Judicial Review and Courts Bill

Baroness Chapman of Darlington Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, I apologise to noble Lords for not being here for the opening speeches of this debate. I informed the Minister earlier today, and he was generous enough to accept that.

I congratulate my noble friend Lord Hacking on his entertaining speech—I do not know whether we are calling it a maiden speech; I am new here, and it struck me that he made his maiden speech before I was born. I had not previously heard the term “Peeress”, so that was a new one. I do not have a hat, although I am very happy to explore the option of wearing a hat in the Chamber. I look forward to seeing him in a hat of his own in the future.

Unfortunately, we on these Benches do not agree with the Government on the need for many of the sweeping changes that they are proposing in the Bill. Colleagues in the Commons tell me that the Ministers there worked collaboratively with us but, unfortunately, were unable, at those stages, to agree the changes that we had hoped to see and that, we maintain, would vastly improve the Bill.

I will be completely straightforward about it: we do not quite understand why changing the judicial review process is a government priority at this point. The Ministry of Justice is trying to fix something that is not broken, and, as my noble friend Lady Chakrabarti said, judicial review is a vital protection, founded on the rule of law. The Government are doing this while failing to deal with issues that are a problem, such as the horrendous backlog in access to justice. We are concerned that the Government’s changes to judicial review could deter members of the public from bringing claims against public bodies, leaving many victims of unlawful actions without redress.

It is always interesting to think through how we get to places. An expert panel was set up to advise us, and we have heard from the leader of that process this evening. It seems to me that Ministers were not completely satisfied with the conclusions of that process. Many of us can detect that the reforms now proposed are not as far-reaching as initially heralded, and we wonder whether, in the near future, there is to be another Bill that the current Secretary of State will initiate. We sincerely hope that that will not be the case.

The proposals are based on figures that the Government have accepted are inaccurate in that they underestimate the number of successful cases. With the Government’s review of the Human Rights Act on the horizon, as others have referred to, this is only the latest proposal to make it harder for ordinary members of the public to hold public institutions to account.

Where the Bill deals with coroners, we are optimistic that reforms will help, but the Government have missed the opportunity, as the noble Lord, Lord Beith, observed, to take sufficient advantage that this Bill allows. Particularly, we want to return to the issue of support for bereaved families at inquests where the state is represented. At the moment it is not justice: it is justice denied, and we will be returning to this.

As we have heard, there are reservations—if I can put it that way—about the Bill. If the noble and learned Lord, Lord Etherton, were to bring forward an amendment, as he outlined, we would be minded to support it.

The equalities statement that the Government very recently produced—it was only published after the conclusion of the Commons stages—states on page 5 that

“the removal of the Cart JR route is applied uniformly to any attempt to challenge a permission to appeal decisions of the tribunal, regardless of the subject matter at issue, the chamber of the First-tier Tribunal, from which the appeal originates or the protected characteristics of the claimant. We acknowledge, on the basis of the evidence and analysis, that there will potentially be a large number of claimants with certain protected characteristics of race and religion or belief in the affected group—i.e. those who are presently entitled to bring Cart JRs and would no longer be able to.”

The Government said that these indirect impacts are likely to be very small, given the low number of cases in which the claimant achieves a successful outcome. It may be true that the number of people affected is small, but if the consequence of the impact on that individual is as serious as imprisonment or worse, we would argue that it is right for the Government to consider this further.

The Law Society president has said that

“removing the option of recourse to judicial review in any area, let alone one as complex as immigration, risks injustice, not only for those people whom the court would have found in favour of, but also for the much larger number of cases where settlement is achieved only under the threat of judicial review.”

These are not reflected in the figures to which the Government have been referring.

We are concerned about access to assistance with digital procedures for those who may struggle. We want to know how this will be done and what safeguards the MoJ intends to put in place to ensure that nobody is disadvantaged. The Government say they are aware that some users might not have the means or the skills to access digital services and that they are going to provide assisted digital support designed to prevent those who have difficulty engaging with digital service being excluded. This is welcome, but it is vital that this good intention is supported by well-planned and accessible support, available at the appropriate time and of sufficient quality. We are yet to be convinced that the Government have properly thought through, in sufficient detail, how this is going to happen.

