Shoreham Air Show Crash: Access to Justice — [Mark Pritchard in the Chair]

– in Westminster Hall at 3:47 pm on 9th January 2018.

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[Mark Pritchard in the Chair]

Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham 4:00 pm, 9th January 2018

I beg to move,

That this House
has considered the Shoreham air show crash and access to justice by families of the victims.

I welcome the Under-Secretary of State for Justice, my hon. Friend Dr Lee, as the last man standing in the Ministry of Justice. I will be easy in my comments and certainly not apportion any blame to him for the inadequacy of any answers he may be able to provide.

This is an important matter. On 22 August 2015, a vintage Hawker Hunter jet plane crashed at the Shoreham air show in my constituency. Eleven men tragically lost their lives, and many stories of the personal tragedies that accompanied that loss touched a chord across the nation. It represented at the time the largest civilian loss of life in the United Kingdom since 7/7, and the first fatalities on the ground at any UK air show since 1952. Those statistics will give little comfort to the victims’ families, and I am sure that I echo the feelings of the whole House when I say that our thoughts and prayers go out to them, and that the first priority remains to give them the support that they will need in these difficult times.

Those were the words that I used when opening a debate in this Chamber on 15 September 2015, just three weeks after that tragic accident. Twenty eight months on, the coroner’s inquest has still not happened and is not scheduled until November 2018 at the earliest, and no decision has been taken by the Crown Prosecution Service about whether any charges will be brought against anyone or any body. The lack of any decisions about prosecutions has already led to delay in the coroner’s inquest. Indeed, the West Sussex coroner, Penny Schofield, has written again just this week to families of the victims to postpone the third pre-inquest review hearing, due on 24 January, to 26 March. There is growing concern that the inquest may well not happen in 2018 at all, given its dependence on getting prospective criminal proceedings out of the way, despite the huge efforts being made by the coroner, which I know are greatly appreciated by the families of the victims. I want to pay tribute to the sensitive and sympathetic way in which the coroner for West Sussex, Penny Schofield, has dealt with the families in this tragic case.

I raised this issue directly with the Prime Minister at Prime Minister’s Question Time on 1 November 2017, and specifically the extraordinary decision by the Legal Aid Agency not to extend funding from the exceptional cases fund to the families of the victims at the coroner’s inquest when it eventually takes place.

Photo of Ellie Reeves Ellie Reeves Labour, Lewisham West and Penge

I am sorry to learn about the difficulties that the hon. Gentleman’s constituents have experienced in trying to secure legal representation and legal aid. Legal aid is an issue that I take great interest in, and I previously tabled early-day motion 498 in relation to legal aid for inquests. Does he agree that the Government should review legal aid for inquests and ensure that legal aid is granted in all cases for bereaved families where the state is funding one or more of the other parties?

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

I do agree, and indeed the Government are doing that. I will come to that point later on.

I originally raised that decision in a letter to the PM in August jointly with other Sussex Members, including my hon. Friend Huw Merriman, but, alas, had not received a response directly from the Prime Minister at the time. The Prime Minister replied at PMQs that she fully understood the concerns of the families and assured me she was committed to ensuring that

“where there is a public disaster, people are able to have proper representation.”—[Official Report, 1 November 2017; Vol. 630, c. 814.]

Those were her words. The Lord Chancellor was asked to look at the problem, which is connected to the point that Ellie Reeves made. I appreciate that the Prime Minister takes a close interest in this tragedy. Indeed, in contrast with the apparent indifference of No. 10 under the previous Prime Minister to the magnitude of this tragedy, the now Prime Minister championed the outstanding role played by the police, especially in the traumatic days that followed the crash, and added her tribute and flowers for the victims.

It is deeply disappointing that since 1 November, all that has happened effectively is a confirmation from the Ministry of Justice that the Legal Aid Agency made its decision properly, that the application and subsequent appeal were considered in line with relevant guidance and that Ministers cannot intervene. The Prime Minister simply pointed out that, before I raised this issue, the Lord Chancellor had announced a post-implementation review of the legal changes made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and I might consider making a submission to that review. That is the point that the hon. Member for Lewisham West and Penge made, and I will certainly be using the transcript of this debate to put that case.

