Judicial Review and Courts Bill

Lord Falconer of Thoroton Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, before I speak to Amendment 37, I should like to congratulate my noble friend Lord Ponsonby on everything that his public service outside this Committee and your Lordships’ House brings to our deliberations about criminal justice. The Committee needs no reminders from me of all that the eminent silks, retired Law Lords and former members of the senior judiciary bring to your Lordships’ House. The magistracy is a very important part of the criminal justice system. My noble friend brings an experience, a humility and an anxious scrutiny of the system to our deliberations which is incredibly helpful and always illuminating.

Amendment 37 is purely a probing amendment, and I hope the Minister received that message via his office. I have unashamedly taken this opportunity to put issues concerning women and girls in the criminal justice system on the map. As the Committee and the Minister will know, this is ultimately a shared responsibility with his noble friend Lady Williams of Trafford and her department. These two great departments of state—the Home Department and the Ministry of Justice—are responsible for the whole system, including matters well beyond the scope of this Bill, such as the police and the CPS. They also have responsibilities that are dealt with in this Bill, such as for the court system.

Just last year, both Secretaries of State felt the unprecedented need to issue a public apology to women and girls for their experience of the handling of sex offences in our criminal justice system. To some extent, that has led to the resignation of the Commissioner of Police for the Metropolis. Perhaps more importantly still, it has led not just to terrible attrition rates for sex offences in particular, but to a real crisis of trust and confidence in the system on the part of women and girls that none of us on either side of your Lordships’ House wants to see.

I do not want to say that there should be an inquiry on the narrow grounds that happen to fit into the scope of this Bill. Rather, I want to give the Minister the opportunity to update the Committee and therefore the country on where the Government are and where they propose to be, and how quickly they can rebuild trust and confidence in relation to sex offences in particular and criminal justice in general for slightly more than half of the population.

[Lord Falconer of Thoroton (Lab)]

My Lords, I will make two separate points. First, Amendment 54, tabled by my noble friend Lord Ponsonby, relates to Clause 43, which abolishes local justice areas. It says that the Lord Chancellor must,

“by regulations, make consequential or supplementary provision in relation to the abolition of local justice areas.”

I assume that the thinking behind this is that it would be convenient if all justices were appointed, say, for England and Wales and not to a local justice area, and training, deployment and other issues should be dealt with on a national basis.

I do not know what is planned, but I do know from my experience as Lord Chancellor that being a Justice of the Peace in a particular area is of very considerable importance. I also know that people are appointed as magistrates because they are committed to their local community, and that people being trained and deployed together over a period of time in a particular area is also incredibly important to local justice.

This looks to be a very wide-ranging provision which may well have been thought out in full, but I should be grateful if the Minister explained the thinking, and what is being done about recruitment, deployment and training.

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[Lord Wolfson of Tredegar (Con)]

Of course I accept that point as a matter of principle. That is why consultation is really at the heart of this. There has to be a balance. For example, there could be a case where you have a number of very disabled witnesses and a particular courthouse is more accessible for them than another one. There could be cases, as in the pandemic, for example, where some courthouses have been more easily adapted than others. But, as I hope I have made clear, we will make sure that there will be full consultation on this. But we want to build in the legislative flexibility to allow that to take place in cases where it is needed. If I may say—

[Lord Falconer of Thoroton (Lab)]

The legislative form that this is taking, in Clause 43(1), is:

“Local justice areas are abolished.”


The Minister referred to things on the edges, such as greater flexibility between areas and particular courthouses being suitable, all of which sound quite sensible. But it is very hard to think that that requires the wholesale abolition of local justice areas. Echoing what the noble Lord, Lord Marks of Henley-on-Thames, said, could the Minister tell us what consultation has taken place already and led to the conclusion that the solution to, and the right way to deal with, what appear to be problems around the edges is to abolish local justice areas altogether?

[Lord Wolfson of Tredegar (Con)]

First, the legislative architecture, so to speak, is not just Clause 43: I have already mentioned other statutory provisions that require consultation. There has been consultation on this, although I do not have all the details of it to hand. If I may, I will drop the noble and learned Lord a note setting that out.

I was just about to thank my noble and learned friend Lord Mackay, and I apologise for standing up when he was about to speak. I respectfully say that he summed up perfectly the balance that is required between the need for a local link and for flexibility when it is useful.

