Legal Aid for Inquests

Jo Stevens Excerpts

Wednesday 10th April 2019 Westminster Hall

[Stephanie Peacock]

My hon. Friend makes an important point: the system is completely unfair. The Government and their agencies are given a blank cheque, whereas victims are not. It is not just the families of those lost and charities such as Inquest telling them that. Reports have proposed the necessity for changes for years, yet over the last few years the weight of evidence has mounted. Dame Angiolini in her report on deaths and serious incidents in police custody; the Right Rev. James Jones in his report on Hillsborough and the experiences of families; Lord Bach; two chief coroners; Baroness Corston; Lord Harris; the Joint Committee on Human Rights; the Independent Review of the Mental Health Act; and agencies, including the Independent Office for Police Conduct, have all outlined the need for change. Central to the reports of Dame Angiolini and the Right Rev. James Jones were the voices of families speaking about the impact of the inquest process on their wellbeing, much like the testimonies we have heard today.

In response, the Government launched a call for evidence in July as part of their review of legal aid for inquests. What followed was a Government submission document that was riddled with errors, strewn with inaccuracies and in no way befitting the seriousness of the subject. The short turnaround time for submissions left those whom the Government should have been doing their utmost to hear from unable to sufficiently offer their thoughts.

Furthermore, the document made no explicit mention of, and no adequate attempt to hear from, bereaved families. After its so-called consultation, it was therefore of little surprise that the, in February Ministry of Justice decided to ignore the weight of evidence to the contrary and refused the call for non-means-tested legal aid for inquests where the state has representation.

[Jo Stevens (Cardiff Central) (Lab)]

The Government’s normal consultation period is 12 weeks. Does my hon. Friend share my surprise that it was six weeks for this consultation, which was held over the peak summer holiday period? Does she share my suspicion about its timing?

[Stephanie Peacock]

I absolutely share my hon. Friend’s concern and suspicion. I hope the Minister will answer that point.

For families to fully and effectively participate in the inquest process, they should have access to free automatic non-means-tested legal representation throughout. The Labour party has pledged to provide that, after listening to those who know best, but the Government remain in denial. However, the playing field must be levelled, the inequality of arms addressed and access to justice made a staple of bereaved families’ experience throughout inquests.

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[Victoria Prentis (Banbury) (Con)]

I had not planned on speaking, but when I saw the debate’s title, I realised that I come at the issue from a variety of angles and, sadly, with a great deal of experience. In about 1994, as a junior lawyer, I was sent—because I was cheap, I suspect —to sit in on inquests concerning elderly people who had died in old people’s homes. In those days, it was common practice for us to provide a report for insurance companies, which even junior lawyers were considered capable of, and inquests were viewed as the place where we could garner information.

As a junior lawyer, I thought that was exciting, and I was pleased to see a system that was inquisitorial and not that adversarial, and where real facts were teased out that could be of use, or not, to insurance companies that wanted to protect their assets from later claims. I remember being excited by the ancient nature of the coronial system, by how flexible it could be and by how it can adapt to needs today and later on.

Ultimately, I became a Government lawyer for 17 years and specialised in article 2 inquests. [Interruption.] I am glad to be described as the best of the best, and we were—indeed, we are, incidentally. In that respect, I had the privilege of taking part in some very sad inquests, including many relating to Iraq and Afghanistan, Mr Litvinenko’s inquest, the 7/7 bombings inquests, and far too many about prisoner deaths. As a Government lawyer, I hope that I was able to help and counsel families, and that we were able to come to the truth of what happened in many of those tragic situations. I also, rightly, protected the Government’s assets in terms of secret material, which is what I was usually there for.

[Jo Stevens]

The hon. Lady is making an interesting speech, but does she agree that it illustrates exactly the inequality of arms at inquests? Insurance companies and the Government have exceptional lawyers, but the bereaved families do not, and that is why the system is so disadvantageous for them.

[Victoria Prentis]

I partially agree with the hon. Lady, for whom I have great respect. I am trying to make a speech that is possibly slightly less political than the one that opened the debate, and to say that there are many reasons for inquests. As a Government lawyer I was useful in protecting the secrecy of what had happened. Often, in a war context, for example, important national security secrets had to be protected. It was not awfully much something that we were protecting from families—often families had been talked through the secret issue in the privacy of their home at an earlier date; it was just something that we did not want to have aired in open court. I am not anti-family at all, and I will come on to say why not, but I am trying to explain why, if the Government are lawyered up, it is, I hope, not often in an adversarial way. In my working life, I tried hard to make sure that it was not that way. I completely accept that it does not always look like that.

