Coroners and Justice Act 2009 (Consequential Provisions) Order 2013

Wednesday 10th July 2013 Grand Committee

Considered in Grand Committee

17:41

Moved by

[Lord McNally]

That the Grand Committee do report to the House that it has considered the Coroners and Justice Act 2009 (Consequential Provisions) Order 2013.

Relevant documents: 2nd Report from the Joint Committee on Statutory Instruments.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the order amends two key provisions in the Coroners Act 1988. The first is Section 4A(8), which governs the jurisdiction of coroners in Wales. The second is Section 13, which allows applications to be made to the High Court by, or under the authority of, the Attorney-General, for an inquest, or fresh inquest, to be ordered. These provisions of the Coroners Act 1988 will not be repealed when the bulk of Part 1 of the Coroners and Justice Act 2009 is implemented later this month. The purpose of the draft order is simply to amend the terminology of these provisions to make them consistent with the Coroners and Justice Act 2009.

Part 1 of the 2009 Act contains a number of important reforms to the coroner system. It creates the new post of chief coroner, the new judicial head of the system, and makes a number of changes that will help to speed up the inquest process, improve consistency between coroner areas and drive up standards.

Part 1 of the 2009 Act also introduces new terminology, including new titles for coroners and the areas they are appointed to. It also introduces the new concept of an “investigation” into a death, of which the inquest will form part. Under the 2009 Act, the coroner or jury will make “determinations and findings” at the end of an inquest rather than reaching a “verdict” and making an “inquisition”.

Following a consultation exercise earlier this year, we intend to commence the majority of the 2009 Act provisions, and new coroners’ rules and regulations, on 25 July. When we implement the 2009 Act, we will repeal the 1988 Act but with two important exceptions. The first exception relates to the deployment of coroners in Wales. Section 4A(8) of the Coroners Act 1988 provides that a coroner appointed to a district in Wales is to be considered a coroner for the whole of Wales. This gives additional flexibility in the deployment of resources in Wales. It means that a coroner with specialist skills can temporarily act outside his or her own district without having to be appointed as a coroner in the other district. This is particularly useful for urgent matters which may arise, such as the need to request a post-mortem examination or to facilitate organ donation. The draft order, therefore, updates the language of Section 4A(8) to make it consistent with the 2009 Act. It does this by changing the word “coroner” to “senior coroner” and “coroner’s district” to “coroner area”. We will repeal the rest of Section 4A.

17:45

The other 1988 Act provision that we need to save is Section 13. This important provision allows an application to be made by, or under the authority of, the Attorney-General to the High Court for an inquest or a fresh inquest to be ordered. Noble Lords will no doubt remember the important debate that we had about implementation of the post of chief coroner when the Public Bodies Bill was before this House. The Government listened to concerns expressed about the importance of the role of the chief coroner and agreed to take the post out of scope of the Public Bodies Bill. This was on the proviso that Section 40 of the 2009 Act, which created a new system of appeals to the chief coroner, would be repealed. In doing so, we were clear that we would instead retain Section 13 of the 1988 Act.

The order therefore amends the terminology of Section 13 to match the language of the 2009 Act. For example it allows the High Court to order an investigation, rather than an inquest, into a death where the coroner has refused or neglected to hold one, or a fresh investigation where a coroner has already held one. The order also allows the High Court to order a different coroner within the coroner area to conduct the investigation or fresh investigation. Alternatively, the chief coroner will be able to direct a coroner in a different area to conduct the investigation, using the power in Section 3 of the 2009 Act. Retaining Section 13 of the 1988 Act preserves an important means for bereaved people to challenge the outcome or conduct of a coroner’s investigation.

A concern was raised in the other House about the effectiveness of Section 13 for those bereaved people who are dissatisfied with a coroner’s investigation. The recent example regarding the tragic deaths at Hillsborough should be sufficient to demonstrate the merits of Section 13. Last December, my right honourable friend the Attorney-General lodged such an application with the High Court on behalf of the families of those who died at Hillsborough. The High Court subsequently quashed the original inquests and ordered new ones to be held. We expect the inquests to begin early next year. Without Section 13, the only available means for challenging a coroner’s decisions would be by means of judicial review, which was not an option for the Hillsborough families, given the time limits for bringing such proceedings.

In summary, I can reassure noble Lords that the Government remain committed to reforming the coroner system, to make it more responsive to the needs of bereaved families. Retaining those two provisions from the 1988 Act will help us to achieve those aims. I therefore commend this draft order to the Committee. I beg to move.

