Police, Crime, Sentencing and Courts Bill

Debate between Lord Pannick and Lord Sandhurst

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Pannick (CB)]

My Lords, I too support the principle behind Amendment 269. We regularly see the disturbing prospect of bereaved families being unrepresented when public bodies have very competent representation. This undermines public confidence in justice, and it sometimes impedes the ability of the coroner or the public inquiry to get to the truth of matters of enormous public importance.

However, I am not persuaded that the mechanism contained in Amendment 269, in proposed new subsection (1), is the correct one. It provides that the representation for bereaved families must be

“at the same level or in proportion to the resources provided to the public authority or private entity”.

I would be content if competent representation were provided.

I draw to the attention of the Committee that there are cases in the Court of Appeal where it has been argued, under the Human Rights Act, that a defendant in a criminal case was entitled to representation under legal aid by Queen’s Counsel because the prosecution was represented by Queen’s Counsel. The Court of Appeal said no, and that what they are entitled to—and rightly so—is competent representation. So I think this is going too far.

The noble and Learned Lord, Lord Mackay of Clashfern, suggested one way forward: that the public body should make provision. Another way of dealing with it would be for the chairman of the inquiry, or the coroner, to have a statutory discretion to order that specific persons be provided with public funding, whether by legal aid or otherwise. There are a variety of mechanisms, but I entirely agree with the noble and learned Lord, Lord Falconer of Thoroton, that the principle now needs to be enacted.

[Lord Sandhurst (Con)]

My Lords, I shall speak shortly. I have always had a long interest in legal aid and its proper provision. My concern is that this amendment is aimed at the right target but goes too far. Look, for example, at the wording; as I understand it, it would apply every time there is an inquest involving someone who has died in a hospital. If that has been the result of possible negligence on the part of the hospital—I am talking about an NHS hospital here—then there is a potential claim against the hospital. If that potential claim has any reasonable merit, it is likely that solicitors experienced in medical and legal work will undertake the inquest because, in due course, if the claim is brought and damages are recovered and costs awarded, the cost of representation at the inquest will be recoverable in the personal injury action. That has been the case ever since the “Marchioness” disaster and the costs thereafter.

All I say is this: there should be representation in appropriate cases involving state institutions. We can all think of examples—not just Hillsborough; it could be a hospital or something else—where the state and a public authority are involved, and it is unfair to the family to have to scrabble around to get funds if they can. I would like to see careful consideration given by the Government to how this can be properly designed to find a balance. There is a strain on public resources; there are many other areas where legal aid is not provided, particularly in the family courts, and we know that funds are short. Equally, they should consider whether, in appropriate cases, it should be at the coroner’s discretion to direct the Legal Aid Agency to look at this. I argue that the Government should think very carefully about this and about what would be a fair balance, given the strain on public resources, to ensure that people who need and deserve it get resources provided to them.