The Coroner Service

Debate between Robert Neill and Maria Eagle

Thursday 28th October 2021 Westminster Hall

[Sir Robert Neill]

Tuesday. Now that he is in post, I hope that, once he has read the Government response, he will take the opportunity to ask his officials to review it, because there are compelling reasons, which we will set out, why the Government should look again at a number of issues.

It is good to see a former member of the Justice Committee appear for the first time as a shadow Minister in Westminster Hall. The hon. Member for Hammersmith (Andy Slaughter) certainly knows the full detail of the report because he played a substantial part in contributing to it. I hope that he will be able to agree with the contents of the report when we get to the end of the debate.

I also want to mention the presence of the hon. Member for Wallasey—

[Maria Eagle (Garston and Halewood) (Lab)]

Garston and Halewood.

--- Later in debate ---

[Sir Robert Neill]

Garston and Halewood. The hon. Lady has played such an important role in the debate and has raised the issue—I know she will do so again today —of inquests into major disasters, such as Hillsborough, with great passion and expertise. I am grateful to her for her input to the report and to today’s important debate.

The debate is on an issue that is of concern to a lot of people. I am grateful to the House authorities for making an exception by allowing representatives from INQUEST and Mr Andrew McCulloch, who gave our inquiry compelling evidence about his family’s experience, to sit in the Public Gallery.

Let us start by taking an overview. The coronial system and jurisdiction date back to medieval times; it is one of our oldest jurisdictions. It grew up on the basis of a very localised approach. That means that historically it was dealt with and supported by local authorities—initially parishes, counties and then eventually it morphed into being supported by essentially top-tier authorities in the modern local government structure. That makes it completely different from any other type of court jurisdiction because we moved to a unified magistrates court service some years back. That originally came from not dissimilar localised routes, but it was recognised in the case of magistrates that logic compelled that we move to a single national system. I have to say that nothing has persuaded me that the same logic does not apply to the coronial system.

The system means that some of the procedures and levels of funding are much more variable across the country than those in any other form of court system. There are differences between it and the criminal courts in particular—the coronial system is inquisitorial, whereas the criminal court system is adversarial—even though there is, sadly, an overlap in the subject matter they both consider. The complexity and nature of the issues that now frequently come to be considered by coroners, in relation to both the evidence presented in individual inquest cases and the growth in inquests into multiple deaths, mean that the system—which started in the time of the Plantagenets and evolved through the Tudors and Hanoverians—does not work in the 21st century, based on our judgment of the evidence. That is why, on the back of very strong evidence, the Committee recommended a major reform.

This is not the first time that there have been calls for a national coroner service. Previous reports, which are well documented in our report, have argued for this in the past, but the Government have been consistently unwilling to agree to it. I am sorry to say that I cannot see any compelling reason for their stance. The argument seems to be cost, but that same argument could have been made about magistrates courts. It rightly was not. We have to balance cost with the importance of the work that coroner courts do for the public and individual families.

It is right that when tragic deaths occur, there is a proper and transparent hearing into what has happened. Many of the cases dealt with by coroner courts will be straightforward and uncontroversial. Nobody is seeking to change that, but increasingly there are cases that are not only much more complicated in terms of the causes of death, but of really high public importance. Hillsborough is the most obvious and well-documented example, but there are many others. We have seen this in the growth in issuances of prevention of future deaths letters, which is a procedure the coroner is in power to use. These are being written more often because, sadly, more instances of failures, often corporate, come to light at inquests. It is important for public policy that those issues be fully ventilated.

Those arguments lead us to the conclusion that we need to take a much more radical look at the issue. The last overhaul of the system was with the Coroners and Justice Act 2009. There was a review of the operation of that Act, as had been promised in 2015, but I regret to say that it was never published. It sits somewhere in the archives of the Ministry of Justice. Perhaps if the Minister, as I occasionally used to do when I was in post, went in on a Friday when the officials might expect him to be in his constituency and had a poke around, he might find it somewhere. I urge him to get somebody to go and have a look at it.

