Judicial Review and Courts Bill

Debate between Lord Thomas of Gresford and Baroness Chapman of Darlington

Committee stage
Thursday 24th February 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, with the permission of the Committee, my noble friend Lady Chakrabarti and I have had a conversation and, in order to move things along, we have agreed that I will speak to her Amendment 49 as well as Amendments 47 and 48.

Having listened to the Minister’s response to the last group, I am incredibly disappointed at the lack of willingness to engage on the issues we were discussing. I really do not hold out much hope on this group, but these are matters that are of such importance. We have tried pushing this issue in the past via other Bills. Perhaps Covid and perhaps just more understanding and the work of Inquest are getting us to a point where the pressure to resolve this problem is increasing substantially. I know that the Minister understands the point we are trying to make. I get that he has a position he needs to defend, but he understands where we are coming from, so it would be welcome if he could try to do something through this Bill to try to improve the situation for bereaved families at inquests.

Amendment 47 would ensure that bereaved people, such as family members, are entitled to publicly funded legal representation at inquests where public bodies, such as the police or hospital trusts, are legally represented. Amendment 48 would remove the means test for legal aid applications for legal help for bereaved people at inquests. Amendment 49 would insert a new clause that would bring the LASPO Act into line with the definition of family used in the Coroners and Justice Act 2009.

The problem that we are getting at with these amendments is well understood. There are plenty of examples to which we can all refer. This is fundamentally about fairness. I pay tribute to the work of Inquest—we have referred to that organisation a couple of times—which has worked so hard on more than 2,000 cases, with 483 families currently receiving its support.

People who die in police custody, prison, hospital, a care home or a disaster such as Grenfell or Hillsborough need support in order to secure effective understanding and scrutiny of what has taken place. At Second Reading and again just now, the Minister said that the state did not need to fund representation for families as our system is not adversarial. I do not want to go through the whole argument again, but it is just nonsense. If relatives have to fight to discover the truth about what has happened to their loved one, with lawyers putting events in a way that suits the institution and with points that are contestable not allowed to be contested, that is in effect adversarial. The family’s desire to uncover the truth and the institution’s desire or need to conceal it, or to be insufficiently curious about discovering what has happened, are competing aims.

The two parties—I am not going to get into what and what is not a party: we know what we are talking about—might not be adversaries in a formal legal sense, and we understand that, but their competing, different interests mean that there is an inequality of arms which results in injustice for a bereaved family. That is what is happening. I do not believe for a minute that the Minister thinks I am wrong about that; it is just that at the moment he does not feel able to move the Government forward to do something about it.

Inquests are intended to seek the truth and to expose unsafe practices and abuses of power. They are about learning, so that lessons can be taken and future deaths prevented. This opportunity to learn is undermined by the pitting of unrepresented families against multiple legal teams defending the interests and reputations of state and corporate bodies. Public bodies have unlimited access to legal representation at public expense. Too often, families have absolutely nothing. At one of the most difficult periods in a family’s life, they are unrepresented.

Legal aid is granted under the Government’s exceptional funding scheme only if it is considered that there is a wider public interest in the inquest or if it is an Article 2 inquest, where a death was in state custody or it could be argued that the state failed to protect someone’s right to life. It must also meet the financial means test. Removal of the means test in these cases will be helpful, but given that asking people to demonstrate Article 2 qualification is such a high bar, this will not be sufficient to correct the injustice that many families are experiencing now. The evidence for change is completely overwhelming. I hope the Minister will not rely solely on the adversarial/inquisitorial argument. Frankly, it is beneath him. I hope that he will feel able to persuade his colleagues of the need for change. I will say no more. I think that is sufficient to make the point today, but I do not see a situation where we will not come back to this on Report or in future Bills. I gently suggest to the Minister that we have a Queen’s Speech coming up. This is such a problem for the coroners service across the country that it might be worth a Bill in its own right. We could then do justice to the service and to the experience of bereaved families. We are not doing so at the moment.

[Lord Thomas of Gresford (LD)]

My Lords, in the mists of time I was articled to Maurice Evans, who was the coroner on the inquest of the 266 miners who lost their lives in the Gresford disaster. The mine owners were represented by Hartley Shawcross, later the chief prosecutor at Nuremberg, Attorney-General in the Attlee Government and after that a very distinguished Member of this House. On the other side for the miners there appeared pro bono Sir Stafford Cripps, who later became the Chancellor of the Exchequer in the Attlee Government. There was equality of arms there. That is what it means, that is what it is about and that is what these amendments are about.