The air accidents investigation branch produced a very thorough and comprehensive report on 3 March 2017, but it was not its job to apportion blame and instigate legal proceedings—that is not the way it is set up. A number of questions were raised by that report. The law firm Stewarts Law, which has been representing pro bono some of the families, has made a number of comments about that report. The AAIB report says that the investigation found that

“the parties involved in the planning, conduct and regulatory oversight of the flying display did not have formal safety management systems in place to identify and manage the hazards and risks. There was a lack of clarity about who owned which risk and who was responsible for the safety of the flying display, the aircraft, and the public outside the display site who were not under the control of the show organisers.”

It goes on:

“The regulator”— the Civil Aviation Authority

“believed the organisers of flying displays owned the risk. Conversely, the organiser believed that the regulator would not have issued a Permission for the display if it had not been satisfied with the safety of the event…No organisation or individual considered all the hazards associated with the aircraft’s display, what could go wrong, who might be affected and what could be done to mitigate the risks to a level that was both tolerable and as low as reasonably practicable. Controls intended to protect the public from the hazards of displaying aircraft were ineffective.”

Stewarts Law notes:

“Further, there is a valid, proper and serious legal argument that the CAA failed as a regulator in properly implementing a safety recommendation made over six years ago by the AAIB from a previous fatal Hawker crash at Shoreham in 2007.”

As it stands, at the official coroner’s inquest, there will be 19 interested parties involved. All non-family properly interested persons will be legally represented. Only the families of the victims—surely those with the closest and strongest interest in the proceedings—will not have legal representation.

Photo of Peter Kyle Peter Kyle Labour, Hove

I congratulate the hon. Gentleman on securing the debate. As a neighbouring MP and someone who also lost a constituent in this air show crash, may I thank him for the open-hearted and spirited way in which he worked in collaboration with me during that gruesome period? Many of the victims of this air crash were the highest earners of the families from which they were taken, which means that in a hugely complex investigatory and legal landscape funded by Government agencies, these grieving families, who are very vulnerable and most unable to tackle these big issues, need the help of Government more than anybody else. Does he agree?

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

The hon. Gentleman makes a good point. I pay tribute to him and other neighbouring MPs who had constituents who were victims, as I extraordinarily did not. We have been able to act together to give some support and comfort to the families involved. Indeed, there was a public appeal that raised some £200,000, which has been distributed through the Sussex Community Foundation, and I have been on the board of that. I have seen at first hand the huge impact that this has had on families for whom the victims were the breadwinners. As well as going through the trauma of grieving, they have had to reinvent their lives. We need to be as supportive of these people as possible so that they can get through the formal processes, get their lives back on track and get some sort of closure. That is just not happening, which is why I have come back today to raise this matter again in the House.

As I have said, it is not assured that the inquest will go ahead this year, delaying yet further the opportunity for the families to get to the bottom of exactly what happened and achieve some degree of closure.

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

I will, and then I want to make some progress before I run out of time.

Photo of Huw Merriman Huw Merriman Conservative, Bexhill and Battle

I thank my hon. Friend for giving way, for leading all of us who have bereaved constituents and for the work he has done, particularly for my constituents in Heathfield. I think he is building on this case already, but I put it to him that with an inquest where all the others appearing will be represented and may have a certain drive to ensure that the inquest goes in one particular direction, and where there will be no prosecution as there would be in a court, it is even more imperative that the families get legal aid, to ensure that there is some semblance of balance for the coroner and guidance.

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

My hon. Friend makes a very good point, to which I will come shortly. I again thank him for co-signing the letter to the Prime Minister and for joining us in this whole enterprise.

The families still have no idea whether anyone will be charged and held responsible for the deaths of their loved ones. That is disgraceful. There has been ping-pong between the police and the CPS as to whether files and complete information have been presented to the CPS. It was confirmed only at the beginning of December that all the files required were with the CPS. Of course we want a thorough investigation of what happened, but does it really need to take this long? The CPS needs to make a decision one way or the other as to whether a prosecution can go ahead, and if one cannot, it needs to explain fully to the families why there are not grounds for a prosecution. We are in a state of limbo that is holding up the entire process, which is completely unacceptable. Frankly, I would have hoped that the Law Officers would have played some part in nudging, at least, the CPS to expedite this matter.

Twenty-seven months on from the debate in which I urged that the first priority must be to give the families the support that they need in these difficult times, it is hard to see how that has been achieved as it should and could have been. I am afraid that the Prime Minister’s words when she stated that the families of the victims of a public disaster should be able to have proper representation ring rather hollow.