The simple question is: why was the review never published? What on earth was the reason, even back in 2015? We ask why it has not been published and are told that it is now out of date. If one sits on anything for long enough, it becomes out of date. We might ask whether this is a blatant cover-up, but if it is not a cover-up why not publish the review? It would cost one official’s precious little time to put it on a website—we do not need anything more than that. No doubt, there will be a suitable narrative around the review saying, “This goes back a long way and things may have changed.” As a matter of good public policy and transparency, why on earth has the Ministry of Justice not published it?

The Ministry may even say at the end of the day that it disagrees with the conclusions or does not think they are viable. It may say that the review is not appropriate any more. Put it up there and say that. To me it is the obvious thing to do. It might be that there are lessons to be learned from the review. The actual structure of the service has not changed since the 2009 Act and there have not been any significant changes, so I guarantee that not everything is purely of historic interest. I ask the Minister to respond to this issue, which I mention first simply because of the history. It is against the background of a number of reports recommending a move to a national system that that became the central part of our recommendations.

The reasons can be encapsulated as follows: coroners’ services are funded by local authorities, whose financial circumstances and priorities vary—as you well know, Sir George—because the pressures on their resources vary. As such, the service that is given to bereaved families across the country varies, as does the service provided to the public. We do not think that that is justifiable, any more than it would have been justifiable in the case of magistrates courts some time ago.

The overwhelming majority of those who submitted evidence to the inquiry called for a unified coroner service to ensure consistent standards, and that is what we recommended. The Government rejected that, saying that they did not think it would be the best solution. They said, as far as I can see, that there is merit in flexibility, but that does not at all reflect the evidence we received. I have had a few clients over the years who were faced with pretty overwhelming evidence, and I usually told them that the answer was to put their hands up. For some reason, the Government have not done that, but the evidence is just as strong—it was really quite marked how compellingly the weight of evidence was tilted in one particular direction—so I hope the Minister will take that recommendation away and have another look at it.

In particular, it was suggested that there were cost issues around the proposal, and I accept that. However, this is part of the justice system, and as some of us have said on other occasions, an effective justice system is so fundamental to the wellbeing of civil society in this country that one should not be afraid to make a proportionate amount of money available to make sure it is delivered properly. Can the Minister at least tell us whether he will share the cost analysis that backs up the Government’s conclusion in relation to this recommendation? Will it be made public? It seems to me that it ought to be. What is the basis of the Government’s assertion that it is too costly, given the benefits that the evidence clearly suggests would be achieved?

A second recommendation went hand in hand with the first. If one thought that a national service is too ambitious—which I do not—one could consider having a coroner service inspectorate: a single national inspectorate. We have inspectorates for the Crown Prosecution Service and a raft of other Ministry of Justice agencies, and it does not seem unreasonable to do that in this case. I am glad to say that in recent years there has been an important development: the creation of the post of Chief Coroner. A series of very distinguished judges have held that post, and they have undoubtedly done a lot to improve the system within the limits of their current powers.

Being head of a national service could, of course, give the Chief Coroner the proper powers of direction to ensure consistency across the piece. The CPS, the prisons and probation inspectorates, and the inspectorates assessor alongside them, are not expensive in the overall scheme of things. We all know that the budgets for the inspectorates that the Ministry of Justice run are very small compared with the day-to-day delivery costs. I would argue that that should be introduced alongside a national service, but even without one it would be a sensible, reasonable thing to do and a step in the right direction, and something that the Government could consider without prejudice to their principal position.

Has any work been conducted to assess the affordability of establishing a coroner service inspectorate? Without such an inspectorate, how are the Government going to ensure that the coroner service is sufficiently transparent and accountable? Given that the Government did not dispute the evidence of inconsistencies of practice, how will they ensure consistency of practice, or much more consistent practice than we have at the moment? That is exactly the sort of thing one would expect an inspectorate to be there for, so why not?

Another very important issue was the question of access to legal aid for bereaved persons, which is an immensely sensitive issue, as Members will understand. We heard really moving evidence from a number of families who had lost loved ones and, inevitably, found the whole process to be extremely distressing. It seems to me that a number of issues arise from that.