Finally, as the noble Baroness, Lady Chakrabarti, explained—I received the message—Amendment 37 essentially a probing amendment for me to explain what is going on. It would formally require an inquiry into the adequacy of the criminal courts in relation to women and girls. We are doing significant work in this area, both to improve the experience of women and girls in the criminal justice system—or, in some instances, the justice system more broadly—and to better scrutinise the agencies involved. As she said, a number of agencies are involved, and this is a cross-government issue.

We are already taking specific actions. I shall set out some of them now, although it is a non-exhaustive list. We know that pre-recorded cross-examination can help to improve the experience of victims, so we are rolling out the use of this measure, known as Section 28, for sexual violence and modern slavery complainants to all Crown Courts nationally. We have introduced a single source of 24/7 support for victims of rape and sexual violence. We are working with the police and the CPS to reform approaches to disclosure, and I am sure that the noble Baroness has heard the DPP talk about that in particular. In July last year we launched a violence against women and girls strategy that contained a number of commitments to keep women and girls safe. I will not read those into the record, but I know the noble Baroness is familiar with them.

On a cross-government basis, we have cross-system governance structures to hold criminal justice system partners to account. We published the first criminal justice system scorecard for adult rape in December last year. Publishing and monitoring that data will enable us to improve how adult rape cases are handled at each stage of the criminal justice system, focusing on key metrics such as—I apologise for using this phrase because I hate it, but it is the phrase that is used—“victim attrition”. It sounds terrible but we know what it means.

Finally, there are reviews and inquiries, similar to the one proposed in this amendment, already in place. On 5 October last year the Home Secretary announced the Angiolini inquiry to investigate the issues raised by the conviction of Wayne Couzens for the murder of Sarah Everard. Among other issues, the inquiry is looking at what police forces are doing to identify and deal with misogynistic and predatory behaviour.

In October last year, the Metropolitan Police announced that it had commissioned the noble Baroness, Lady Casey, to lead an independent review of its culture and standards following Sarah Everard’s murder. The review will assess the extent to which the force’s leadership, recruitment, vetting, training, communications and other practices effectively reinforce the standards that the public should expect. Finally, the Victims’ Bill consultation, which recently closed, explored how to amplify victims’ voices, improve the accountability of criminal justice agencies and generally improve support for victims, and we will of course be responding to that in due course.

I am very grateful to the noble Baroness for raising the issue. I hope she will forgive me for not mentioning everything in response, given that her amendment is a probing one, but obviously I can assure her that this is right at the top of our priorities across government. Formally, though, I respectfully ask noble Lords not to press their amendments.

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[Baroness Whitaker (Lab)]

My Lords, I support all the amendments in this group. My support comes from my experience as a magistrate, and I appreciate the endorsements of the role of the magistrate from all around the Committee. As those who frequent magistrates’ courts will know, they are places where invariably vulnerable and some other defendants are simply not able to understand or cope with the requirements of the legal system, as my noble friend Lord Ponsonby described, so effectively they do not have a fair trial. With regard to increasing the powers of magistrates in Clause 13, magistrates too are not experts, and that is partly the point of them. In my view, the safeguards in Amendments 35 and 36 would be very useful against inadvertent injustice.

[Lord Falconer of Thoroton (Lab)]

My Lords, I have very considerable concerns, which have also been expressed by the Delegated Powers Committee, about the Secretary of State being able in effect to double the length of time that a prison sentence can last in relation to both summary offences and either-way offences. How long a person goes to prison for as a result of a magistrates’ court sentence is a considerably important factor in determining which cases are tried by a jury and which are tried by the magistrates’ court. If there is to be a change in the powers of the magistrates’ court of this dimension, it should always be done by primary legislation and not by regulatory powers. I oppose the proposal that the Secretary of State could in effect double the sentencing power of the magistrates’ court and think that should be left to primary legislation. For that reason, I support the amendment tabled by the noble Baroness, Lady Chakrabarti.

[Lord Deben (Con)]

My Lords, as a non-lawyer, I have listened to much of this debate before and today and I think this Government are going too far in taking into ministerial powers decisions which should come before Parliament. This is another example of that. I do not want the Secretary of State to be able to do this without Parliament discussing seriously what it means. Parliament ought to be much tougher about its powers being taken into the Executive.