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[Ms Marie Rimmer (St Helens South and Whiston) (Lab)]

Before I start, may I say that it is a pleasure to speak under your chairmanship, Mrs Main?

I want to begin by saying how much I empathise with the aim of an inquiry, which is to find the truth of the matter when someone has died whose safety has been entrusted to the Government—truth that, when found, can provide the families of the bereaved with much-needed and sought-after closure; that simply tells them how and why it is that their loved ones are no longer here; and that provides a foundation of understanding about what mistakes may have been made and how we can learn from them to ensure that what happened may never happen again.

Yet what we find in the present system of legal aid is a great barrier to the goals of truth and understanding. The aim of the bereaved families, more than any other party in an inquest, is to ensure that what has happened to their loved ones cannot happen again, and that nobody must again feel the pain of losing somebody they love in the same, preventable way that they did. However, under the present rules, bereaved families are more often than not forced to fund their own legal representation in these inquiries.

Under the current financial eligibility rules, the threshold for receiving legal aid for an inquest is only a gross monthly income of £2,657—a gross income of just under £32,000 per year. Those earning more must pay for rent, food and all the other basic essentials of life, as well as what can be the crippling costs of legal fees in inquiries that can take months, if not years, to complete, as in the case of the Mid Staffordshire inquiry, the Morecambe Bay investigation and the Harris review. All those inquiries provided great insight into how the state needed to make changes to protect the lives of those who had been placed into its care. However, those who cannot cover the costs face the prospect of representing themselves in proceedings.

When talking about the Hillsborough disaster, Bishop James Jones described how families who had no public money provided for their legal expenses, or who were self-funded, would be forced to pool their resources. At one of the mini-inquests, one solicitor represented the interests of over 90 families. At the generic inquest, one barrister represented 43 families. One of the families was represented by the mother of the person who had died. What a harrowing experience for a woman who had lost her son to be forced to question witnesses and untangle legal proceedings just to find out what had happened to her child.

Compounding that is the fact that all those other families had no representation whatever. Their voice was stolen away from them because they did not have the financial means to represent themselves. It is simply not right, and it is simply not justice.

When we compare that to the funding that the Government or linked organisations have in these kinds of proceedings, we find that, unlike the bereaved families of those lost, the Government are able to bring the full might of the public purse to bear on these proceedings. On 3 April, the Secretary of State responded to my question about public funding for bereaved families. He stated:

“We must remember that there are ways in which we can be sympathetic to and supportive of bereaved families without ending up in an arms race of who has the most lawyers, the most expensive lawyers and so on”.

If we must use the analogy of an arms race, then at present the Government can spend money on the legal equivalent of tanks, helicopters, fleets and so on, while the families of the bereaved are left with the legal equivalent of a stick. It is all well and good for the Secretary of State to argue that we must not enter an arms race, when the Government sit in the position of power, possessing the finance to bring those legal arms to bear.

The Secretary of State also stated that he was “keen to ensure that” inquests

“continue to be essentially an inquisitorial process, rather than adversarial”.

However, I and many others in this place and beyond would argue that the process is already adversarial. While the nature of the inquest itself is not adversarial, we often find that the Government and other organisations do not fear the judgment of the coroner’s court, but that of the court of public opinion.

[Jo Stevens]

Quite often in an inquest a person will be gathering information, and that will be the only venue in which they can do so in advance of potential litigation. Does my hon. Friend agree that it is so important for families to have lawyers with them to enable them to carry out that process?

[Ms Rimmer]

Absolutely, and that is why I am here today. The Government and other organisations approach proceedings with the aim of damage limitation, instructing combative legal teams to defend state policies and practices, rather than to seek the truth that I spoke of earlier.

There are ways in which we can overcome that imbalance. First, automatic, non-means-tested legal aid for families would both help to level the playing field and prevent families from being burdened with crippling legal costs. It would also avoid forcing families to jump through confusing bureaucratic hoops during what can be one of the most traumatic periods, if not the most traumatic period, in their lives. Non-means-tested legal aid is provided in care and supervision proceedings in which children are to be removed from their parents, and in certain cases under the Mental Health Act 1983 and the Mental Capacity Act 2005, which demonstrates that there is a precedent.

