Clause 38 - Power to conduct non-contentious inquests in writing

Judicial Review and Courts Bill – in a Public Bill Committee at 12:30 pm on 18th November 2021.

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Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith 12:30 pm, 18th November 2021

I beg to move amendment 73, in clause 38, page 50, line 18, after “hearing” insert—

“(e) the coroner has considered the views of any of the interested persons named at section 47(2)(a) or (b) of this Act who are known to the coroner,

“(f) all of the interested persons named at section 47(2)(a) or (b) of this Act who are known to the coroner consent to a hearing in writing.”

This amendment will ensure that inquests are not held without a hearing if that is against the wishes of the deceased’s family.

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

With this it will be convenient to discuss the following:

New clause 10—Publicly funded legal representation for bereaved people at inquests—

‘(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.

(2) In subsection (1), after “(4)” insert “or (7).”

(3) After subsection (6), insert—

“(7) This subsection is satisfied where—

(a) The services consist of advocacy at an inquest where the individual is an Interested Person pursuant to section 47(2)(a), (b), or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased; and

(b) One or more public authorities are Interested Persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.

(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.””

This new clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.

New clause 11—Removal of the means test for legal help prior to inquest hearing—

‘(1) Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.

(2) In paragraph 41, after sub-paragraph (3), insert—

“(4) For the purposes of this paragraph, the “Financial resources” provisions at section 21 (and in The Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 do not apply.””

This new clause would remove the means test for legal aid applications for legal help for bereaved people at inquests.

New clause 12—Eligibility for bereaved people to access legal aid under existing provisions—

‘(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.

(2) In subsection (4)(a), after “family”, insert—

“or where the individual is an Interested Person pursuant to section 47(2)(m) of the Coroners and Justice Act 2009 because of their relationship with the deceased.”

(3) In subsection (6), after paragraph (c), insert—

“(d) or they fall within any of the groups named at section 47 (2)(a), (b) or (m) of the Coroners and Justice Act 2009.”

(4) Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.

(5) In paragraph 41, after sub-paragraph (3)(c), insert—

“(d) or they fall within any of the groups named at section 47 (2)(a), (b) or (m) of the Coroners and Justice Act 2009.””

This new clause would bring the Legal, Aid, Sentencing and Punishment of Offenders Act 2012 into line with the definition of family used in the Coroners and Justice Act 2009.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

As we move on to clause 38, I will speak to amendment 73 and the three new clauses about legal aid for representation and other matters.

Clause 38 gives coroners the power to hold inquests in writing where they decide that a hearing is unnecessary. Currently, rule 23 of the coroners’ rules allows for documentary inquests to take place, where no witnesses are required to give evidence but a hearing must still take place. Clause 38 would change that by creating a new section 9C to the Coroners and Justice Act 2009, allowing a coroner to hold an inquest entirely in writing. New section 9C does include a list of considerations that the coroner must make before deciding to hold an inquest in writing. They include ensuring that all interested persons have been invited to make submissions; considering whether an interested person has put forward “reasonable grounds” for a hearing to take place; and determining that there is no public interest in holding a hearing.

The key concern with clause 38 is that there may be circumstances in which the bereaved family wants an inquest with a hearing but a coroner deems one unnecessary. Other interested persons invited to make representations may argue against a hearing. Holding an inquest in writing in this context could deprive the family of the opportunity to explore all available evidence and limit their ability to scrutinise the account provided by relevant authorities, including by hearing oral evidence and questioning key witnesses.

It is acknowledged that clause 38 provides some safeguards in this regard. However, we believe that those safeguards are insufficient. For instance, clause 38 does not mention the need to consider the bereaved family’s wishes in terms and there is no guarantee that they will be given any weight in the coroner’s ultimate decision. Therefore, it is not clear that a family’s wishes would constitute the reasonable grounds needed to decide against conducting an inquest in writing. The current drafting of the Bill leaves a wide discretion to individual coroners to determine whether reasonable grounds for a hearing have been made out by a family.

Further, at the point where a family would be invited to make representations to the coroner on whether an inquest should or should not be held in writing, many families would not necessarily have legal representation to support them in making their views heard. That would put families at a disadvantage in comparison with other interested persons with the benefit of legal teams who were also invited to make representations and argue against a hearing.