At the moment, there is no legal aid for bereaved families at inquest, other than exceptional case funding. To be clear, a large number—perhaps the majority—of cases that come before the coroner’s court will not require legal representation. They are very straightforward and seek to ascertain the cause of death—no more, no less. However, a significant number of cases involve more complex issues. One would, therefore, expect that it is right for families to have legal representation in those cases. However, they may have lost the principal breadwinner of the family or be going through many other pressures—is it right to expect them to go through the very complicated procedure of exceptional case funding? It is not like the ordinary legal aid application form; it is a much harder, more bureaucratic set of measures. It does not seem fair to put people through that, after such tragedies.

There is also an important question of principle. Frequently, one of the interested parties will be a public body. It may well be a health authority, a police authority or chief constable, or a local authority. It might be a Government agency of one kind or another. That party will invariably have legal representation. Sheer equality of arms—a basic principle of the rule of law—would surely dictate that in circumstances where a public body is legally represented, the family should also have legal representation, even within an inquisitorial, as opposed to adversarial, system. The family have the right, as they should, to expect that the evidence given by the public body and its representatives is tested, particularly as there may be a challenge to it, and that there is a full explanation as to whether the actions of the public body, whatever it may be, contributed to the death of the deceased.

[Maria Eagle]

I agree very much with what the hon. Gentleman has said thus far. Does he agree that the adversarial nature of some coroner’s inquests often results from a public authority trying to defend its reputation and defend against civil or criminal liability that it may fall into as a consequence of the outcome of the inquest? Yet the families, who are also interested parties, simply want to know what happened to their loved one. Things become adversarial because of that difference in the interests of the interested parties.

[Sir Robert Neill]

That is a perfectly fair point. We have all had experience and seen a great deal of evidence of that. The more potentially sensitive the issue, the more that is likely. Let us be blunt: in some cases, there will be public bodies who desire to avoid the potentially significant claims for damages that could arise if it is found that their negligence has, to some greater or lesser extent, contributed to the death of the deceased. They therefore have a direct stake in trying to minimise their fault. There is inevitable pressure on them to do that.

In that event, it is right and proper, even within an inquisitorial system, that the coroner should not have to bear the whole burden of trying to rectify that. Instead, we should enable the other interested parties—the families—to have legal representation as well. The truth is, in these types of inquest, it is not the purely old-fashioned inquisitorial system any more. The reality is that an adversarial and defensive nature has inevitably been brought into the legal proceedings by the legal representatives —acting on the instructions, of course, of the public bodies concerned.

That is why we think it is important that there should be equality of arms. We recommended that there should be automatic entitlement to non-means-tested legal aid for legal representation for people in relation to mass inquests, where there are multiple deaths, and that non-means-tested legal aid or other public funding for legal representation is made available for people when public authorities are legally represented. The level of representation may vary according to the complexity of the case. However, the principle should be there.

I accept that there has been positive movement from the Government in one respect. INQUEST, in its very helpful briefing for today’s debate, recognised that the Government did announce that they would take forward legislation to remove the means test for applications to exceptional case funding for legal representation at inquests. They also announced an intention to provide non-means-tested legal help. That is also crucial. However, the suggestion that non-means-tested legal help will be contingent on cases where ECF has been granted does not seem to be logical, given the range of cases that are potentially engaged here, and the way these processes operate.

As I understand it, there are plans to remove the means test for legal help in these circumstances—I am told there will be some public consultation on this—but I hope the Minister can update us on the progress of plans to remove this and on the time frame for bringing this to a conclusion. That would remove a great deal of pressure for many of the families who contacted us during our inquiry. Even if this cannot happen for them, the fact that it would be possible for families in the same position in the future would be a great boon, would improve public confidence, and would be a humane gesture by the Government. I hope therefore, in that spirit, that the Minister will give us more detail on how the Government intend to pursue that welcome move. Having been critical in some areas, I give them credit where credit is due, but I would like to see flesh on the bones in how that will be achieved.