I was first elected to the other place in 1970. Since then, Parliament has become increasingly less powerful and increasingly the Executive have increased their power. I do not believe that the Secretary of State should have this power. I believe it should be Parliament. What is more, I believe that the public think it should be Parliament. Only with the consent of the public does the legal system work.

I usually come here to ensure that lawyers do not do things a bit on their own in legal matters, and I think I am the only non-lawyer here, but I wish to say—I apologise to the noble Lord, Lord Ponsonby, a fellow recalcitrant individual. It seems to me that we have to be much tougher about things that look small because, in aggregate, they become very dangerous, because the public will lose their belief in the fact that the legal system is independent except that it is dependent on the good sense of the elected Parliament and the House of Lords in ensuring that the Executive do not overstep the mark. I do not want this Government to overstep the mark in this or any of the other things they seem to wish to take unto themselves.

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[Lord Pannick (CB)]

The Minister draws my attention to subsection (6), which allows a person to choose to do so by non-electronic means, but that is not easy to reconcile with the provision I have just referred to in Clause 19(1)(b). If the Minister can assure me that the person who is the litigant—either the claimant or the defendant—can always choose in all cases to have an oral hearing in the court, then I would be very pleased indeed to hear that.

When we debated provisions in very similar form in 2019 in Committee and, I think, on Report, the noble and learned Lord, Lord Keen, assured the House that the Government’s intention was to introduce online procedures only for civil money claims up to the value of £25,000. I ask the Minister whether that remains the intention of the Ministry of Justice. Does it have any plans to introduce these online procedures, including those covered by his Amendment 38, for any other civil proceedings?

[Lord Falconer of Thoroton (Lab)]

In relation to that point, it is absolutely plain that the wording of Section 19 applies to any sort of civil proceedings, including family proceedings. So it is plainly envisaged that this goes beyond simply money claims. Can the Minister describe the sorts of family proceedings that will be dealt with by the Online Procedure Rules and online processes? In particular, is it envisaged that this is to be restricted to the actual process, for example of getting a divorce or judicial separation, as opposed to proceedings that relate to the division of assets upon judicial separation or divorce, proceedings in relation to wilful neglect to maintain and any proceedings—in both private and public law—relating to children?

Secondly, and separately, I want to make a much more minor point. I understand that one of the things the Master of the Rolls has in mind in relation to Amendment 38 is that dispute resolution services must be used before, or as part of, the online process. The services envisaged by the amendment will themselves be online, so purveyors of online dispute resolution services will become quite significant players in the civil justice system, and perhaps in the family justice system as well. The rules may include a provision that the goodness or quality of those services can be

“certified by a particular person as complying with particular standards.”

To be helpful, in a way, the amendment says that

“‘particular person’ and ‘particular standards’ include, respectively, a person of a particular description and standards of a particular description.”

Can the Minister indicate who will determine whether the online dispute resolution services, which may become something that you as a litigant must engage with, meet an adequate standard? Will it be a judge, an official or some independent body? I would be interested to know what the Government’s intentions are in relation to that.

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I turn to hearings. Whether an oral hearing is heard in person or online is a matter for the judge in the case, and that is the current position. Whether there is a hearing at all is a matter for the judge in an individual case. A judge can—and judges sometimes do—decide that the hearing will be conducted entirely on paper. That would be very unusual in some cases, extremely usual in others. There are beginning to be protocols. The noble Lord, Lord Pannick, will be aware of the guidance put out by the Chancellor to deal with civil proceedings but there has been recent guidance put out by the Lord Chief Justice with regard to criminal proceedings. Both set out the expectations of which hearing would normally be expected to be online and which would be conducted face to face. But ultimately it is a matter not for Government Ministers but for the judges in each case.

[Lord Falconer of Thoroton (Lab)]

I am increasingly bewildered by these answers. I have obviously misunderstood this clause, but it says that the rules

“may authorise or require the parties … to participate in hearings, including the hearing at which the proceedings are disposed of, by electronic means.”

I thought that meant you could have rules that said this sort of case has to be dealt with at an electronic hearing, which does not give the judge a discretion. Is it the position that this is all subject to an overarching discretion in a judge to say that the hearing can be dealt with in person?

