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

Judicial Review and Courts Bill – in a Public Bill Committee on 18th November 2021.

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Amendment moved (this day): 73, in clause38,  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 Andrew Rosindell Andrew Rosindell Conservative, Romford 2:00 pm, 18th November 2021

I remind the Committee that with this we are discussing 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

It is a pleasure to serve under your chairmanship, Mr Rosindell. I am sure you have been told that, before the short adjournment, I had made my remarks on amendment 73 and new clause 10. I will deal with new clauses 11 and 12 briefly because I dealt with most of the points on new clause 11 in my opening remarks on the group.

New clause 11 asks for the removal of the means test for legal help prior to an inquest hearing. It is complementary to new clause 10, which deals with representation. As I indicated, the Government have given certain assurances on legal help and on representation for bereaved families at inquests. We are keen to hear more details on that. However, what we have heard so far does not go far enough, or in this case, fast enough. Legal help is important, because as soon as a death occurs, complex legal processes are triggered involving multiple interested persons and agencies. Families often need expert advice on areas such as access to and release of the body, post-mortems, communication with investigation teams, securing of evidence, inquest scope, witnesses, article 2 inquests, criminal investigations and so on. As previously highlighted, legal help can significantly impact the scope and quality of an inquest. It is imperative that families secure specialist legal advice at the earliest possible stage. Until the Government remove the means test for legal help, that will not be possible for a significant number of families. I therefore propose new clause 11, which would remove the means test in legal aid applications for legal help for bereaved people at inquests, as the Government have committed to doing for advocacy services.

New clause 12 would bring the definition of family in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in line with the definition used in the Coroners and Justice Act 2009. Article 10(4) of LASPO refers to services offered only to members of the deceased’s family. The amendment would bring that definition of family in line with that used in the 2009 Act, ensuring that the eligibility for those services includes an “Interested Person”, which as per that definition can be a spouse, child or sibling, but can also be a child of a sibling, a partner, civil partner, grandparent, step-parent or half-sibling. Crucially, that definition also covers a personal representative of the deceased and others acting in an official capacity on behalf of the deceased. That will apply where there is a personal representative who may not be directly related. This change has the common-sense advantage of making the legal aid eligibility under LASPO consistent with the 2009 Act.

An example of why that is important comes in the case of an ex-prisoner who had no or very little contact with her family owing to her time in prison and other factors. The only person who could represent her interests was someone she had become close to in her community, and whom she had named in a letter to her probation officer as next of kin. The coroner and all the interested parties treated this person as next of kin, but despite that, the Legal Aid Agency maintained that funding could not be provided because the person was not family under the definition set out in LASPO. I therefore propose new clause 12, which would bring the definition of family in LASPO in line with the definition used in the 2009 Act.

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

It is a pleasure to serve under your chairmanship, Mr Rosindell. Amendment 73 proposes to set out in primary legislation the requirement for a coroner to seek consent from interested persons before deciding on whether to hold an inquest without a hearing. The intention of clause 38 is to allow coroners flexibility to hold cases without a hearing where they determine there is no requirement to hold one. The clause is focused on non-contentious cases, and while it will be for the coroner to determine what constitutes a non-contentious case, we expect that these will be cases in which the bereaved family is content not to attend a hearing.

I understand that the vast majority of the 30,000 inquests heard each year are held with only the coroner and their officer in the courtroom, speaking into a recording device. In these cases, it is simply unnecessary to hold hearings and to prolong the process for bereaved families. Safeguards for clause 38 are already set out clearly in subsection (2), which states that the coroner has to have

“invited representations from each interested person known to the coroner”, and cannot decide that a hearing is unnecessary if an interested person

“has represented on reasonable grounds that a hearing should take place”.

Coroners also cannot proceed without a hearing unless they think the public interest would not be served by having one. As I said on previous clauses, coroners are independent judicial office holders. How they conduct their investigations and inquests is a matter for them. Introducing the concept of consent into the coroner’s decision-making process is tantamount to fettering a coroner’s discretion. Notably, amendment 73 does not address the entirely possible eventuality that consent may be unreasonably withheld.