It has also been suggested that there should be some delay until the Government have responded to Bishop Jones’ report relating to the Hillsborough families’ experiences. That was a very important report, and I can quite see that the Government would want to take it on board, but it was published in 2017, and we still do not have the Government’s response. I know the hon. Member for Garston and Halewood (Maria Eagle) will want to talk about that. I know that it sometimes takes a long time to get things done, but four years seems to be an awfully long time, particularly given the sensitivities and how that might weigh on the families of those concerned and on public confidence in the system. Can we have an indication as to when the Government intend to respond to the Bishop’s report, and a timeline for how they intend to deal with the particular issue of legal aid, which they have already moved towards?

What will be done for cases that fall outside that ECF funding to ensure families have legal help from the outset? The importance of that is not just what happens on the day, at the inquest. It is also in dealing with, for example, post-death investigation and inquest preparation. I hope the Minister will have more detail on that.

I might add, in passing, that another point in favour of a national coroners system is that it would enable the Chief Coroner to have far greater power to ensure consistency in pre-inquest hearings and that coroners, on a national basis, have a greater suite of case-management measures than they currently have—as found in the Crown court or elsewhere—to ensure that preliminary hearings are dealt with expeditiously, and that the issues are narrowed down so that evidence, when it does come from bereaved families and so on, is only that which is absolutely necessary. Sometimes, irrelevant material is attempted to be introduced, causing great pain to families without actually leading to the key conclusions in the case. That could be dealt with, and its admissibility determined, at a much earlier stage in the proceedings.

Those are all arguments for the national service, as well as for strengthening the role of the Chief Coroner—in management and so on. However, to do that properly, it is right and fair that the interested parties are legally represented on an equal footing at those preliminary hearings.

Those are some of the key areas that we addressed around the national system and the position of families in relation to inquests and representation. There are other things that we recommend should be done to help with families, particularly the experiences that all families have, which may not require legal representation but do just need a hand through the system. Even if it is not a contentious death—if I can put it that way—it is none the less a traumatic experience. The thought of having to go to court, having to identify the deceased, or so on, is a difficult circumstance for people. We thought that more work needed to be done to ensure that bereaved people know of the existence of the Ministry’s guide to coroner services; it is good that it is there, but the evidence shows that, on a consistent basis, there is nothing like the awareness of it that there should be.

We recommended that there should be work done to update the guide and make sure that it is freely available online, and where people cannot access it online, it is available in hard copy. I am glad that the Government accepted this recommendation—we appreciate that. However, we are concerned about what monitoring will be put in place, absent any form of inspectorate or national control, to ensure that this is delivered in practice and that families do receive the access that Government and the Committee want them to have. If it is locally based, what levers will the Government use to make sure it happens in every coroner’s area?

At the moment there is no central funding that goes to the coroner service; it is funded through a local government process with nothing from the Department. We think that the Government should look at a small amount of funding being made available for support services for bereaved people at inquests. That could be done as a separate stream, in the same way as we have streams for victim support in other areas of criminal justice. A small pot here could go a long way towards ensuring consistency. If it was ringfenced, and came directly from the Ministry, then it would ensure that support services for victims were not subject to the same local variations and vagaries as other elements of the system. It is a modest proposal, and I hope that the Minister might be able to tell us what the Government will do on it. Could they perhaps look at the affordability and deliverability of it? Has any work been done on it in the same way that work has been done to ensure that families get access to the guide and are signposted to other forms of support?

An unusual feature of the coroner system is that there is no right of appeal, as such. There is the right to seek a judicial review of the coroner’s decision, but the test for that is a very high one. One recommendation in our report is that there should be a straightforward appeals mechanism to the High Court, without having to go through the judicial review test—is it Wednesbury reasonable and so on. The Government said, fairly, that they would consider whether an additional appeals mechanism was appropriate, and I welcome that, but can the Minister help us as to what progress has been made in consideration of it? If there has been progress, and there is time, could we use the Judicial Review and Courts Bill to bring that forward? If not, can we have a timeframe as to when the Minister thinks the Department will be able to come up with a conclusion on an appeals mechanism and identify a vehicle that can put it in place?

As a general concern, it should be said that although there are some useful changes in the Judicial Review and Courts Bill that we debated on Tuesday, which are generally welcomed, a lot more that could have been done. I think there is a general disappointment that the Bill was not used as a vehicle to take forward a number of other issues that were raised in this report.