I will refer to a particular case; my purpose is to illustrate the argument rather than deal with the specifics of the individuals concerned. Jessica died on 16 October 2020 at a women’s crisis centre called Link House. Jessica had mental ill health and had suffered from an eating disorder and depression for most of her adult life. The inquest into Jessica’s death was originally listed as a rule 23 documentary inquest. However, given emerging evidence that there were serious problems in Jessica’s care, representations were made to the coroner that the inquest should be adjourned. That request was granted, and a pre-inquest review is scheduled for later in the year, when lawyers will be able to argue that article 2 is engaged.

If clause 38 had applied in this case, Jessica’s family might have struggled to make clear their arguments that the coroner should proceed to an inquest hearing; an inquest in writing might have proceeded at the coroner’s discretion and against the family’s wishes. My amendment to clause 38 would ensure that the wishes of families are respected in decisions on whether to hold a paper-only inquest instead of having a hearing, as ordinarily happens. Some families may wish to have a hearing so that evidence can be fully aired and they have the opportunity to raise any concerns with the coroner directly. The amendment would ensure that inquests are not held without a hearing if that is against the wishes of the family of the deceased.

I move on to new clauses 10, 11 and 12. I start with a quote from Deborah Coles, the executive director of Inquest. She sums up the position we are in and why I am asking the Government to support the three new clauses on legal aid at inquests. Ms Coles says:

“It is now for the Government to put the experiences of bereaved people at the front and centre and ensure equality of arms, accountability, oversight and candour. There can be no more false starts, broken commitments or shelved recommendations.”

Ms Coles knows well what she is talking about. Inquest has worked on more than 2,000 cases and investigation processes, with 483 families currently needing their support after a bereavement. This work is done to secure more effective scrutiny of the state when people die. These are people who die in police custody, in prison cells, in health or social care settings, but also in major disasters such as Hillsborough and, more recently, Grenfell.

When these deaths occur, there is a fundamental inequality of arms when it comes to what follows. Inquests following state-related deaths are intended to seek the truth and to expose unsafe practices and abuses of state power. However, the preventative potential of inquests is undermined by the pitting of unrepresented families against multiple expert legal teams defending the interests and reputations of state and corporate bodies. What is more, bereaved families often struggle for legal representation, while public authorities have unlimited access to lawyers at the taxpayer’s expense.

I want to mention the intervention from Tim Loughton in the Westminster Hall debate on 28 October. The Minister was there replying for the Government. The hon. Gentleman himself, with the assistance of many, had to work to get to a situation where there was representation for the families in the Shoreham air show case. There were 18 different public bodies, all of which had legal representation. That is at the far end of what can happen, but it is not untypical for there to be not just one, two or three, but four, five or six different public bodies represented.

I did not accept the evidence of Mr Rebello. He made some very cogent points, which we will come on to in clause 39. Lawyers are employed to represent the interests of state parties. Yes, they will have a general duty, as all lawyers do, to assist the court, and, yes, they may, albeit asked by the court, assist unrepresented parties—or they will volunteer to—but that is not the norm. They are there to—and are paid to—represent their clients. They will, on the whole, make points that seek to exculpate their client from responsibility. To see that happening day-to-day, year-to-year, in the coroner’s courts, where families are pitted in that way, is deeply disturbing, frankly.

Families will face hospitals, police and local authorities and other public bodies that have legal representation, often funded by the public bodies. Where these bodies do not have representation, they will still likely have formal assistance through in-house legal professionals or specialist inquest officers—none of which is available to most families. At the very least, public bodies will have witnesses who are experienced professionals, such as doctors, who will still have been provided with advice from a legal team prior to the inquest. All this, and yet a family suffering a bereavement and dealing with the trauma surrounding the circumstances of the death and the inquest process are likely to be refused the same publicly funded legal assistance.

Legal aid will be granted only under the Government’s exceptional funding scheme if it is considered that there is a wider public interest in the inquest or if it is an article 2 inquest. As many of the Committee will know, an article 2 inquest is held when there is a death in state custody, or if it can be argued that the state failed to protect someone’s right to life. Furthermore, to be granted legal aid under this scheme, families must currently also meet a financial means test.