Inquest has very helpfully set out a schedule to its briefing in which it outlines what representations have been made over time. In 1999, Lord Macpherson in the Stephen Lawrence inquiry said:

“That consideration be given to the provision of Legal Aid to victims or the families of victims to cover representation at an Inquest in appropriate cases.”


That is 23 years ago. The Corston report and the review led by the noble Lord, Lord Harris, made similar recommendations. His Honour Judge Sir Peter Thornton QC was the first Chief Coroner appointed and I knew him very well; he was in my chambers. He made his report in 2015-16 and said:

“The Chief Coroner … recommends that the Lord Chancellor gives consideration to amending his Exceptional Funding Guidance … so as to provide exceptional funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested persons.”


You could actually take that and make it the amendment we are seeking to put before the Government. Dame Elish Angiolini carried out an independent review of deaths and serious incidents in police custody in 2017 and put it this way:

“For the state to fulfil its legal obligations of allowing effective participation of families in the process that is meaningful and not ‘empty and rhetorical’ there should be access for the immediate family to free, non-means tested legal advice, assistance and representation immediately following the death and throughout the Inquest hearing.”


The right reverend Bishop James Jones in the Hillsborough review said that:

“Publicly funded legal representation should be made available to bereaved families at inquests at which a public authority is to be legally represented … the requirement for a means test and financial contribution from the family should also be waived in these cases. Where necessary, funding for pathology or other expert evidence should also be made available.”


I could go on because there are a large number of these quotes but, coming closer to the present time, the Joint Committee on Human Rights in 2019, considering the detention of young people with learning disabilities and autism, said that:

“Families must be given non-means tested funding for legal representation at inquests where the state has separate representation for one or more interested persons.”


The Justice Select Committee, reporting last year in the other place, said:

“Bereaved people should not be put through the difficult and time-consuming process of meeting the exceptional cases requirements and the means test for legal aid where public authorities are legally represented at public expense at the inquest into the death of their loved one. The Ministry of Justice should by 1 October 2021, for all inquests where public authorities are legally represented, make sure that non-means tested legal aid or other public funding for legal representation is also available for the people that have been bereaved.”


Your Lordships will see that this is not a single voice calling. Everybody who has looked at this particular problem realises that there is no equality of arms, as there was in the Gresford disaster inquest, and that families suffer as a result. They cannot put their case adequately. It is time that the Government should grasp this and not go back to talking about coroners being inquisitorial, therefore we cannot have proper legal representation and so on. It is just shutting your eyes to what is going to happen, and I am sure it is going to happen with the quality of advocacy of Inquest and other people. I hope it will happen through this Bill if we can get together and put the proper amendment forward.

Divorce, Dissolution and Separation Act 2020 (Consequential Amendments) Regulations 2022

Debate between Lord Thomas of Gresford and Baroness Chapman of Darlington

Tuesday 8th February 2022 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, we support this instrument. I have just a couple of questions. I am surprised that the question of jurisdiction was not dealt with in the Act itself. Perhaps the Minister has some explanation for that, which I have not perceived.

My second question relates to paragraph 7.7 of the Explanatory Memorandum, which says:

“The Government’s policy intention behind the reformed law”,


which in turn has resulted in the consequential amendments contained in this instrument,

“is that the decision to divorce should be a considered one, and that separating couples should not be put through legal requirements which do not serve their or the state’s interests”.

I find that a bit puzzling, and I wonder whether the Minister can help me with what it is directed to. However, as I say, we support the amendments.

[Baroness Chapman of Darlington (Lab)]

My Lords, we, too, support the regulations. The provisions are primarily to reflect the new terminology associated with the reformed divorce, dissolution and separation proceedings in the Act, as well as to add a jurisdictional ground for the newly created joint applications.

The Act has not yet come into effect, but we hope that it will soon and that there is no further delay. I think I heard the Minister confirm that the date will be 6 April 2022—he is nodding, so I take that as an indication that that is correct—which is very pleasing. My party fully supports that Act and the changes to divorce, dissolution and separation that it will introduce. As a result of this Act, it will be much easier for couples to divorce in cases where the relationship has irretrievably broken down.

We hope that this will end some of the adversarial system currently in place. A spouse will no longer be able to object to or oppose a divorce, and couples will no longer have to apportion blame for the breakdown, leading, we hope, to less conflict and acrimony for all involved. A simple statement that the marriage has irretrievably broken down should be sufficient for proceedings to commence. I am very pleased to welcome the measures that the Minister has outlined today.