Why is the decision by the Legal Aid Agency not to permit funding under the exceptional case funding provisions introduced by LASPO in 2013 so patently wrong and unjust? Exceptional case funding is currently available for categories of law that are not in scope for legal aid and where failure to provide legal services would be in breach of an individual’s rights, within the meaning of the Human Rights Act 1998, or other enforceable EU rights relating to provision of legal services. Inquests have never fallen within the main body of legal aid provision. Currently, legal aid for inquests is available only at the discretion of the Legal Aid Agency under the exceptional case funding provisions, so this case is just the sort of eventuality that was envisaged when the fund was set up in the original LASPO Act. It has nothing to do with cuts in legal aid funding, as some have tried to claim.

The Law Society has supported this application and strongly believes that bereaved families should have access to legal representation where possible. As it has put it:

“The current definition of exceptional case funding does not provide an adequate ‘safety net’ for inquests. Applications for exceptional funding are highly complex and time consuming, requiring applicants to have an understanding of human rights law, and in the case of inquests, be able to show that there is an Article 2 (right of life) issue or a wider ‘public interest’”.

The application has also been supported by the West Sussex coroner, Penny Schofield, who specifically points to problems with the families uniquely being deprived of legal representation, which could lead to a more time-consuming inquest, costing more and denying justice to all on a level playing field. She has said:

“This is a highly complicated case. It involves areas of aviation law which are complex and technical in nature. Families will struggle to participate in the Inquest in any meaningful way without the assistance of legal representation.

The Inquest will engage a number of complex legal issues including article 2 of the European Convention on Human Rights. It is further complicated by the fact that I will be sitting with a Jury.

If the families are not represented it is likely that the Inquest, which is already likely to last up to 8 weeks, will take considerably longer…The outcome of this Inquest will have a wider public interest. The Inquest will allow for the identification of dangerous practices and/or systemic failings that could potentially be a significant risk to life, health or safety to others for those attending airshows or working in this environment in the future.”

She finishes her letter by saying:

“I would fully support any application for funding and would emphasise that in my view it is essential not only for the families but for the wider public at large.”

One cannot put it more clearly than that. Furthermore, other, non-family interested parties that are public bodies, and for which legal representation will come from public funds, include Sussex Police, the Civil Aviation Authority, the air accidents investigation branch and the Health and Safety Executive. They will get legal representation paid for out of public funds, but the family of a victim does not qualify.

I pay tribute to Stewarts Law, the solicitors who have represented most of the families pro bono and who have made the formal application for legal funding. They made a case for legal representation to involve an aviation specialist Queen’s counsel, supported by a junior counsel and solicitors from the five firms involved with the families across the board. They make the case that

“without the support of effective legal representation, it will be impossible for the families to participate in the inquest.”

They also make the case that funding should be required by article 2 of the ECHR, the right to life. As has already been said, the AAIB report raised serious questions about the protection of that right by certain public agencies—the systemic failure by the state and its agents in the safe regulation of public flying displays. That should constitute qualification under article 2.

The inquest will undertake an investigation into the cause of the accident. It will give the 11 families an understanding of the events that led to the deaths of their loved ones and enable them to participate in the fact-finding inquisitorial process. Unlike in the criminal investigation, the families have an opportunity to be involved in the inquest process and require legal assistance to do so—my hon. Friend the Member for Bexhill and Battle made that point. The police have referred to the thousands of documents that will be provided to the coroner, and to which the families will have access, that will include technical evidence, lay evidence and witness testimony. Surely the families are entitled to proper legal scrutiny of those. Detailed specialised knowledge is necessary to understand the AAIB report and the supplementary oral evidence from the AAIB, and challenge it accordingly. Additionally, the volume of case documents in the inquest will be such that the families will further require legal expertise to assist in managing the documents and explaining their relevance to the proceedings. Therefore, a strong case was made in the application. It just defies logic that, in this exceptional case, the families have not qualified for exceptional case funding.

This inequality of arms is inequitable and could undermine the inquest’s ability to serve the public interest through a failure to protect rights under article 2 of the ECHR, with the families in effect being left to represent themselves with one hand tied behind their backs. There clearly is a wider public interest, although it is refuted by the Legal Aid Agency. There is a wider public interest not least for the more than 300 civilian air shows that take place up and down the country. They have already been affected by the changes that the CAA introduced in the light of the AAIB investigation report, meaning that some have not been able to stay viable—insurance premiums have gone up in many cases. What is that if not a wider public interest? At the conclusion of the inquest, the coroner is able, under regulation 28 of and schedule 5 to the coroners rules, to make recommendations for changes to ensure improvements to air safety and to prevent future accidents. That is each family’s main aim: they wish to prevent similar deaths and to ensure that others do not have to endure this huge trauma and bereavement. That is a wider public interest.