[Lord Wolfson of Tredegar (Con)]

That is the point I was going to come to. Here we are dealing with the rules set out by the Online Procedure Rules Committee. That is not the Lord Chancellor. I want to show the Committee that the Online Procedure Rule Committee is set out in Clause 22, and in the usual way it is a committee which is not run by the Government but is run in the way that the procedure rule committees are run, which is ultimately under the control of the judiciary. The central point is that ultimate control rests with the judiciary.

As I understood it, the point made by the noble Lord, Lord Pannick, was that two safeguards are in place in relation to the powers to make amendments in Clause 27, which states:

“The Lord Chancellor may by regulations amend, repeal or revoke any enactment to the extent that the Lord Chancellor considers necessary or desirable in consequence of, or in order to facilitate the making of, Online Procedure Rules.”


I cite—this goes back to a point made by the noble Lord, Lord Pannick, in relation to a different issue—subsection (3), which is a consultation requirement with the Lord Chief Justice and the Senior President of Tribunals, and subsection (5), which states:

“Regulations under this section that amend or repeal any provision of an Act are subject to affirmative resolution procedure”.


I suggest that that is very important. So the architecture here means that, ultimately, judges retain control, in practice, of what is heard online and what is heard in court.

However, there will be increasingly firm directions and defaults as to what is heard online and in court— I make no apologies for this. In my own area, the Commercial Court, although you can ask for an in-person hearing if there is a good reason, it is now the default that, if you have an application for half an hour or one hour in front of a judge, it will be online, because that saves time and money and provides access to justice.

On family courts, which the noble and learned Lord, Lord Falconer of Thoroton, asked about, I had discussions very recently with the President of the Family Division about this. Again, this is ultimately a matter for the judges, but he was saying that it is actually better to have certain hearings online. For example, if everything has been agreed between the parents and it is essentially a consent hearing, that will be done online. I am sure that it would be inconceivable that a public law family hearing, for example, where the court is taking a child away from parents, would be done online. But, ultimately, that is a matter for the judges.

I regret that, during the pandemic, there were cases where that had to be done, unfortunately, because of the need to protect children—because, when push comes to shove, protecting children is more important than having a face-to-face hearing. But, in normal circumstances, one would certainly expect that that sort of hearing would be face to face—but that is not a matter for Government Ministers or the Lord Chancellor.

These provisions seek to set up the Online Procedure Rule Committee, which will have the same sorts of powers for online procedures as the current rules committees have for the current procedures, whether that is the Family Procedure Rule Committee, the Civil Procedure Rule Committee, the Criminal Procedure Rule Committee or the rules committee for the Court of Protection—there are a number of different rules committees—

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The Committee must accept, as anybody who reads the speeches of the Master of the Rolls assiduously, which I am sure that the noble and learned Lord does, that this is the future of justice. It is not inconsistent with providing civil justice; it is the way of providing civil justice. At the moment, too many people are excluded. Having to go to your local court, even if for a case of £35,000 or £55,000, can exclude people. This is about improving access to justice.

[Lord Falconer of Thoroton (Lab)]

The relative of the noble Lord, Lord Thomas of Gresford, is the proof that we all want. We are also aware that the judges will have an incredibly important role in determining the rules. The fact that the judges will have an important role in determining the rules does not mean that Ministers should not tell Parliament what the Online Procedure Rule Committee has in mind. We should expect to be told, for example in relation to money claims, whether, if £25,000 is okay online, £25 million is okay online and required to be online. If that is the vision, tell us, so that Parliament can properly debate it.

In relation to family matters, I am hugely unimpressed by the Minister referring to consent orders, because almost every consent order now is already dealt with online, in the sense that it will be dealt with by emails. We should be told if it will go beyond the sorts of things that I referred to earlier—not because we will necessarily object to it but because we can then debate it. Of course, we are as keen as he is to go towards the future, but we would like to know what the Government’s view of the future is. If the Minister wants to write to us, that is fine, but on Report this might be quite important.

I will say just one more thing. I probably missed it, but I am keen to know who these people were who were going to approve the dispute resolution alternatives to court that are referred to in Amendment 38.

