Judicial Review and Courts Bill

Viscount Hailsham Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I would like to say something about the proposal in relation to the coroners’ court. The problem in the coroners’ court is that well-heeled litigants are allowed to participate in the coroners’ inquest when the people with real interest, namely the relatives of the deceased whose death is being inquired into, are not able to afford any protection at all. The well-heeled litigants are able to use litigation experts—counsel, senior counsel maybe—and leave the relatives of the deceased without anything at all in the way of legal assistance.

This point arose in this House in connection with the Liverpool situation some years ago. The suggestion was that these well-heeled people should not be allowed to participate in the inquest, unless they were prepared to make available to the relatives legal advice and help to exactly the same limit that the well-heeled people were proposing. That applies to those well heeled by the taxpayer, and applies to those who are well heeled in other ways. It is much more general than legal aid.

Therefore, it seems to me that the inquiry that the Government are proposing would be well added to by taking account of this possibility, which we certainly advocated here. I think I am right in saying that my noble friend Lord Hailsham was also involved on that occasion. At that time, it seemed to be a Home Office responsibility, because it was the Home Office that was responding to the report from Liverpool. It was said that we would get an answer to this very obvious way of dealing with this and making it fair in due course. “Due course” is a very flexible expression. I would think it highly likely that it should be involved in this inquiry. Just restricting it to legal aid seems to make it impossible to really get adequate representation. It is much better that the representation should be equal and level on both sides.

Of course, in some of these inquests, there may be more than one well-heeled participant. Therefore, it should be made a condition of them being allowed to participate, if it is joint and several or if it is just one, that they are prepared to make resources available to the relatives of an equal standard to the resources that they wish to use. That seems abundantly fair; it is not a charge on a public interest or the public purse, except in the case where the well-heeled people are supported by the taxpayer. The taxpayer will have to pay what they seek to put out for their lawyers. I cannot see why dividing this between themselves and the other parties is not a fair way of dealing with it. It does not in any way increase the responsibility of the public purse.

[Viscount Hailsham (Con)]

My Lords, may I make one observation about Motion C1, which I am minded to support? It will bring a clear recommendation to Parliament within a year. This seems to be a very strong recommendation for it.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I thank everybody who has spoken in this short debate. I also thank the noble and learned Lord, Lord Mackay, and the noble Viscount, Lord Hailsham, for the spirit of what they said on the legal aid point. I thank the noble and learned Lord for his helpful suggestion. I am also grateful to the Minister for the way in which he opened this debate and for his careful response. I add my warm thanks for the contribution of the noble Lord, Lord Wolfson, during his time as Minister, and for his engagement with all of us on the Bill and on many others, going back to last year and to what is now the Domestic Abuse Act.

I will not press Motion A1 to the vote. I maintain my opposition to prospective-only quashing orders. I have read and appreciated the contribution of the noble and learned Lord, Lord Brown, to the Times newspaper on this point. I understand his point of view. He puts it as eloquently and as highly as it can be put. Nevertheless, there are two arguments.

At this stage, we should recognise the importance of the Government’s withdrawal of the presumption which would effectively have fettered the discretion of the judges. I will seek leave to withdraw this Motion on the basis of the description of the discretion as given by the Minister. I do so with confidence that the Government will apply the principles applied in the Canadian courts and develop the jurisprudence in a way that secures protection for all parties or potential parties before the courts. I beg leave to withdraw Motion A1.

Motion A1 (as an amendment to Motion A) withdrawn.

Motion A agreed.

Motion B