We do not want to stand in the way of improving our courts. We know that there needs to be substantial improvement, but overall, we are not persuaded that the Bill addresses the right issues or delivers the right solutions. We will seek to remove Part 1 and improve Part 2. We look forward to working with noble Lords on all Benches and, I hope, with the Government as well in this endeavour.

Judicial Review and Courts Bill

Baroness Chapman of Darlington Excerpts

Committee stage
Thursday 24th February 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

I shall quickly speak to Amendment 39, in the name of my noble friend Lord Ponsonby, which seeks some assurances from the Minister on how this will work in practice. We accept the good intentions of the Government in this, and we welcome Ministers making it clear that they understand that not everyone is going to be able to use online procedures and some may feel that assistance in starting or progressing their case is needed. We support the extension of digital procedures, but we think it is very important that users receive an equal service no matter which channel they engage through.

We know that, despite the best intentions of everybody involved, everyday pressures on the ground can sometimes conspire to make unavailable the assistance that, ideally, we would all like to see, or to not deliver it in an appropriate way. We have tabled this amendment because we want assurances from the Minister about provision for digitally excluded people. Research from Lloyds Bank indicates that some 16% of the population do not have the skills to participate digitally. I have colleagues on the Labour Front Bench whom I frequently assist with Divisions, so I do hope they never find themselves subject to these procedures. It is not always obvious, though, who is going to need this support—I am not going to name names. Those who, ordinarily, might be able quite easily to access services online might struggle when dealing with complex issues because they are at a time of extreme crisis in their lives. Others, I am sure, could take great advantage of being able to complete processes digitally. We need to be confident that we are not putting in place systems that leave some individuals disadvantaged.

In Committee in the Commons, there was a long discussion about this issue, whether the definition in the Bill of those who need support was sufficient, and whether paper-based processes should be available on demand. Can the Minister assure us that a user-centred approach will be taken at every stage and in every case, so that the means of engagement is always appropriate to the individual and is offered, rather than that which may be most convenient for the service provider?

I am slightly nervous about the emphasis on the service seeking to direct as many users as possible through primary digital channels and this becoming the priority for the service, even when an individual may not feel completely comfortable with that approach. I know that during earlier stages of the Bill, Ministers have been as reassuring as possible on these points, but we still need more reassurances about the practical reality. Perhaps the Minister can say how he intends to monitor implementation of these measures, so that we can make appropriate interventions should the need arise.

[Lord Pannick (CB)]

My Lords, the Minister rightly said that his Amendment 38 is a modest one, but this group of amendments raises more general concerns, as the noble Baroness, Lady Chapman, has just explained.

The noble Lord, Lord Deben, may be interested to know, in the light of his earlier observations, that Clause 19 gives the Minister a power to make rules that require that specified kinds of legal proceedings “must” be conducted, progressed or disposed of by electronic means. The Minister could say, in principle, that all cases in the Court of Appeal of a civil nature will not be conducted by oral hearings; they will disposed of by pressing a button on the computer, and the judge will then decide. That is quite a remarkable power, the noble Lord may think.

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[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.

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments in this group relate to coroners’ inquests, and include government and non-government amendments. I will begin with those tabled by noble Lords who have spoken and then come to the government amendment at the end.

Before I do that, I should inform the Committee that the right reverend Prelate the Lord Bishop of St Albans has kindly sent me a note, because his Amendments 50A and 50B are in this group. As he is serving elsewhere, in Committee on the Building Safety Bill, he is unable to join this Committee this afternoon. I do not know whether this is normally done, but unless the Committee objects, I propose to write to him setting out substantially what I would have said had he been here and I will circulate the letter, because even though the amendments are not formally moved, the right reverend Prelate raises points which he has raised in the House on previous occasions.

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[Lord Wolfson of Tredegar (Con)]

I was not seeking to take any procedural point. Rather than take time this afternoon, because we have not had a debate on the amendments, I will set out the position in writing and copy the letter appropriately.