Clearly, therefore, the Legal Aid Agency judgment is flawed. I have requested a meeting with the chief executive, Shaun McNally, which he has agreed to, after it has looked at things further. I gather that the board is still assessing the judgment. I urge it to apply the principles for which the exceptional case fund was established in the first place. In addition, I urge the Government to look at the Law Society recommendations about what the review of LASPO should change, including researching the reasons for the low level of exceptional case funding—the point made by the hon. Member for Lewisham West and Penge.

There is also a wider issue about the inadequate way we fund legal representation for families of victims of multiple-death events. The issue is highlighted most starkly by the appalling delay in achieving justice for the victims of the Hillsborough disaster, which we have heard so much about in this place. In the report commissioned by the Home Office, “‘The patronising disposition of unaccountable power’”, the Right Reverend James Jones, the former Bishop of Liverpool and chair of the Hillsborough independent panel, said that there is a “pressing need” for bereaved families to have publicly funded legal representation at inquests at which public bodies are legally represented. I entirely agree. I have had discussions with Alison McGovern, who has championed their cause, about achieving a level playing field in these fortunately rare but devastating cases. I have co-signed the letter to the Prime Minister to that effect and hope that the new Secretary of State for Justice and the new team will meet us to discuss that.

This is my ask of the Government and the Minister. First, despite the rules, the Government should find some way to step in and underwrite funding for legal representation of the families urgently, and well before the review of LASPO. Secondly, Law Officers need to put pressure on the CPS to make a decision one way or the other and fully explain it as a matter of urgency. In the longer term, they need to look at the how we ensure that families affected by such tragedies have full recourse to proper legal representation on a level playing field.

This was an exceptional tragedy. It was a tragedy not only for the families, but for the local community, which still bears the scars of what happened, and for the country as a whole, when the spotlight and the cameras were on the small town in my constituency for those days back in August. It was an exceptional tragedy, and it needs an exceptional response from Ministers and the Government. I hope the Minister will give some assurances that that might now happen.

Photo of Phillip Lee Phillip Lee The Parliamentary Under-Secretary of State for Justice 4:20 pm, 9th January 2018

It is a pleasure to serve under your chairmanship, Mr Pritchard. I begin by paying tribute to my hon. Friend Tim Loughton for his tireless and tenacious efforts and for securing this debate. I am grateful for the opportunity to respond on behalf of the Ministry of Justice.

The Shoreham air disaster was an appalling tragedy. My heart goes out to all those affected. My hon. Friend has spoken movingly about that tragedy, both today and in the past in the House. The inquest is a distinct judicial process. It can be a traumatic ordeal for the bereaved, both in hearing how their loved ones died and through the frustration in the search for answers. That search for the truth, the answers to the unknown questions, is important in helping the bereaved to understand and make sense of tragedies such as this. It is also important for ensuring we have proper accountability for what happened, and thereby enable the families affected to move on with their lives, even though, of course, it can never compensate for their loss.

The inquest process comes on top of the independent review that was commissioned by the Department for Transport, working with the air accidents investigation branch, which reported last year. I note that the Civil Aviation Authority has accepted all the air accidents investigation branch’s recommendations. I mention this because of its importance in the search for all of the answers that the families quite understandably want.

The inquest itself is meant to be an inquisitorial process. It should not be an adversarial court proceeding. Participants are not required to present legal arguments, and they can ask coroners to question witnesses on their behalf. Inquests are about fact finding. They seek to establish the truth. Most inquest hearings are conducted without the need for publicly funded representation. That must be right to ensure they are as accessible as possible to both the bereaved and the wider public.

The specific process for the coroner will be unfamiliar to most people and it is important that the bereaved are properly supported, as they navigate an unfamiliar judicial procedure at such a heart-rending time for them. That is why the coroner reforms we implemented in 2013 were designed to put bereaved people at the very heart of the process. For example, families now have the right to request most of the documents in the case, and they can expect the coroner’s office to update them at regular intervals, and explain each stage of the process. The bereaved should be treated with compassion and respect, and their needs should be central to the coroner’s investigation and inquest.

