Legal Aid: Birmingham Pub Bombings

Joanna Cherry Excerpts

Tuesday 27th March 2018 Westminster Hall

[Joanna Cherry (Edinburgh South West) (SNP)]

It really is a pleasure to serve under your chairpersonship, Mr Hollobone. I congratulate the hon. Member for Birmingham, Northfield (Richard Burden) on securing this important debate, and the other Members of Parliament who have fought for this right and just cause. I pay tribute to the families’ courage and bravery.

As the hon. Member for Coventry South (Mr Cunningham) said, those who were alive at the time of this incident will never forget it. I was just a little girl, but I do remember it. I looked again at photographs of the victims today, and it is fair to say that their faces are familiar to those of us who are strangers to them: they have haunted us for many years.

It puzzles me that it has taken so long to get to the bottom of who carried out that atrocity. One almost wonders whether it suits some in authority for us not to get to the bottom of it. We are close to getting to the bottom of it. It is many years since innocent men were imprisoned and cleared in relation to the atrocity. There should have been inquests. The inquests that were originally opened in 1974 should have been reopened when the Birmingham six were cleared, but they were not. They were reopened in 2016 because of the families’ campaign.

The coroner’s decision—he is entitled to make it, but it is controversial—should be challenged because the decision to exclude the perpetrators from the scope of the inquest means that it will avoid the crucial issues of who carried out the bombing, who organised it, who ordered it, who made the bombs, who planted them and who their associates were. The families of the victims have the right to know the answers to those questions. As others said eloquently, this is about access to justice and equality of arms.

As others said fairly, the coroner himself said that the families should get those funds so the fight can be equal. Other parties will be publicly funded, so why should the families not be? I am a Scots lawyer, so I do not really understand how the Legal Aid Agency works down here, but it puzzles me greatly that people are seriously expected to give up the homes in which they live to fund this litigation.

I am a member of the Joint Committee on Human Rights, and we are currently carrying out an inquiry into the enforcement of human rights and access to justice, which is a very important issue in our society—it is a fundamental right. Many of the witnesses who have given evidence to our inquiry have said that an independent review is needed of legal aid in England. The LASPO review is under way, but it is not independent. The witnesses who have given evidence to our Committee have, in the main, said that there should be an independent review separate from the Government so the matter can be looked at independently.

North of the border, there has been an independent review into legal aid, separate from the Scottish Government, who run legal aid in Scotland, and it has made certain recommendations. It also found that although the Scottish Legal Aid Board spends less per head than is spent in England per head, there is much wider scope to and eligibility for legal aid in Scotland—indeed, 70% of the population of Scotland are eligible for legal aid.

It is therefore possible to run an economic and effective legal aid system. A legal aid system that denies access to funding for people to get to the bottom of the truth about who killed their loved ones cannot be a just system. Will the Minister consider holding an independent review into the Legal Aid Agency and into the criteria and eligibility for legal aid south of the border? In support of others’ requests, will she tell us clearly whether some special arrangement could be made to fund the families pending the outcome of any independent review into legal aid? If the answer to both those questions is no, will the Minister tell us how she thinks it is possible for there to be true access to justice when there is such inequality of arms?

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[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

It is a pleasure to serve under your chairmanship, Mr Hollobone.

I am extremely grateful to have the opportunity to respond on such an important issue in such an important debate, and I congratulate the hon. Member for Birmingham, Northfield (Richard Burden) on securing it. He has been very active in supporting his constituents and in making representations to the Legal Aid Agency, as the hon. Member for Birmingham, Yardley (Jess Phillips) has been in raising the profile more broadly. Like them, I welcome the families to Westminster today.

I understand why there is such strength of feeling on the subject from hon. Members on all sides. I have the deepest sympathies with the families and friends of those who were injured or lost their lives in the terrible atrocities that took place in Birmingham in 1974. I cannot imagine what they have been through. I understand the inquest plays a crucial part in the investigations that continue, and I appreciate that it plays an important role in enabling families to understand and make sense of what happened to their loved ones.

Much of the debate has focused on legal aid. The hon. Member for Birmingham, Northfield asked me to explain how legal aid differs in the various types of cases for which it can be granted in relation to an inquest. It is therefore important to identify the types of assistance that can be granted and have been sought in this case.

The Ministry of Justice acknowledges that, in certain cases, legal aid in the lead-up to an inquest may be required, and has ensured that early legal advice for inquests is available under legal aid for those who are eligible. I understand that such legal aid was sought and granted in this case. Next is the issue of legal aid for representation at the hearing itself. An inquest should be an inquisitorial process that focuses on establishing the facts of death. It should not really be an adversarial hearing, and should be conducted in a very different way from a court proceeding. Participants do not always need to present legal arguments and so, in most inquest hearings, the bereaved family do not need representation to participate in the process. Most inquest hearings are conducted without the need for publicly funded representation.

Having said that, publicly funded representation may be needed in certain circumstances and is then sought. Legal aid is available for legal representation at inquests under the exceptional case funding scheme. Legal aid is awarded through that scheme on a case-by-case basis. In deciding whether funded representation may be necessary, the Legal Aid Agency considers all the relevant individual facts and circumstances of the case, which usually include the particular circumstances of the family. Legal aid for representation at inquests is subject to means and merits tests. In such circumstances, means can be waived.

As the hon. Member for Birmingham, Northfield highlighted, the families have previously received publicly funded legal representation for the inquests on this matter.

[Joanna Cherry]

Like me, the Minister practised in the courts before she became an MP. Does she agree that, where the families of the bereaved are not represented at inquests, stones are often left unturned that would have been turned had the families had a lawyer?

[Lucy Frazer]

The hon. and learned Lady makes an important point, as always. The position is that it is not always necessary. If it is necessary, families are able to apply for it, but in his report on Hillsborough, the Bishop of Liverpool identified that, according to a 2003 fundamental review of death certification and investigation cases, no representation was needed in 79% of cases, because the families could represent themselves.

In many inquests, legal aid is not needed because the families do not need to advance legal arguments, because it is not an adversarial process, but I recognise that in some cases, it becomes a very adversarial process—that is not really appropriate, but it does become that—and legal aid can be and is sought. In fact, exceptional case funding has been granted in half the cases where people have applied for it.