I turn to the motions relating to legal aid. As hon. Members know, I am sympathetic to the difficulties facing all bereaved families. The Government believe that affected families should be at the heart of any inquest process. The coroner’s investigation, including the inquest, is generally an inquisitorial, fact-finding process; a narrow-scope inquiry to determine who the deceased was and how, when and where they died. This means that, for the vast majority of inquests, legal representation and legal aid are not necessary. New clause 10, which would expand access to legal aid at inquests, would run counter to that approach. There is a risk that additional lawyers at an inquest will not provide an overall improvement for the bereaved and could have the unintended consequence of turning an inquisitorial event into a complex defensive case, which could prolong the distress of a bereaved family.

The hon. Member for Hammersmith made some perfectly reasonable points. He referred to the oral evidence that we heard from André Rebello. I remind Members that André Rebello is a senior coroner operating in the north-west of England and the honorary secretary of the Coroners’ Society of England and Wales. As he said:

“A coroner’s jurisdiction is inquisitorial. It is an inquiry; it is not litigation.”

He also said:

“Where there is representation…where the properly interested persons are identified, they have rights with regard to disclosure of advance information, but thereafter their duty is to assist the court in finding the true facts as to who the deceased was, when and where they died, and by what means and in what circumstances they came by death in certain cases. That is all done without determining criminal liability by a named person or any question of civil liability. This is an inquest, not litigation.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 35-36, Q36-38.]

It is worth pointing out that witnesses are examined, not cross-examined, for precisely that reason.

The Government recognise that this is a difficult time for bereaved families and have been working on several measures to make inquests more sympathetic to the needs of bereaved people. We have engaged with the Chief Coroner on training for coroners and officers; published new guidance on coroners’ services for bereaved people; developed a protocol that, among other matters, ensures that where the state is represented it will consider the number of lawyers instructed so as to support an inquisitorial approach; and building on that protocol, supported the legal services regulators—the Bar Standards Board and the Solicitors Regulation Authority—in their work to develop inquest-specific information to guide lawyers who represent at inquests. The regulators published a toolkit and competences for practitioners on 13 September.

For bereaved families who need legal help, advice and assistance is always available under the legal aid scheme, subject to a means and merits test. This can help preparation for an inquest, including help for families to decide what questions to ask. For legal representation at an inquest, legal aid may be available under the exceptional case funding scheme where certain criteria are met. Where these criteria are met, the Government are of the view that the process should be as straightforward as possible. With that in mind, we have already committed to removing the means test for exceptional case funding applications for representation at inquests and for legal help at an inquest where representation is granted. I said in Westminster Hall, and will say again in answer to the hon. Gentleman’s question, that we are in the process of drafting the clauses for a statutory instrument, which I believe will be legislated for early in the new year. I am afraid that I cannot give more detail than that, but it does mean that we will be bringing this measure forward relatively imminently.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

I am grateful for that, and I will not press the Minister further on timing beyond “the new year”, although we know that that could last up until December. However, is he saying that the measures on legal help will be dealt with at the same time and in the same way as those relating to exceptional case funding?

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

I was just about to come on to the issue of legal help, because the hon. Gentleman asked about that earlier. Legal help and advice in relation to inquests is already in scope of legal aid, and the Legal Aid Agency has the discretion to waive the eligibility limits if it considers it equitable to do so. However, the legal aid means test review is considering the legal aid means test as a whole, including in relation to legal help for inquests. That review will be published shortly.

New clause 11 would remove the means test for legal aid applications for legal help for bereaved people at inquests. As I said, we have recently announced our intention to amend regulations to remove the means test for applicants for exceptional case funding for legal representation at inquests. That change will also provide non-means-tested legal help in relation to an inquest for which ECF has been granted for legal representation. As was said in relation to legal help specifically, we are also carrying out a review of the legal aid means test as a whole, and that review will be published shortly.