[Lord Wolfson of Tredegar (Con)]

Let me deal with that last point. Amendment 38 is not about approving the persons but approving the process. For example, the Online Procedure Rule Committee will say, “This is the protocol” and there will be Wolfson Mediation Services and Falconer Mediation Services and people can choose in a market who they go to. Of course, those services which offer seamless transition to the online courts service are likely to be better placed in the market, because they will have an advantage. However, it will be up to the providers to set up their services so that people can seamlessly transfer in. The Online Procedure Rule Committee will set up the protocol, so that you know what you are aiming at and the way that you must set up your online procedures so that, if the case does not settle, the data can transfer into the court process.

[Lord Falconer of Thoroton (Lab)]

What is envisaged in Amendment 38 is that, if it is Falconer Services or Wolfson Services, somebody has to say that they are okay. Who will be saying whether those services are okay?

[Lord Wolfson of Tredegar (Con)]

That is not what Amendment 38 is aimed at. It is not about accrediting mediation services. It is about saying to mediation services, “If you want people who are using your services, if the case does not settle, to be able to integrate seamlessly into the online court space, these are the protocols to do it”. It is a process point, not a mediation accrediting point. There is a separate issue out there about accrediting mediators. The noble and learned Lord will be aware that there are a number of entities that seek to accredit mediators. There are also a number of bodies such as CEDA in that space. That is an important issue but a separate one to the point of Amendment 38.

I will write about what is online because this is a much bigger point than the Online Procedure Rule Committee. Ultimately judges—I emphasise this point—decide what is online and what is not. At the moment, judges decide whether you get a hearing at all. As the noble Lord, Lord Pannick, will be aware—to give an example from my background, but it appears in other areas of the law as well—if you appeal an arbitration award to the commercial courts, the judge may say no without giving you a hearing at all, either because you do not pass the permission threshold or because you do but the judge decides to have the hearing on paper. There is therefore no substantive difference between that and what is proposed here.

As to what the Online Procedure Rule Committee will do, I am afraid I will not be able to assist the Committee because the Online Procedure Rule Committee has not been set up yet; there are no people on it and it does not exist. This legislation sets out what the Online Procedure Rule Committee will be looking at. I will, however, look again at what the noble Lord, Lord Pannick, has said, and I will write if I can.

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If you want to know how encrusted with history the law is, you need look only to Clause 42 of this Bill. Would you believe it? It is not apparent from the clause, but it sets up a procedure so that a local authority can reorganise coroners’ areas within its own area, and can do so partially if there is a coroner who does not agree, who can stay until he retires. That is a product of history and the judicial nature of the coroner’s office, which makes this area difficult to deal with. I strongly support what my noble friend said but also want consideration to be given to not imposing unnecessary processes on a family where there is no doubt as to how the death was caused, as the family simply wants to be left to cope with it.

[Lord Falconer of Thoroton (Lab)]

I strongly agree with the noble Lord, Lord Beith, but I understand that he does not contest any of the propositions put forward by my noble friend Lady Chakrabarti and the noble Lord, Lord Thomas of Gresford. They are dealing with cases where people are desperate to find out what happened and want a proper hearing.

I underline the point made by the noble Lord, Lord Thomas of Gresford, which is that the key issue here will be in the next group dealing with the provision of legal aid, where appropriate, in cases where there is a dispute. We are not talking about that now, but it is vital to there being a level playing field.

This group of amendments is, in effect, trying to bring the coronial system into line with its current role to allow a proper contested hearing, where appropriate, if there is an issue about the cause of death, rather than it being the administrative process it previously was. There needs to be that change.

The biggest example of why these amendments are right and the Government’s position is wrong is in the amendment proposed by my noble friend Lady Chakrabarti on what is currently Clause 38. Clause 38 amends Section 4 of the Coroners and Justice Act 2009. The 2009 Act allows the coroner to stop an investigation where the cause of death becomes clear after a post-mortem examination. Section 4 also provides that the coroner can, if asked, give reasons after he has discontinued the investigation. That is not apparent in this Bill, but comes only in Section 4 of the 2009 Act.

