Legal Aid for Inquests — [Mrs Anne Main in the Chair]

Part of the debate – in Westminster Hall at 3:05 pm on 10th April 2019.

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Photo of Tim Loughton Tim Loughton Conservative, East Worthing and Shoreham 3:05 pm, 10th April 2019

That is a completely different subject, and one that needs to be looked at, absolutely. I am sympathetic to this. When families faced with the sudden loss of a loved one through circumstances that are well beyond their control—in a workplace, air crash, or whatever—we need to give them every support and not add challenges such as the need to try to find the money to fund lawyers to try to get to the basics of the truth.

I want to focus purely on the Shoreham air show crash in my constituency. On that fateful summer’s day in August 2015, 11 Sussex men were tragically in the wrong place at the wrong time and lost their lives. Almost four years on, we have still not had the inquest for that tragedy. For a range of issues, not least the fact that there has now been a trial, which was completed last month, that delay has meant that the families of those 11 men have been denied the opportunity to get to the bottom of the truth for an extended period, compounding the grief, confusion and challenges that they have felt. We need to do more to make their pain less in any way we can. The system is not working for such people, as we have heard in the case of other tragedies as well.

To recap, in August 2015 those 11 men lost their lives when a Hawker jet crashed on the A27, on the very spot where I had been travelling in my car four minutes before the accident happened. It could have been a much more serious tragedy, and as it was, it was the largest civilian loss of life since the London terrorist attack in 2005. It had a huge impact, not only on those families directly affected, but on the wider community of my constituency and beyond, which still remembers and is in the process of installing a permanent memorial to the loss of life in that tragedy.

The pilot was acquitted. I make no comment about that, other than to say that those families sat through the trial with great dignity—I joined them at the beginning and end—listening to the lurid details of exactly what happened and watching the footage taken by people’s mobile phones of the plane coming down. They sat through that trial with great dignity, and they then had to accept a verdict that they did not want and had not expected.

Justice went through its due courses—I make no criticism of that—but it means that the inquest, which had to wait until the trial was completed, is now even more important for those families who wish to try to flush out who was responsible, and whether any parties contributed to that accident in some way. Most importantly, what is being done to try to minimise the likelihood of such an accident happening again in future?

The record of civil aviation shows was virtually unblemished in this country, and there had been no on-the-ground casualties since the Farnborough tragedy in the 1950s. This was a huge and important event that went well beyond its impact on the local community and the families. I pay tribute to the local coroner for West Sussex, Penny Schofield, who has worked tirelessly with the families to try to manage their expectations and to be as sensitive as possible about their continuing grief. What has compounded that grief, however, is the issue of legal aid—I know you want me to come on to that, Mrs Main. Legal aid is the focus of what I am about to say, but I wanted to put it into context, as I am sure you will appreciate.

The inquest is likely to happen in the autumn, more than four years since the tragedy took place. At last count there will be at least 19 interested parties, including a number of public bodies such as Sussex police, the Civil Aviation Authority, the Air Accidents Investigation Branch, and the Health and Safety Executive, which will have legal representation paid for out of the public purse. Until recently—this has still not been confirmed—the only parties whose legal representation at that inquest will not be paid for will be the families of the 11 victims. Arguably, therefore, the people who are most important and have the greatest interest in those proceedings will have no legal representation at the inquest. That is a travesty of justice, and I once secured a debate explicitly on that subject. I have also spoken to the Minister about the issue, and raised it at Prime Minister’s questions. I have worked with the families and their lawyers, but the system is not working.

In 2017 there was a bid to the Legal Aid Agency and the exceptional cases fund to get legal representation paid for during the inquest, but that was turned down on the basis that somehow it was not within the scope of the ECF and did not represent the wider public interest. That is extraordinary because what I learned during this process is that civilian air shows have the second largest public audience of any activity in this country. There is a huge wider public interest, given the many hundreds of air shows that happen up and down the country each year.

The AAIB’s report was published in March 2017 and stated 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…Controls intended to protect the public from the hazards of displaying aircraft were ineffective”.

It added that there was a valid, proper and serious legal argument that the CAA failed as a regulator in properly implementing the safety recommendations made over six years by the AAIB after a previous fatal Hawker crash. If that does not represent a wider public interest, I do not know what does.

The coroner spoke in support of ensuring that legal aid is available to pay for legal representation for the families when the case is put in front of her at the inquest. She 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”.

Those are the words of the coroner, who says not only that it is unfair for the families not to have legal representation when all those public bodies do, but that it will be difficult for them to participate and to assimilate the proceedings of the inquest properly without legal experts to put it to them, and that it could end up costing more.

If we provide a legal expert to represent all the families as a whole, it will make proceedings more efficient, but if all the families look to have legal representation, or even to represent themselves, it will spin out the inquest and cost the public purse more. Not making sure that legal aid is available for those families is an entirely false economy. That was the coroner speaking about the inquest that will come in front of her. The lawyers acting for the families have also produced papers that show how essential it is for family members to have legal representation at that inquest, which must be provided by the public purse.

The decision by the Legal Aid Agency not to permit funding under the exceptional case funding provisions, which were introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, is patently wrong and unjust. Exceptional case funding is 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 the provision of local legal services.

Inquests have never, however, fallen within the main body of legal aid provision. Legal aid for inquests is available only at the discretion of the Legal Aid Agency under the exceptional case funding provisions introduced by the LASPO Act. This is just the sort of case that was envisaged when setting up the fund in the original Act, so it is nothing to do with cuts in legal aid funding, as some have tried to claim, but is about the provisions in the legislation apparently not working.

The Law Society supports the application and strongly believes that bereaved families should have access to legal representation where possible. It says that the definition of exceptional case funding does not provide an adequate safety net for inquests. Applications for exceptional funding are highly complex and time consuming, and require applicants to have an understanding of human rights law, and, in the case of inquests, to show that there is an article 2 right to life issue or a wider public interest in legal aid being granted. Even when one of those triggers is present, the Legal Aid Agency guidance suggests that the assumption should still be that the bereaved family does not need representation because the process is inquisitorial and led by the coroner, rather than adversarial, but the Law Society challenges how far a bereaved family can be expected to engage effectively with a legal process that relates to the death of a loved one.

I pay tribute to the legal firm Stewarts Law, which is providing a lot of support to the families, largely pro bono. It has challenged the ruling. Unofficially, we are optimistic that legal aid funding may be available when the inquest comes around, but the families should not have had to fight for it. It should have been there as a matter of course—as was intended in the original 2012 Act. The inequality of arms is inequitable and could undermine the inquest’s ability to serve the public interest by failing to protect the rights of the families under ECHR article 2, and there is clearly a wider public interest.

I welcome the Government review of the LASPO Act, which the Minister recently published, but it does not make the future of exceptional case funding clear. The Minister might wish to comment on this when she winds up, but in response to the review we need to look at this further and in more detail to make sure that when tragedies such as the Shoreham air show disaster happen, and in the many applications that we have heard about when there is a multiple or single loss of life, the system automatically swings in to support the families, rather than putting yet further hurdles in the way of their securing justice and access to the truth, which only exacerbates their trauma, tragedy and grief. We surely owe it to people who have been unfortunate enough to suffer such loss to do everything to support them and not put obstacles in their way.