New clause 12 would amend the definition of “family” for the purpose of applications for legal aid at inquests. As I said in response to new clause 10, the Government recognise that this is a difficult time for bereaved families, and have already made a number of changes to make inquests more sympathetic to the needs of bereaved people. However, that does not mean that legal aid is required in all cases. The coroner’s investigation is generally an inquisitorial and fact-finding process. This means that for the vast majority of inquests, legal aid is not necessary. For bereaved families who do need legal help, advice and assistance is already available under the legal aid scheme, which is of course subject to a means and merits test.

Again, as I have already said, for legal representation at an inquest, legal aid may be available under the exceptional case funding scheme where certain criteria are met, and the Government have already committed to removing the means test for those applications. Given the ongoing work that this Government are undertaking to support families at inquests, I urge the hon. Gentleman to withdraw his amendment.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

I hear what the Minister has said in relation to the amendment and the new clauses. Notwithstanding his comments on amendment 73, it is not our intention to press that amendment to a vote, or indeed to oppose the clause as a whole when we come on to clause stand part. I accept—although it is far from perfect—that there are some caveats built into the text of the clause, which are not built into clauses 37 and 39 in the same way.

As for the legal aid clauses and new clause 12, I hope the Minister will at least see that there is a logic and a consistency to adopting the same definitions as are in the Coroners and Justice Act 2009, and notwithstanding his comments, I hope that the Government might look at this issue again. I hear what he says about legal help: he has made essentially the same point that he made about new clause 10, which is that this is an inquisitorial process and additional lawyers could complicate the matter, so in that sense, the new clause is not necessary. I will not push new clause 11 to a vote—let us see what the Government come up with—but we will wish to vote on new clause 10.

Frankly, the arguments that the Government are repeating in a rather tired way have been completely debunked now. As the Minister has said, we did hear from Mr Rebello, who is a senior coroner, but there are many coroners who do not share Mr Rebello’s view. As I indicated at some length this morning, this is the overwhelming opinion of not just practitioners but practitioner organisations, family organisations and all those who have done these reports for 20 years, and the Government are conceding that in part. This is an area on which the Government have moved, and I respect the fact that they have done so, but if they really believe in equality of arms in these matters, they have to put families at inquests on the same footing as those parties who are fully represented. It still will not be equality of arms. Frankly, in many cases, there will still be a number of different parties reinforcing each other. I have appeared in many inquests of that kind against a family, often a single family, and their lawyer.

However, for all the reasons I have given—I will not repeat them—it is certainly the minimum position that families in these circumstances when they are up against the state—not just in article 2 cases but in others as well—should have the right to representation. We will lose the vote today, but I hope the Government think again on the matter and are finally persuaded to go a little further when they bring their proposals forward in the new year. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Andrew Rosindell Andrew Rosindell Conservative, Romford

Just for clarification, votes on new clauses come at the end of the proceedings.

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

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

Each year, around 30,000 inquests are held in England and Wales. Indeed, 32,000 inquests were opened in 2020. A significant number of the cases are non-contentious and those most likely to attend, such as the bereaved family, are content not to attend. Despite that, the coroner still has to hold a hearing, often in an empty courtroom with just a recording device. The clause will enable the coroner to determine when an inquest can be held without a hearing, for example, where there is no practical need or public interest to do so. That would, in turn, free up physical space and resources for inquest cases that do require a hearing.

There will, of course, be cases that genuinely need a full public hearing, and coroners will still be expected to hold these as usual. There will also be cases where the family would like a hearing, and the coroners will be expected to judge each case on merit, working with families sensitively. The Chief Coroner will provide further guidance to coroners to ensure that there is consistency of approach across coroner areas. The clause will reduce the need for unnecessary procedures, bringing efficiency to the coroner’s courts and supporting bereaved families by reducing the need for unnecessary inquest hearings, which add to their distress.

Question put and agreed to.

Clause 38 accordingly ordered to stand part of the Bill.