all the arguments without fear or favour. We must be mindful that while interested persons have certain rights at the inquest, they do not control the inquest process or its investigations. That is for the coroner alone to determine, as a judicial office holder.

I would like to assure the Committee that in his capacity as judicial head of the coroner service, the Chief Coroner will provide guidance to coroners accompanying all changes, which we expect coroners will follow.

Amendment 70 proposes that the coroner gives interested persons an explanation as to why they are considering discontinuing an investigation, to enable them to make an informed decision about whether to consent to the discontinuance of the investigation. Section 4 of the 2009 Act, which clause 37 amends, already provides that a senior coroner must, on request, provide a rationale for the discontinuance of an investigation. We expect the coroner to work sensitively with bereaved families to address any concerns that they may have regarding the investigation into their loved one’s death. However, as I have said, the decision on the direction of the investigation, including consideration of any discontinuance, must be for the coroner alone. In any event, section 4 has a narrow remit. It is to permit the discontinuance of an investigation where natural causes are found to be the reason for the death, and not in any other instances. Every day, coroners make the decision not to investigate deaths reported to them that they determine are of natural causes. Section 4 expressly prohibits the coroner from discontinuing an investigation where the coroner has reason to suspect that the deceased died a violent or unnatural death, or died while in custody or otherwise in state detention. That position remains unchanged.

Amendment 71 goes slightly further and proposes to set out in primary legislation a requirement for the coroner to provide to the bereaved family a written explanation of why they have decided to discontinue an investigation, regardless of whether a request has been received from the bereaved family. As I have said, section 4 of the 2009 Act already provides that the coroner must provide a written explanation for discontinuing an investigation on request. We consider that that ensures that only family members who actually require the information will receive it, and that additional work is not required of the coroner when it is not needed. After all, these are streamlining measures. The Government’s intention behind the measures on coroners in the Bill is to reduce unnecessary procedures in coroners’ courts and unnecessary distress to bereaved families. The amendment runs counter to the Government’s intentions and would add additional administrative process to the system. Providing such information unsolicited could also unintentionally distress bereaved families, although I am not suggesting that that is the hon. Gentleman’s intention.

Finally, amendment 72 would require a separate appeals process to be established for bereaved families who would like to challenge a coroner’s decision to discontinue an investigation into the death of their loved one. Although I understand that the hon. Gentleman wishes to ensure that bereaved families have recourse to appeal if they are not happy with the coroner’s decision, I must remind him that there is already a route for bereaved families to challenge a coroner’s decision by seeking judicial review of the decision. In 2020, there were just 20 judicial reviews against coroners’ decisions, of which five got permission and two were successful at hearing.

Additionally, an individual may apply to the High Court, with the permission of the Attorney General, for an investigation to be carried out if the coroner has not held one, or for a fresh investigation to be held, for example if new evidence comes to light. The High Court will allow a fresh investigation only if it would be in the interests of justice, but importantly, there is no time limit for making such an application, which of course is not the case with judicial review. We therefore do not think it appropriate to set up a seemingly freestanding, separate appeals process to deal with this single element of coroners’ judicial decision making.

I hope that I have adequately addressed the hon. Gentleman’s concern and assured him that appropriate safeguards are in place. On that basis, I urge him to withdraw the amendments.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

That was a disappointing response from the Minister. I was looking for any or all of the following: an explanation of why there are not safeguards in the clause that go beyond what is in the 2009 Act; perhaps acceptance of some, if not all, of the suggestions that we have made; and at least reassurances that the Government will look at mitigation. It is undeniable that the effect of the processes set out in this part of the Bill is to make it more difficult for bereaved families to be active participants in the process when all the evidence is that we should be taking steps to facilitate that.

The Minister mentioned the recommendations of the Justice Committee. I can tell him that the Justice Committee was extremely disappointed with the Government’s response. I will not go into that in detail now—it is outside the scope of these amendments—but I will quote from the debate that we had recently in Westminster Hall:

“I counted at least seven major omissions from the Government’s response, and many of them have been mentioned already…One is the provision of non-means tested legal aid,” which we are coming on to.

“One is appeals on coroners’ decisions. One is the issue of pathologists’ fees. One is the national coroner service, which the report recommends. One is the inspectorate, which the report recommends. One is a complaints procedure. The last is the independent office.”—[Official Report, 28 October 2021; Vol. 702, c. 216WH.]

The significance of that is that, individually and collectively, those recommendations of the Justice Committee were trying to give some consistency and rigour to the way that coroners’ decisions are made. The reason I quoted Tom Luce was to point out that inconsistency has been the constant complaint over the years. Coroners, in a way that is not typical of the courts and tribunal system, can produce very anomalous responses to families in that situation.

The Government have chosen not to bring forward responses on the issues that I have mentioned that were raised in the Justice Committee report, and they have been generally quite negative about them, while not ruling all of them out. However, at the very least, we need the very specific safeguards that I have mentioned. Having heard everything that the Minister has said, we will press amendments 69 and 72 to a vote. I will not oppose the clause outright, but those amendments are, frankly, the least that is necessary to offer the safeguards that we have indicated.

Question put, That the amendment be made.

Division number 14 Judicial Review and Courts Bill — Clause 37 - Discontinuance of investigation where cause of death becomes clear

Aye: 5 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 5, Noes 7.

Question accordingly negatived.

Amendment proposed: 72, in clause 37, page 49, line 33, at end insert—

“(4) Section 43 of the Coroners and Justice Act 2009 (Coroners regulations) is amended as follows.

(5) In subsection (3) after paragraph (a) insert—

‘(aa) provision for the establishment of an appeals process for interested persons who disagree with the decision to discontinue an investigation under the provision in section 4 of this Act.’”—

The purpose of this amendment is to ensure the Lord Chancellor establishes an appeal process for families who disagree with the decision to discontinue an investigation.

Division number 15 Judicial Review and Courts Bill — Clause 37 - Discontinuance of investigation where cause of death becomes clear

Aye: 5 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 5, Noes 7.

Question accordingly negatived.

Question proposed, That the clause stand part of the Bill.

Photo of James Cartlidge James Cartlidge Parliamentary Under Secretary of State (Ministry of Justice)

Over the past year, the coronial system has shown great resilience in how it has coped with the impacts of the pandemic in ensuring that death investigations have continued as far as possible. I pay tribute to our coroners and all of those who work in the coronial system. We are, however, aware that a considerable number of inquests have been delayed due to the pandemic restrictions, and coroners, along with the Chief Coroner, are looking at post-pandemic plans to ensure that the system recovers.

We expect that the coronial measures introduced in the Bill will play a major role in the coronial system’s post-pandemic recovery, as they will reduce unnecessary procedures in coroner’s courts. This will provide capacity to coroners as they address inquest backlogs in their courts. The Government’s priority remains to ensure that bereaved families are at the heart of the coronial process. The measures in the Bill support this priority. Reducing unnecessary procedures in coroner’s courts will reduce the distress of bereaved families. Clause 37 gives the coroner the flexibility to discontinue an investigation where the cause of death becomes clear and it has been revealed through means other than a post-mortem examination.

Where the cause of death has become clear otherwise than through a post-mortem examination, clause 37 will negate the need for the investigation to proceed to an inquest, reducing the distress for bereaved families. The clause does not remove the statutory requirement for a coroner's investigation into deaths in custody or other state detention to proceed to an inquest. Inquests into such deaths will still be required to take place as usual. We expect that the Chief Coroner will issue further guidance on this and the other coronial measures to ensure consistency of approach across the coroner areas.

Question put and agreed to.

Clause 37 accordingly ordered to stand part of the Bill.