Shoreham Air Show Crash: Access to Justice

(Limited Text - Ministerial Extracts only)

Tuesday 9th January 2018 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Dr Phillip Lee)]

It is a pleasure to serve under your chairmanship, Mr Pritchard. I begin by paying tribute to my hon. Friend the Member for East Worthing and Shoreham (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.