Before taking the amendments in turn, perhaps I may make an important point which is central to this discussion, which is that coroners—

[Baroness Chapman of Darlington (Lab)]

I am sorry, I know that we are pushed for time and there are important matters that we want to get on to. I do not know about other noble Lords, but I would appreciate hearing the Government’s position on Amendments 50A and 50B. Is that possible?

[Lord Wolfson of Tredegar (Con)]

It certainly is. I had prepared to respond to the amendments and am happy to do so if the Committee finds that more helpful. I see some nodding heads, in which case I will do it that way instead. I will obviously direct the right reverend Prelate to Hansard. I am very grateful.

A central point which is really important is that coroners are judicial office holders—whether they go back to William the Conqueror is not directly relevant for these purposes, although it was interesting. That point is important: they are not administrators or decision-makers; they are judicial office holders. Ultimately, it is therefore up to the coroner, circumscribed by statute, how to conduct their investigations and inquests. I respectfully ask the Committee to bear that in mind when considering a number of these amendments, to which I will now turn.

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[Lord Wolfson of Tredegar (Con)]

I can accept two points there. I can accept that I and the Government will reconsider it. We certainly will think about it. This is a bit of a chestnut point, if I may say so; it has been discussed on a number of occasions. But the Government’s current position is that we want coroners’ inquests to be inquisitorial and not adversarial. Secondly, I accept, as a consequence of that, that we do not have adversarial safeguards. But that is consequent on the first point; the inquests are not adversarial.

There is a real problem, I would suggest, in changing the nature of a coroner’s inquest to being adversarial. I accept there will be particular inquests where it is appropriate for people to be legally represented. I do not want to mix the groups up, but we will discuss in the next group the issues of legal aid, exceptional case funding, et cetera. But the central fact is that the inquest is there to determine who the deceased is, where he died—I will say he—when he died and how he died, but not why he died. That is an important point.

[Baroness Chapman of Darlington (Lab)]

We are getting to the heart of it, in a sense, because the Government contend that these processes are not adversarial. I understand why they are doing that. However, I am increasingly of the impression that what the Minister has just said has absolutely no grounding in reality. The lived experience of extremely vulnerable people in this context reveals that the processes are deeply adversarial. Their experience does not align with what the Minister has just said. It is unfortunate that the Government do not seem able to appreciate this in their consideration of these amendments.

[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 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—

[Baroness Chapman of Darlington (Lab)]

That is not the intention; it is that the hearing in its entirety should not be conducted by audio only. The amendment would not prevent someone participating by audio only.

[Lord Wolfson of Tredegar (Con)]

I am grateful for that clarification, but the same point would apply. If the only people who are interested—I am using that word in the technical sense—in the inquest can participate only by audio link, the coroner would have to either not hold the inquest and adjourn it or hold it, so to speak, in a room, despite those interested people not being able to be there. I will consider again whether what the noble Baroness has said resolves my concerns, but I do not think that it does. Certainly, we are concerned to make sure that an inquest can still go ahead when, for some reason, everyone relevant can participate only by way of audio.

I assure the noble Lord, Lord Thomas of Gresford, that what underpins this and Parliament giving coroners these powers is concern for families. We want people to be able to participate, and we are conscious that some people may only be able to participate through technical means or audio only.

Amendment 45 seeks to ensure that remote inquest hearings and pre-inquest hearings are heard in a manner that is accessible to the public. In this regard, Clause 40 is designed to complement Clause 166 of the Police, Crime, Sentencing and Courts Bill, which is currently in the other place. Clause 166 provides for wider remote participation in court proceedings, under the direction of the court, and it covers a number of courts, including coroners’ courts. So, Clause 166 will ensure that justice remains accessible to the public, regardless of how the hearing is conducted. Again, the Chief Coroner will provide additional guidance on the use of remote hearings to ensure that coroners’ inquest hearings remain accessible to the public, as set out in Rule 11 of the Coroners (Inquests) Rules 2013.