The crucial point is that inquests should be more sensitive and more accessible to the citizens they are there to serve. Of course, early legal advice may sometimes be needed and helpful. That is why we have protected early legal advice to support the bereaved in preparing inquests, ensuring that it remains within the scope of legal aid. It may also be that publicly-funded representation at the inquest hearing itself is necessary in certain exceptional circumstances, and if that is the case it should be provided. This was the position prior to the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and it remains the position today.

I know criticisms have been made of the exceptional case funding scheme, and how it operates in respect of inquests, but it is important to note that, in the last two years, 328 applications for publicly funded representation at an inquest were granted. That is 62% of all applications, so the scheme does work. It does support families. I appreciate that this will be scant solace in my hon. Friend’s case, or in any other case where legal aid was not granted, but my hon. Friend also knows that Ministers cannot intervene in the decision-making process in individual cases, nor should that be possible. Individual decisions are made independently by the Legal Aid Agency, and it is important that these decisions are, and are seen to be, free from political interference.

At a human level, of course I appreciate the frustration in this case, but it was an independent decision made by the LAA. If an applicant disagrees with a funding decision taken by the agency, they have a right to an internal review, and to make further representations. I understand that the application for review in this case was not accepted, but that does not preclude further representations being submitted. My understanding is that so far none have been made.

More broadly, last year the Ministry of Justice spent £1.6 billion on legal aid in England and Wales, which accounts for more than one fifth of the Department’s budget. The Government have a responsibility to ensure that those in the greatest hardship, those in greatest need, can secure access to justice. Our job is to make sure that the most vulnerable have the support they need, and that precious and finite resources are made available to that end. That is a responsibility that we take very seriously.

Our approach is not set in stone. We keep it under constant review. For example, Dame Elish Angiolini’s important report on deaths in custody highlighted that there are issues in the system relating to public participation in the inquest process. The report was reviewed in the Department and we are updating the former Lord Chancellor’s guidance, so that it is clear that the starting presumption is that legal aid should be awarded for representation of the families at an inquest that follows the non-natural death or suicide of a person detained in custody.

We have a wider review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the legal aid reforms introduced then, which is under way and will report by the summer recess. The former Lord Chancellor has made it clear that we will look at the legal aid provision in inquests alongside the LASPO review. But I have to say that we must grapple with a more fundamental point about the accessibility of inquests. It is absolutely crucial that we consider the experiences of the bereaved during the entire process, and explore ways in which we can make inquests more sensitive at such a traumatic time. It is important to consider carefully when legal representation is necessary in what is intended to be an inquisitorial, fact-finding hearing.

The Department basically accepts my hon. Friend’s fundamental contention, which he made at Prime Minister’s questions back in November, around the equality of arms at inquests. In recent years, more and more interested persons, including public organisations, are deploying lawyers at inquests and this can create an unfair imbalance for ordinary families. But the Department does not believe the right public policy response is to engage in a legal arms race. The Department believes that we must make sure the inquest process retains its inquisitorial rather than an adversarial character and quality. I do not mind saying that overall we need to try to reduce the number of lawyers involved, where it can be responsibly done, if our aim is to make inquests more accessible, and meet the needs of the bereaved, without compromising fairness to anyone involved.

We will look at that in detail over the coming months, including the scope for reducing the number of lawyers on all sides, making the procedure more accessible, and improving the guidance available to support the bereaved. At the same time, we are already investing over £1 billion to transform our courts and tribunals, building on the worldwide reputation of our justice system, so that it is more sensitive to victims, more modern, more efficient, and more accessible. This will provide swifter and simpler justice for everyone, especially those at their time of greatest need. The justice system, and the inquest process in particular, must have due process, but it also needs to be sensitive to the needs of bereaved people at times of their greatest anxiety and indeed even suffering. Legal aid is, no doubt, one piece in that jigsaw, but we must look more widely at the system if we are going to deliver even better access to justice in the 21st century.

I conclude by congratulating my hon. Friend again on his comprehensive and, perhaps more importantly, passionate presentation on behalf of his constituency and constituents. I welcome the other thoughtful contributions, and I will ensure that the new ministerial team at the Ministry of Justice reflects further on them, as we take forward the Ministry of Justice’s vital reform agenda.

Question put and agreed to.