In the absence of legal aid, some lawyers help bereaved families by funding representation through a conditional fee agreement—or CFA—otherwise known as no win, no fee. This funding arrangement has to be linked with a separate civil claim for compensation. If a CFA is not possible, either legal representation is provided free of charge by a lawyer, which can be unsustainable for law firms, or a family has to fund its own representation. This is simply unaffordable for many families—for most, I would argue. Legal aid provides families with the certainty that there will be equality of arms at the inquest and that they will not be alone during what is likely to be one of the most difficult periods of their lives.

In September, the Government responded to the Justice Committee report on this point. The Committee said that the Ministry of Justice should,

“for all inquests where public authorities are legally represented, make sure that non-means tested legal aid or other public funding for legal representation is also available for the people that have been bereaved.”

In their response to that report, the Government announced a plan to remove the means test for exceptional case funding and the means test for legal help in cases where exceptional case funding is granted. I acknowledge that that is a considerable step to ensure that bereaved families involved in inquests where article 2 is engaged are funded without having to go through a complex and intrusive application process.

However, while plans to remove the means test for exceptional case funding through secondary legislation appear well advanced—I think the Minister has said that he expects to bring forward secondary legislation on that in the new year; if he is able to give us any more details, that would be helpful—work on the legal help process is a long way from fruition. Legal advice is needed not only during the inquest hearing but from the point of death. There is a clear link between meaningful access to justice and the outcome of the legal process, as early legal advice has a significant impact on the scope and quality of inquests.

I do not know whether the Minister can say any more about that today; it will be helpful if he can. Again, I welcome the commitment that there will be legal aid for early help too. Will it be dealt with at the same time and in the same manner as exceptional case funding, or do the Government have other plans?

This policy reform, while welcome, does not go nearly far enough. Even before the financial situation of families is considered, it is rare for an application for exceptional case funding to be successful, especially in healthcare-related inquiries. The removal of the financial means test alone is unlikely to benefit many families, nor does it satisfy the requirements set out in recommendations made by countless reviews.

The evidence for the need for change is overwhelming. It has support from all quarters, including every independent review and public inquiry that has considered these issues in the last 20 years. The Justice Committee originally set a 1 October deadline, which has now passed, but the Bill presents an opportunity to address these issues. I therefore wish to set out the case for the three new clauses in turn, in an effort to address the current inequality of arms.

I turn first to new clause 10. It seems that in most cases where there has been a state-related death, the state is represented by publicly funded expert legal teams and routinely supported by relevant experienced professionals and senior personnel during the inquest. In cases where Inquest has been involved in supporting families, the state has always, without exception, had that level of support. All that is automatically in place for state bodies, largely at the taxpayer’s expense. There is no test of merit, nor any means testing in place, for accessing that support.

I will read some quotes from families that Inquest has been supporting that were submitted as evidence to the Justice Committee. One family said:

“We haven’t had the inquest yet, but I don’t have much faith that we will get the answers or outcome we would like because we don’t have representation and everything is stacked against us. All the services involved have representation – how can that be fair?”

Another said:

“It is horrendous and unfair that the process cost us over £30,000. The Trust had a very expensive barrister paid for by our taxes. The thought that justice is not available to families is terrible.”

Dawn Boyle said:

“Without legal aid, people like us would just bury our sons with no questions asked. Legal aid makes a massive difference. Legal aid gives us that voice. Without legal aid, we have to sit back and accept it. We would be even more devastated if we couldn’t find any answers.”

Liz de Oliveira said that after the death of her daughter,

“the lack of funding meant I had to cross examine the pathologist myself on my dead daughter’s body – something no parent should ever have to do.”

Deborah Lockett said:

“I will say it again, and again, and again, until it is well known: the purpose of Legal Aid funding for inquests is to give the coroner the best possible opportunity to prevent future deaths, by hearing submissions from the family’s barrister. There is no way that a family member can fill the professional role of a barrister. The family’s barrister is there in court solely to assist the coroner to identify the legal issues in play in the inquest, all for the ultimate purpose of preventing future deaths. This simply cannot be achieved without Legal Aid. Does anyone now think Legal Aid for inquests is unimportant? Who is going to assist the coroner in his/her work if the family don’t have a barrister?”