I wish to raise two further issues. One area of specific concern is the renumeration of pathologists—that is a real problem. The evidence is compelling; there is a real difficulty in finding sufficient pathologists to service the system. We heard that there are 580 consultant pathology vacancies in the United Kingdom, and we recommended that the Ministry should review and immediately increase coroner’s fees for pathologists. The fees have not gone up for over 20 years; it is difficult to think of any public service that could continue to attract people if the fees are not updated for 20 years. For some reason the Government have rejected that recommendation, and yet, we are not talking about vast numbers of people. We are not talking about the number of legal aid solicitors or barristers in the country; we are talking about a very small number of highly skilled and rare clinicians. To make it worthwhile for them to undertake this work, surely the Government need to look again at this.

[Maria Eagle]

Does the hon. Gentleman agree that it is hard to think of anything that could have a more catastrophic impact on the capacity of the coroners courts to do their work than a shortage of pathologists?

[Sir Robert Neill]

It is pretty fundamental, is it not? At the end of the day, if the purpose of the inquest to determine the cause of death, the most important bit of the evidence in that respect will often be the pathologist’s report, so it seems strange, to put it mildly, that what is a very modest proposal in the overall scheme of things has not been pursued.

The Government said they were not convinced that the level of fees was the reason for the shortage of pathologists. I ask the Minister politely, in that case, what they think it is? If it is not the level of fees, what is the problem? The Royal College of Pathologists certainly thinks it is an issue; it says 62% of its members giving up post-mortem work cite poor remuneration as a major cause of their decision. If it is not the sole consideration, it sounds to me as if it is one of the major ones, and one that could be easily and swiftly resolved.

There are other issues that we suggested, such as working with the Department of Health and Social Care to make sure that pathologists’ work is planned within their NHS contracts. The problem is that the work they do for coroners is outside the NHS contract. If it is outside their contract and they are being paid a wholly out-of-date fee for it, no wonder it is difficult to get people to do it.

Is there a proper workforce plan for recruiting adequate numbers of pathologists? As the hon. Lady says, we almost cannot get past first base in many inquests without having the pathology services there to start with. I hope the Government will be able to look at that again. What do the Government intend to do to improve recruitment and retention of pathologists? If it is not increasing the fee levels, what else will they do? Things are clearly not sustainable as they are—having 580 vacancies is simply not viable.

The other point I wanted to touch on briefly is something I mentioned early on: the procedure for addressing fatal risks identified by coroners and juries, the prevention of further deaths reports. As I said, they have become increasingly important, and we have all seen their value in many highly publicised cases, but there is currently no consistent mechanism to ensure follow-up. Again, that is due to the highly localised and diffuse system that we have.

What progress have the Government made? They said that they recognised that more could be done and they would consider options, and I welcome that, but what progress have they made in considering how preventing future deaths reports could, first, be made more accessible and, secondly, followed up routinely? The whole point is that they ought to be out there in the public domain to change working practices, to change behaviour and to stop such things happening again.

However, as we found out with prison inspectorates and other things, all too often recommendations are left sitting there and are not followed up. The difference that was made when Her Majesty’s inspectorate of prisons had the ability, and some funding, to follow through on its recommendations was quite marked. What will the Government do to learn from what happened in the prisons system and put in place a mechanism for consistent follow-up and action? Could the Chief Coroner be given greater powers here? It would sit very logically within a coroners inspectorate system, which is perhaps another strong argument for going down that route, but in any event there ought to be a system of consistent means of follow-up and proper transparency and scrutiny.

The Government accepted our recommendation on bringing stillbirths within the coroner’s remit. That will be a considerable benefit to many bereaved families. A joint response from the Ministry of Justice and the Department of Health and Social Care was promised; can the Minister tell us when that response will be forthcoming?

I have not touched on everything, but I hope that gives an overview of what was a very substantial report, and the substantial issues it raised, by no means all of which have yet been satisfactorily answered. I know the Minister brings a fresh mind to this matter, and he is a can-do politician, so I hope he will use this opportunity to reassure us that the Government have not just closed the book on this and said, “No, thank you, that’s the end of it,” but that we can continue to have a constructive engagement with the Government about improving the system—because clearly, it does need improving.