Legal Aid for Inquests

Lucy Frazer Excerpts

Wednesday 10th April 2019 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Mrs Main. I congratulate the hon. Member for Barnsley East (Stephanie Peacock) on securing a debate on this important subject. She spoke passionately about the issue, and I am pleased to have the opportunity to respond.

Last Friday I had the opportunity to visit Westminster coroner’s court to watch an inquest. I saw first hand the professionalism of the coroner and the importance of the inquest process to the bereaved family. Before turning to the individual points that have been made in this debate, I would like to set out some facts in relation to the inquest process, the purpose of an inquest and what we have done to improve that process. I would also like to mention some of the types of cases that inquests deal with, which we have heard about throughout the debate, and to respond to the points that have been made in relation to legal aid. I would like to do that, because it is important to understand the process and how legal aid fits into it.

The starting point is, what is the purpose of an inquest? An inquest is an investigation by a coroner into a death reported to them, and it should answer four questions: what is the identity of the deceased, what is the place of death, what is the time of death, and how did the deceased person come to his or her death? An inquest is a public court hearing to determine those matters.

As my hon. Friend the Member for Banbury (Victoria Prentis) said—as we heard, she has considerable experience of these issues—an inquest is meant to be an inquisitorial process, not an adversarial one. Bereaved families have a special status in any inquest. They do not have to make legal arguments, but they can question witnesses, or ask coroners to question them on their behalf. Inquests are essentially about fact finding.

At the inquest I saw on Friday, a man had either taken his own life or died from natural causes. The family were given every opportunity to question the toxicologist and the doctor present. There was no legal representation on either side, and at the end of the inquest the father of the deceased thanked the coroner for her findings and commented that she could not have done much more.

As with all legal processes, we can make room for improvement. The hon. Member for Hammersmith (Andy Slaughter) suggested that not everyone who appears at an inquest—for example, coroners or legal representatives —always behaves as they should. We have sought to improve the experience of bereaved families who go through this process at such a tragic time, and I wish to highlight some of the changes that we have made or are making.

First, we are in the process of revising the information we give families on coronial processes, to ensure that it is tailored to them. We have re-established a stakeholder forum to engage with other Departments and external stakeholders and to consider what more can be done to ensure that the process is inquisitorial, as it should be. Our reforms allow bereaved families access to most documents seen by the court, and they should expect the coroner’s office to update them at regular intervals and explain each stage of the process. We have also introduced the role of Chief Coroner, who provides leadership, guidance and support to coroners, and we have engaged with him on training for coroners and their officers, which will be delivered in 2019-20.

As we have heard, many types of inquest come before coroners. My hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) mentioned stillbirths and the tragedy in his constituency. My hon. Friend the Member for Banbury spoke of her experience in a number of matters, and the hon. Member for Ellesmere Port and Neston (Justin Madders) mentioned some terrible stories. The hon. Member for High Peak (Ruth George) told us of the experience of someone in her constituency. At the inquest last week, a number of cases were opened at the start of the hearing. They involved men who had died—some had taken their own lives, some cases involved drugs, and some were in foreign countries.

None of those cases involved the state. Other cases do involve the state, however, and there is a question over whether the state or its agents were responsible. Those are known as article 2 inquest cases, in reference to the state duty to protect life under article 2 of the European convention on human rights. In those cases an enhanced investigation must decide not only who died, when, where and how, but the broader circumstances of their death.

As hon. Members have suggested, it is likely in such circumstances that the state will be represented. Bereaved families may require representation, and legal aid for that may be available through the exceptional case funding scheme—my hon. Friend the Member for East Worthing and Shoreham mentioned that, as did the hon. Member for Ashfield (Gloria De Piero).

Legal aid for representation through the ECF scheme may be provided where failure to provide representation would amount to, or risk, a breach of article 2, or where there is a wider public interest. In the last two years, 339 applications for publicly funded representation at an inquest were granted, and we have taken a number of measures to ensure that ECF funding is more easily granted.

As the hon. Member for Strangford (Jim Shannon) mentioned, most people who apply for legal aid generally in civil law have to satisfy a means and merits threshold. That is to ensure that public money is well spent. Those who do not merit legal aid should not get it, and those who can afford to pay themselves should do so. We have recently made it easier in two ways to obtain legal aid. First, we have made changes to ensure that there is a presumption that the article 2 threshold is satisfied in cases where there is a death in state custody. Secondly, we have relaxed the means test.

The hon. Member for Leeds North West (Alex Sobel) mentioned the stress of filling in the form at a difficult time. In June, we updated the Lord Chancellor’s guidance so that the Legal Aid Agency can disregard the means test and take into account the stress that the family are going through, which may be exacerbated by the legal aid process. Furthermore, only the individual applicant’s financial means will be tested, and not the means of family members, which will help to ease the burden of the application process.

As the hon. Members for Barnsley East and for Enfield, Southgate (Bambos Charalambous) mentioned, the process is complicated. In February, we identified that we will do a wider review of legal aid. We have committed to simplifying the exceptional case funding forms and guidance to ensure that applying for legal aid is as simple as possible. We will put more money into resourcing that to ensure that funding decisions by the Legal Aid Agency are made in as timely a manner as possible.

[Ruth George]

The Minister has described how there is some process for people to apply for legal aid, but in my constituent’s case the decision was made only three days before the inquest. She had to attend a pre-inquest trial with three barristers, which was incredibly upsetting. She also had to go through her personal finances, including her car finance, to make the application again—on top of what was happening with the inquest and the anniversary of her son’s death. Does the Minister agree that that process would be assisted if there was automatic legal aid for victims’ families?

[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.

--- Later in debate ---

[Lucy Frazer]

We wanted to publish the review at the same time as the legal aid review. In addition, we have committed to look subsequently at a key part that will affect inquests in relation to the threshold, so we are now undertaking a review of the threshold. All the comments made about inquests will be carried forward to that review, which is ongoing.

Some hon. Members mentioned families’ input into the review. Some 20 families provided evidence, and we held a roundtable event for bereaved families. The hon. Member for St Helens South and Whiston and others mentioned funding and an inequality of arms, which I will touch on. We say in our report that we are interested in looking at that area more fully. There are a variety of ways to tackle funding, all of which involve working with other Departments that may be represented in a hearing involving an article 2 case. It might involve reminding those that take part in the process on behalf of the Government of their duty of candour. It might involve asking Government Departments to look at their own instruction of lawyers and whether they need the number they instruct. It might also involve looking into further options for funding legal support at inquests where the state has state-funded representation. We will look at all those issues and will work closely with other Government Departments.

In conclusion, very important issues have been raised about the inquest process. It is important that an inquest is sensitive and meets the needs of the bereaved. Legal aid and the process in relation to state deaths are an important issue, as we have heard in the debate today, but legal aid is only one part of the jigsaw, and we must look at the whole system more widely if we are to deliver access to justice.

I thank the hon. Member for Barnsley East for securing the debate on legal aid for inquests. I thank all hon. Members who have taken part in the debate, and I thank you, Mrs Main, for chairing it.