[Baroness Finlay of Llandaff]

I am very grateful to the Government for this order, and I am glad to speak to it today. I thank the Government for the way in which this is happening because there has been a gentle transition that aims to enhance the experience of the public. When they are bereaved, people are incredibly vulnerable but there will now be a process that is kinder to them. If an investigation is required it can be conducted. If the investigation shows that it was a natural death, the coroner can simply register the death and the family will be spared the court process if it is not necessary. If, however, a hearing is required, the family will get an inquest and they will have the hearing that they may seek. That means that it meets the needs and expectations of the bereaved. I hope that having a process that is much clearer in its stages will also help with that group of deaths that are deaths by suicide. It has been particularly difficult even to ascertain the data on how many such deaths occur because of how they are often recorded. The term “verdict” is used, which is often seen as suggesting that there was some kind of criminal intent behind the suicide, when death by suicide is a very tragic event for everyone left behind.

This transition should also raise the overall standard of the experience of families from lower standards to the standards of the better and best. I have discussed the order with coroners, and there is an expectation that it will achieve what we have all wanted, which is to drive up the overall standard. I hope that the Government will encourage the chief coroner to have the courage to put pressure on those coroners that people have been concerned about.

My final point is to welcome the flexibility for Wales. We will have new transplant legislation before us in Wales fairly soon, and it will be particularly important that at all times of the day or night the coroner can be contacted in relation to organ retrieval. Having the ability to provide cross-cover should mean that we will have the service that is needed and that the coroners themselves will have a working life and home life that are compatible with enjoying living in Wales, rather than being exhausted. I am grateful to the Government.

[Lord Beecham]

My Lords, I have some second-hand acquaintance with the coroner system because I was articled to a coroner and subsequently became his partner. He was a part-time coroner in the north-east of England. I cannot resist the temptation—I rarely do—to recount a couple of incidents from that time. The first was the remarkable theory constructed by the coroner’s officer, who is a police officer attached to the coroner’s office, about a chap who was found drowned in the bath. The officer came up with the wonderful theory that this man had committed suicide by deliberately banging himself on the back of the head so that he would become unconscious and drown in the bath. My principal was not entirely convinced by this theory, and accidental death was recorded instead. On another occasion he had to show a bereaved widow the body of her husband for identification purposes. The body was produced from the cabinet and uncovered, and she acknowledged that this was indeed her husband. She turned to go away and my partner, as he then was, began to put the drawer back into the cupboard, but then she said, “Do you mind, Mr Henderson, if I have another look?”. “Oh yes, my dear”, he said, and pulled the thing out again and uncovered it. She looked down at her husband and said, “Well, there you are”—I will not repeat the expletives—“may you rot in hell”. So a coroner’s life can be quite an interesting one.

With regard to the order, my honourable friend Robert Flello raised a couple of points in the other place. The first was to regret the fact that it did indeed take something of a struggle to persuade the Government to retain the office of chief coroner. However, they did that, and I join the noble Baroness in commending that and, up to a point, the changes before us today. She and the Minister are right to refer to the continued availability of Section 13 of the 1988 Act and the possible process of obtaining an order from the Attorney-General. However, that is by no means a simple procedure; rather, it is convoluted and, given that the noble Baroness has reminded us of the state of mind of bereaved families, it is one that is difficult to pursue.

The point is that in the 2009 Act there was provision for an appeals procedure. My honourable friend asserted, and I agree with him, that it would have been better to have retained or implemented that provision, particularly as the alternative to the Attorney-General procedure, cumbersome and protracted as it is, will now be only to rely upon judicial review. Judicial review, of course, poses a question of cost and of course will largely be out of scope of legal aid. It will be yet another difficult process for someone, particularly in the circumstances of bereavement, to negotiate, both practically and emotionally. It is unsatisfactory that the Government have not retained—or, rather, implemented—that provision for an appeals process, and are leaving the potential applicant with an unsatisfactory choice between the Attorney-General process and JR, the access to which is highly questionable .

In replying to my noble friend, the Minister, Mrs Grant, said simply:

“The right answer is to raise standards”.—[Official Report, Commons, Sixth Delegated Legislation Committee, 26/6/13; col. 7.]

As my noble friend pointed out, the two things are not incompatible. Of course it may well be, as both the Minister and the noble Baroness have said, that standards should indeed be raised, but that does not necessarily mean that there will not on occasion be the perceived necessity on the part of bereaved members of the family or others to challenge a decision. There ought to be a proper scope to facilitate that, and the concern is that that is not easily available under the order as it will stand.