These experiences highlight the fundamental inequality of arms at the heart of the inquest process. State bodies and representatives have unlimited access to public funding and the best legal teams and experts; families have to fall within a strict, draconian framework to be granted legal aid, and face complex and demanding funding application processes. Many are forced to pay large sums towards legal costs or to represent themselves. Others have had to resort to crowdfunding. The existing funding scheme is having a damaging and distressing effect on families, further frustrating the inquest process by adding an additional layer of complexity and delay, and thwarting the process of scrutiny and the potential for learning.

I am concerned by the Ministry of Justice’s suggestion that inquests are inquisitorial, informal processes in which families can either represent themselves and ask questions about the death of their relative, or ask others to answer their questions. That is simply a myth. The reality is that an unrepresented family is confronted by a bank of lawyers who represent other interested persons at the inquest, with a heavy focus on damage limitation for the organisation at hand. The process is much more adversarial than inquisitorial, and as such the inquest process requires specialist knowledge of organisational policies, procedures and the law.

Countless authoritative reviews and inquiries have all reached the same conclusion: the current funding arrangements for inquest representation needs fundamental reform. As recently as May this year, the Justice Committee said that

“it is unfair that public funding is available for bereaved people to be legally represented at inquests only in exceptional cases and subject to a means test. This is the case even at inquests that involve many public bodies each of which are legally represented”.

The past few years have seen an unprecedented focus on how agencies investigate and scrutinise contentious state-related deaths. The momentum for change is now overwhelming and the call for funding that we make today is echoed from every possible quarter—from Dame Elish Angiolini, Bishop James Jones, Lord Bach, two Chief Coroners, Baroness Corston, Lord Harris, the Joint Committee on Human Rights, the independent review of the Mental Health Act, the Westminster commission on legal aid, and agencies including the Independent Office for Police Conduct.

Back in 2017, Dame Elish Angiolini stated:

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

Bishop James stated that

“publicly funded legal representation should be made available to bereaved families at inquests at which a public authority is to be legally represented.”

Members of this Committee were sent a letter just a few days ago, on 16 November—I am sure we have all seen it—in support of the intention of the new clause. That letter was signed by Action against Medical Accidents, Appeal, the Association of Personal Injury Lawyers, the British Institute of Human Rights, Clinks, Cruse Bereavement Support, the Equality Trust, the Howard League for Penal Reform, Justice, the Law Centres Network, the Law Society, the Legal Action Group, the Legal Aid Practitioners Group, Liberty, Paul Farmer, Mind, Medical Justice, the Prisoners’ Advice Service, the Prison Reform Trust, the Public Law Project, Release, User Voice, Women in Prison, and the Zahid Mubarek Trust. We seldom see such universality and agreement on a single point.

Without funded representation, families are denied their voice and meaningful participation in the processes of investigation, learning and accountability. That undermines the preventive potential of inquests to interrogate the facts and ensure that harmful practices are brought to light. Many families enter into the long, complex and incredibly daunting inquest process in the hope that by their doing so future deaths will be prevented. As has been often said by families who have been through this, the objective in pursuing what is a traumatic and difficult process is often not only truly to understand what may have happened to a loved one, but to try to ensure that no one else will suffer in the same way.

Many key findings on the conduct of state bodies arise from cases that fall within article 2 and are therefore eligible for exceptional case funding. However, such findings also crucially arise from many cases in which article 2 may not be arguable. Those include healthcare-related deaths in custody, in which currently the prison service, the police, or the mental health trust would be legally represented at an inquest but the family would not be eligible, or self-inflicted deaths in mental health settings of voluntary patients or those detained under the Mental Health Act 1983, in which, if the coroner rules that article 2 on the Rabone test is not engaged, the family do not get funding. There is considerable inconsistency in coroners’ decisions on article 2 in that context, and currently a large number of cases that might actually qualify for article 2 are not being funded, with families being left unrepresented.

Other instances include self-inflicted deaths where the person is under the direct care of a mental health trust but is living in the community, deaths in supported accommodation where the person has been placed there by a public body, self-inflicted deaths of people who have presented in mental health crisis at a hospital but the hospital is not willing to admit them, deaths in care settings where placements are funded by a local authority, which would include the deaths of people with learning disabilities, and cases involving complex or systemic medical concerns. In all those instances, there would be no benefit from the changes currently proposed by the Ministry of Justice. Such cases must be included in the criteria for non-means-tested funding for bereaved families’ legal costs during the entire inquest process.