Based on not just a post-mortem examination but any other matter the coroner thinks relevant, if he is satisfied that the cause of death has become so clear that he thinks an inquest is no longer appropriate, he can simply stop the whole investigation, without reference to the family, even if they are desperate for an inquest. The coroner’s only obligation is to explain why he or she did that after the event. That is the effect of Clause 38, so my noble friend Lady Chakrabarti is absolutely right to say there should be safeguards, and the key safeguard is that proposed in Amendment 40, subsection (4)(2A)(d):

“the coroner has invited and considered representations from any interested person”,

which would include the family. Why do the Government not think there should be such a requirement? What is the purpose of a justice system that can reach a decision without hearing from interested parties, and whose only obligation is to explain why it took that decision after it has been made, without giving the family the opportunity to comment?

[Baroness Chapman of Darlington (Lab)]

My Lords, I commend my noble friend Lady Chakrabarti for tabling these amendments so quickly; I am pretty sure we would have tabled something almost identical. She is right in everything that she said, and she did so succinctly but effectively. I shall address Amendments 40, 42 and 43 in her name as well as Amendments 41, 44, 45 and 53 tabled by my noble friend Lord Ponsonby.

As the noble Lord, Lord Thomas of Gresford, said, there is a theme running through this group: putting families at the heart of this process. There are long-standing concerns about the way that the process often takes place. It is unfortunate that the Government have not taken this opportunity to consider the issue as fully as they could have done. We are worried that efficiency and streamlining of processes should not in any way bring about a sense that these matters are to be treated with less solemnity or seriousness than they should be. We are very nervous that the Government are permanently changing procedures because of a backlog following Covid-19; we understand that that needs to be dealt with, but the needs of families must be central to the Government’s thinking here and at the moment I do not think they are.

We all appreciate that there is widespread inconsistency with coroners and that something of a postcode lottery is developing. I recommend the Justice Select Committee’s report to Members of the Committee. It is a thorough and excellent piece of work; the Government would do well to consider it and implement more of its recommendations. One of the suggestions that the Select Committee made was the introduction of a national service. As I say, the Government have missed an opportunity to go much further than the measures before us, which I am afraid seem motivated predominantly by a need to make up ground after the pandemic.

The current law, the Coroners and Justice Act 2009, holds that where a coroner has commenced an investigation, they must proceed to an inquest unless the cause of death becomes clear in a post-mortem examination. The Government are arguing now that cause of death can be established by what they call “other means”, and they give the example of medical records. They need to be incredibly careful not to create a situation where the justification for discontinuing is based on evidence that cannot be challenged by the family or by others.

My good friend Andy Slaughter in the other place gave a long list of examples, which he probably got from inquest, showing clearly the need for safeguards, particularly the need to allow the family to consent to discontinuation and for such consent to be properly informed. I shall read from Hansard an example that he gave, of Laura Booth. It will just take a minute to read it, but I think it will help us to appreciate the seriousness of the issues that we are considering:

“Laura sadly died on 19 October 2016 at the Royal Hallamshire Hospital in Sheffield. Laura went into hospital for a routine eye procedure, but in hospital she became unwell and developed malnutrition due to inadequate management of her nutritional needs. The coroner overseeing the investigation into Laura’s death was initially not planning to hold an inquest because the death was seen to be from natural causes. However, Laura’s family and BBC journalists fought for the coroner to hold an inquest. The inquest reached the hard-hitting conclusion that Laura’s death was contributed to by neglect. A prevention of future deaths report issued by the coroner to the Royal Hallamshire Hospital noted serious concerns about the staff’s lack of knowledge and understanding of the Mental Capacity Act 2005, and recommended that families should be better consulted in best-interests meetings.”—[Official Report, Commons, Judicial Review and Courts Bill Committee, 18/11/21; col. 334.]


So this really matters. Inquests play a vital role in making sure that loved ones understand the reasons for a death.

Amendment 41 would provide that the Lord Chancellor should establish an appeals process for families who disagree with the decision to discontinue an investigation. We think that is an important safeguard, and it would rightly respect the interests of those whose closest have died. We see it as an anomaly that no right of appeal exists for families in that situation.

Amendment 44 would prevent an inquest being conducted by telephone or other means that were audio-only. We think that audio-only risks hindering engagement with families, and it may be inappropriate in these circumstances.