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Moved by

[Baroness Chapman of Darlington]

47: After Clause 42, insert the following new Clause—
“Publicly funded legal representation for bereaved people at inquests
(1) Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows.(2) In subsection (1), after “(4)” insert “or (7).”(3) After subsection (6), insert—“(7) This subsection is satisfied where—(a) the services consist of advocacy at an inquest where the individual is an interested person pursuant to section 47(2)(a), (b) or (m) of the Coroners and Justice Act 2009 because of their relationship to the deceased; and(b) one or more public authorities are interested persons in relation to the inquest pursuant to section 47(2) of the Coroners and Justice Act 2009 or are likely to be designated as such.(8) For the purposes of this section “public authority” has the meaning given by section 6(3) of the Human Rights Act 1998.””Member’s explanatory statement
This new Clause would ensure that bereaved people (such as family members) are entitled to publicly funded legal representation in inquests where public bodies (such as the police or a hospital trust) are legally represented.

[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.

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[Lord Wolfson of Tredegar (Con)]

The noble Lord has not read it yet, but I will take the bravos in advance in case I get brickbats later. I hope it will be a piece of work which will find support. Given that ongoing work and while recognising there is a point of principle between us—I absolutely accept that—none the less, for today’s purposes, I respectfully invite the noble Baroness, Lady Chapman, not to press the amendments.

[Baroness Chapman of Darlington (Lab)]

Clearly, we will not push the amendments to a vote today. It is pleasing to hear the Minister recognise the problems that we are raising, so at least we have got somewhere. Too often, Ministers say, “Well this isn’t a problem; we don’t need to fix it”. I do not think that is what the Government are saying. I am pleased that the Minister has agreed to meet Inquest; that will be very helpful. We obviously reserve our right to come back to this matter at future stages.

Amendment 47 withdrawn.

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[Lord Marks of Henley-on-Thames (LD)]

My Lords, we fully support the amendment moved by the noble and learned Lord. There is nothing that I wish to add. It is plainly sensible. There is no distinction between the civil courts and tribunals, and it is an obvious case for orders in respect of costs.

[Baroness Chapman of Darlington (Lab)]

Similarly, I indicate our hope that the Government will bring something forward. Should that not be the case, we will happily play our part in doing whatever we must to move this on.

[Lord Wolfson of Tredegar (Con)]

My Lords, as this is the last group in Committee, it is nice to end on a point of general agreement rather than discord. Whoever put the groups together, I take my hat off to them.

I respectfully welcome the proposals in Amendment 51, tabled by the noble and learned Lord, Lord Etherton, and am grateful to him for the time that he has given to me and my officials in discussing this. The amendment would allow pro bono cost orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. This is a helpful proposal which will not only provide additional funding to the Access to Justice Foundation but—moving from pounds, shillings and pence to a statement of principle—importantly signals our support for the excellent work that is done pro bono by the legal profession up and down the country. Indeed, in the last group we heard an example of that from many years ago.

As I have already explained in meetings with the noble and learned Lord, we have two concerns about the amendment as drafted, though I underline that I am making not a point of principle but points of drafting. First, as drafted, it would apply to a very wide range of tribunals of different types, including tribunals for which the Government are not responsible; for example, professional disciplinary tribunals, such as those of the General Medical Council. I am sure that the noble and learned Lord and the Committee would agree that it would not be right for the Government to impose this measure on those tribunals that the Government are not responsible for, in circumstances where we have not been able to engage with them or seek their agreement. That is the first point: the ambit of the tribunals which we are talking about, although those for which the Government are responsible are, for these purposes, the vast majority, so that carve-out will not have too much of a practical effect, I hope.

There is a second point: issues of territorial extent. Again, as drafted, in Wales, it could impose measures on tribunals that are administered by the Welsh Government, while in Scotland, judges would not be able to make pro bono costs awards, even when they are dealing with reserved matters in reserved tribunals. That, again, is a drafting point I am confident we can discuss and agree on.

Therefore, I will formally invite the noble and learned Lord to withdraw his amendment, but I assure him on the record that I and the Government remain entirely supportive of the principle behind his amendment. As he says, my learned friends the Attorney-General and the Solicitor-General are also supportive of the measure. The noble and learned Lord and I have met on a couple of occasions now to discuss the amendment ahead of today’s debate. I will certainly continue to discuss this issue with him ahead of Report, and I am very hopeful that we will be able, between us, to do something that will resolve this issue and meet the point he seeks to address in his amendment.