Funding should also be granted in cases involving wider state and corporate accountability and multiple deaths, such as Hillsborough, Grenfell and terrorist attacks. The little-used public interest category of funding needs to be expanded and clarified to broaden the scope to cover important cases that raise issues of wider public concern and benefit. The extremely limited number of grants on public interest grounds demonstrates that the current test, and the way in which it is applied by the Legal Aid Agency, is not fit for purpose.

I would like to give a few examples of why the case for change is so important. The first is the case of Connor Sparrowhawk, who died after he drowned in a bath as a result of an epileptic seizure on 4 July 2013. He was admitted to a now closed down short-term assessment and treatment unit run by Southern Health NHS Foundation Trust. Connor’s death was originally viewed as being from natural causes, meaning it would have been extremely difficult for it to be assessed as eligible for legal aid under ECF. The coroner eventually determined that article 2 had in fact been engaged and, at the inquest into his death in 2015, the jury found that Connor’s death was contributed to by neglect.

Connor’s family were not able to pay for legal representation out of pocket and relied on pro bono advice and representation. As Connor’s family told the Joint Committee on Human Rights in 2018, lawyers for the multiple state agencies involved in their son’s death adopted an adversarial and obstructive approach preceding and during Connor’s inquest. Therefore, without legal representation, it is likely the significant findings made about neglect in Connor’s care would never have come to light.

Inquest informed me of the case of D, involving a death in private supported accommodation. The individual had recently been released from prison and was placed in accommodation that the local council noted was unsanitary. The inquest was originally listed as a rule 23 inquest, which meant a documentary inquest without hearing from key witnesses. Lawyers working on this case were thankfully able to argue that article 2 was in fact engaged and funding was eventually granted. Without legal representation, it is likely this case would never have proceeded to a full inquest hearing.

In the case of Matthew, who died on 8 January 2019, the inquest concluded that his death was sudden, unexpected and linked to alcohol dependency. Matthew’s family were keen for his inquest to be as broad as possible in scope, to understand the circumstances around his death. They paid privately for legal representation to make the case for the inquest to be article 2 during the pre-inquest review, given systemic issues around detoxification pathways from A&E.

Ultimately, the coroner decided that article 2 was not in breach in this case, and therefore Matthew’s family were not eligible for legal aid under exceptional case funding. Crucial failings were identified in the care Matthew received, including the fact that Matthew should have been admitted for inpatient detoxification four days prior to his death and that there was poor communication between staff on his case.

Although it was ultimately decided that Matthew’s case did not engage article 2, with help from lawyers the inquest into his death revealed critical findings about his care at the hands of the state. Given the state’s involvement, Matthew’s family should not have been forced to pay out of their pocket for legal representation, especially when the five other interested legal parties all had legal representation, mainly paid for by the state.

I also want to highlight the case of Harry Richford, who died seven days after birth at the Queen Elizabeth the Queen Mother Hospital in Margate, Kent. Harry’s family were not able to pay for specialist legal help and needed to navigate the complex inquest process, in which NHS trust lawyers dropped 1,400 pages of new evidence on the morning of the second day of the inquest. The family worked with their local MP and the organisation Advocate to secure pro bono legal representation.

Following the inquest into Harry’s death, the Care Quality Commission confirmed that it would be criminally prosecuting the trust for unsafe care and treatment for both Harry and Sarah, his mother. Without legal representation, Harry’s family may never have found out what went wrong in their son’s care, and there would have been no accountability for his death. It is unfair that state agencies were able to be represented at the taxpayer’s expense while Harry’s family had to struggle to find pro bono representation.

Properly conducted inquests in which families are legally represented can help to ensure scrutiny and examine and address the systems and practices that are meant to ensure safety and prevent deaths. While the individual rights and interests of the families in each case are vital, the benefit of ensuring proper legal representation for those families does not end there. Inquests can help to save lives by exposing unsafe systems of care and holding public and private services to account. Funding for families therefore has a wider public benefit, far beyond individual rights and interests. New clause 10 would ensure that the bereaved are entitled to publicly funded legal representation in inquests where public bodies are legally represented, giving effect to the recommendation in the Justice Committee’s report on the coroner service.

I will now deal with new clauses 11 and 12, unless the Government Whip wishes to interrupt me.

Ordered, That the debate be now adjourned.—(Scott Mann.)

Adjourned till this day at Two o’clock.