Amendment 45 would ensure that remote inquest hearings and pre-inquest hearings were still be held in a manner accessible to the public. We think this is important for public confidence, for scrutiny and for challenge. We are worried that measures in the Bill designed to streamline processes will make it more difficult for families to be active participants in the process when all the evidence is that we should be taking steps to help their participation.

We strongly support Amendment 42, which would ensure that inquests were not held without a hearing if that was against the wishes of the family. To do so, as well as being incredibly insensitive, would deprive the family of the opportunity to explore all available evidence and limit their ability to scrutinise the accounts provided by relevant authorities, including by hearing oral evidence and questioning key witnesses. I am sorry the Government are taking the route that they are taking, and I am sure we will want to continue to press them on this as we progress.

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[Lord Wolfson of Tredegar (Con)]

Of course I understand that point, in the sense that I too have read the material of people who have been involved in inquests. I have read some of the material from the various groups which have been lobbying for changes in this area. I hope that I have set out the Government’s position fairly. As we all recognise, the point being made to me is fundamental. I do not want to keep repeating it in response to each amendment, but I certainly accept that what I have just said underpins the Government’s response to a number of these amendments. Therefore, I absolutely accept and understand the noble Baroness’s position; that is, because she disagrees with me on this fundamental point, necessarily she will disagree with me on a number of these amendments because they are underpinned by the same point—

[Lord Falconer of Thoroton (Lab)]

Whether the process is inquisitorial or adversarial, surely you are entitled to basic fairness. This means you are entitled to having a say on what is going on and an opportunity to make proper representations. This is the case whether you are either a family member saying, for example, that your loved one is the victim of a criminal offence by the police, or you are a police officer being accused of manslaughter. Indeed, the Minister has just said that there would be a coroner at the inquest. Therefore, I am not sure why—whether it is inquisitorial or adversarial —you are to be deprived of that basic fairness.

[Lord Wolfson of Tredegar (Con)]

The fundamental point is: who is the “you”? Who are the parties to an inquest? As I was saying earlier, you do not have “parties” in inquests, in the same way that you do in adversarial proceedings. Of course, there are inquests where legal aid is provided and family members—or, indeed, other people—turn up with lawyers. However, as a Government, we certainly do not want the general inquisitorial procedures, in the normal run of an inquest, to become adversarial. I understand that this is a point of principle between us; this is not a point of detail.

This point will underpin a number of the responses which I am going to give. I turn to Amendment 42, which would require the coroner to obtain consent from interested persons, including bereaved families, before determining whether to deal with an inquest on the papers. Clause 39 has been designed to give coroners the flexibility to conduct inquests without a hearing, where there is no need to hold one. They would exercise that power judiciously, because they are judicial officeholders, in cases where they consider them to be non-contentious, where there is no concern about the cause of death, or where the family have indicated that they do not wish to attend a hearing.

To return to the point I started with: because coroners are independent judicial officeholders, introducing the concept of consent into their decision-making process would cut across their judicial independence and fetter their discretion. The coroner would still be required to hold inquests with a hearing, in cases which require one. The Chief Coroner would issue guidance to coroners on how they should exercise their discretion.

Amendments 43, 44, 45 and 53 all relate to remote hearings. The purpose of Amendment 43 is to ensure that additional safeguards are met before a coroner can hold a remote hearing. The position here is that coroners have always been able to conduct hearings with virtual elements, but the coroner and the jury, if there is one, must be physically present in the courtroom. Clause 40 allows all participants to participate in a remote hearing.

As we have said on previous groups about magistrates and jurors, throughout the pandemic, coroners’ courts have also worked very hard to keep their services running. They have taken advantage of the benefits of remote hearings to keep inquest participants safe. Key witnesses, who often could be front-line doctors, have been able to focus on their primary role and attend remotely. Clause 40 ensures that coroners can continue to operate remotely, when they regard it as appropriate. Again, we expect that, being judicial officeholders, coroners would work with interested persons to address any concerns that they may have regarding remote hearings. Again, the Chief Coroner is expected to provide guidance on any law changes.

Amendment 44 deals with remote hearings. The short point here is that there may be instances where participants might prefer or need to participate in a remote hearing only by audio, without video; perhaps that is the only way that they can participate if they are based abroad, for example, and there are technical limitations to how they can access the hearing. As we understand it, the amendment would exclude those participants from participating in the hearing remotely—