Secondly, funding for families must be equivalent to that enjoyed by the state bodies, public authorities or corporate bodies represented. Ensuring like-for-like spending between the parties involved in inquests would not only further help to level the playing field for bereaved families, but would prevent the arms race that the Secretary of State alluded to in his response on 3 April. The parties mentioned would be able to spend more on lawyers only if the bereaved families received the same funding. As mentioned earlier, bereaved families do not have the means with which to outspend the Government.

I ask the Government to heed the recommendations made by the 1999 Stephen Lawrence inquiry, the 2003 independent review of coroner services, the 2004 Joint Committee on Human Rights, the 2007 Corston report, the 2015 Harris review, the 2016 report of the Chief Coroner to the Lord Chancellor, the 2017 Angiolini review, the 2017 Bach commission, the 2017 Hillsborough review, the 2017 report of the Chief Coroner to the Lord Chancellor, the 2018 Joint Committee on Human Rights and the 2018 Independent Office for Police Conduct consultation response. I ask them then to finally make the reforms necessary to give bereaved families the tools they need to achieve the fundamental goal of inquests, which is to find out the truth—the simple truth.

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[Tim Loughton (East Worthing and Shoreham) (Con)]

I congratulate the hon. Member for Barnsley East (Stephanie Peacock) on securing this debate. It concerns a very technical subject that is hugely important to a number of constituents, whether because of large tragedies involving the multiple loss of human life or because of the single tragedy of losing someone, from a baby through to someone in adulthood. I also pay tribute to my hon. Friend the Member for Banbury (Victoria Prentis) for her kind words about my private Member’s Bill, now an Act, which will enable coroners to have the power to launch inquests into stillbirths. The consultation, which has already been launched by the Ministry for Justice, will explore the whole issue of legal aid for those inquests, too. It is very important that we get the consultation right, so that measures in this sensitive area can be brought in proportionately and appropriately and help in the campaign to reduce the number of stillbirths in this country, which we all wish well. It is also important to explain to already traumatised and grieving parents exactly what happened and how improvements can be made to the system to make sure it is less likely to happen to other parents in that situation in the future.

[Jo Stevens]

In addition, would the hon. Gentleman support legal aid for people who are killed at work? It is not available for the many people who die in fatal accidents in work every year.

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[Lucy Frazer]

I hope that I have identified a number of measures that we are putting in place that may help the hon. Lady’s constituent. We are making sure that the process is easier. The Legal Aid Agency is looking at linking up with banks and Her Majesty’s Revenue and Customs, not just in relation to inquests but across the board, to automatically see whether people satisfy the means test, without them having to fill in a whole load of forms. I appreciate that, obviously, automatic non-means-tested legal aid would be much easier for everybody, but we are taking steps to make things easier within the ambit of having a means test.

In February, we announced another measure that may help the hon. Lady’s constituent, which is that we have agreed to backdate the legal help waiver. The director of legal aid casework has the discretion to backdate funding for ECF representation to the date that the ECF application was made, but he did not have the discretion to backdate funding for legal help, even when an application for the means-test assessment to be waived had been successful. We have committed to changing that by the end of the year.

The hon. Member for St Helens South and Whiston (Ms Rimmer) mentioned the threshold for legal aid, as did several other hon. Members. Our action plan sets out a broad, across-the-board review of the means-test threshold for legal aid, which will include the means test for inquests. We have committed to looking at the threshold at which people become eligible for legal aid across the board. We have also committed to launching a campaign to raise awareness about the availability of legal support, including legal aid, which will ensure that all bereaved families are aware of their rights to claim ECF.

I was disappointed by the cynical suggestion of several hon. Members, including the hon. Members for Barnsley East and for Hammersmith, that the timescale of the review that we conducted was somehow inappropriate. The hon. Member for Hammersmith identified that that review ran alongside the legal aid review, and the timing was dictated by the legal aid review, which we promised to publish by the end of the year, as he is aware.

[Jo Stevens]

The Minister has not explained why the consultation lasted for only six weeks rather than 12. Is she disappointed that only 48 out of the 89 coroner areas in England and Wales responded to the survey? They are obviously not very interested in the review either.