The other aspect that the Minister might perhaps touch on is what is left to be done. Just last week we had a response to the consultation on other aspects of implementing the reform, and I assume that there will be further orders to come. I do not know if he is in a position to indicate when that might happen—I hope it will not be for a while so that some of us, the Minister included, can take a breath in the mean time from the tide of regulations and orders that we will be discussing over the next couple of weeks. One might have thought that it made sense for the whole thing to be brought together, but we have to deal with the order today. In the circumstances, we cannot object to it but we have regrets about the limited way in which the 2009 Act is being implemented. We look forward to seeing how the other aspects of it that remain to be dealt with emerge in due course.

[Lord McNally]

My Lords, I am grateful to both the noble Baroness, Lady Finlay, and the noble Lord, Lord Beecham, for their contributions. I pay tribute to the noble Baroness. Whenever a Government listen to wise advice and make an adjustment of policy, the Opposition immediately and churlishly brand that a U-turn rather than what good government should be, which is to listen to wise advice. I think that everyone now believes in the campaign that the noble Baroness very successfully worked on to restore the office of chief coroner; I do not think that anyone would now go back on that decision. Indeed, one of the more welcome things about what has happened is that His Honour Judge Peter Thornton has hit the ground running in his job. He has been visiting coroners across England and Wales, meeting stakeholders, issuing guidance to coroners on issues such as the location of inquest hearings and less invasive post mortem examinations, and drawing up proposals for specialist cadres of coroners to conduct certain types of investigation. He has been working very closely with my own office, the MoJ, on the rules and regulations under the Act, and has set up a new coroners’ training group and is working with the Judicial College to deliver training for coroners. Therefore, the hopes and expectations that the noble Baroness, Lady Finlay, has for the office are justified by the new chief coroner’s “hit the ground running” attitude to his appointment, as I described it. He certainly has my support in that.

18:00

I am pleased to note, and welcome, the noble Baroness’s point about the way that the new chief coroner is approaching his appointment and the way that the Act is being implemented. He is taking a kinder approach at a point of vulnerability. These cases are always very heart-wrenching, particularly those involving suicide. A case came across my desk recently in which the parents simply did not want to believe that their son had committed suicide. Reading the case, I thought that one should always give the widest margin of interpretation where there is a scintilla of doubt, because it is the people who are left behind who are left with the questions and doubts. It is a point of real vulnerability.

The collection of data is key to lifting standards, and I think that the chief coroner will bear that in mind as part of his exercise in lifting standards. As the noble Baroness rightly said, the flexibility now given to the coroner system in Wales is another plus as far as this legislation is concerned.

The noble Lord, Lord Beecham, tempted me to tell a couple of stories of my own but I had better not do so. We can do it in the margins. I can tell the Committee that they are good ones but I know that the noble Baroness in the Chair would give me one of her looks.

I understand the point that the noble Lord, Lord Beecham, made about Sections 13 and 40. For cost and other reasons, we did not want to implement Section 40. If we are to help bereaved families to achieve closure, the addition of a further layer of appeal rights is not the answer. This can simply encourage distraught relatives to pursue lengthy legal challenges and to exhaust all avenues of redress. The Government consider that it is better to focus on raising the standards of coroner investigations to ensure that bereaved families are satisfied with the process rather than to have new appeal rights and expensive litigation. Retaining Section 13 in addition to judicial review will provide a mechanism for challenges to coroners’ decisions where things go wrong. Bereaved families wishing to pursue claims of judicial review will be able to apply for legal aid, subject to the usual tests of means and merits.

There are no further SIs in the pipeline at the moment. Our new rules and regulations will come into force on 25 July, and no further changes are planned.

There is one other point not raised by either the noble Baroness or the noble Lord that I should put on the record. One of my noble colleagues raised the particular problem experienced by Jewish and Muslim families over the speed of their burial services. I looked into this matter following my noble colleague’s representation and found that there is a lack of consistency across coroner services in England and Wales over what is available in the way of out-of-hours cover, which allows for quick decisions in this kind of area. It depends in large part on local authority and police authority funding of the coroner or his or her officers. However, the chief coroner plans to work with local authorities and police authorities to produce guidance for coroners on providing out-of-hours cover, which we hope will meet these communities’ concerns.

[Lord Beecham]

I am very grateful to the Minister for raising this matter, which I confess I have also been approached about and had intended to raise, but immersed as I have been in several regulations and debates and preparation for them, I am afraid I had overlooked that. I am particularly grateful to the Minister for making that clear. I suppose that I ought also to declare an interest as a member of the Jewish community in that regard.

[Lord McNally]

I sincerely hope it is a facility that the noble Lord does not need to use personally for a very long time. As he says, both the Muslim and Jewish communities have raised this issue, which again proves the value of having a chief coroner. It means that when communities raise an issue it can go to the chief coroner, who will now take responsibility for issuing guidance and getting the right responses. I thank the contributors and again hope that this SI will be accepted by the Committee.

Motion agreed.