 House of Commons |
Session 2008 - 09 Publications on the internet General Committee Debates Coroners and Justice Bill |
The Committee consisted of the following Members:Alan Sandall, Committee
Clerk † attended the
Committee Public Bill CommitteeTuesday 10 February 2009(Afternoon)[Mr. Roger Gale in the Chair]Coroners and Justice BillThe
Chairman: I am sure that Mr. Cook has
already made his judgment on this matter, but as far as I am concerned,
if hon. Members wish to remove their jackets for their comfort, they
may do so while I am in the Chair. I cannot speak for anybody
else.
Clause 6Duty
to hold
inquest Amendment
moved (this day): 103, in clause 6, page 4, line 14, at
end insert— ‘(2) Subject to
subsection (1), the senior coroner responsible for the inquest must
notify any interested person as soon as practicable that they are
entitled to be assisted at all times by a legal
representative. (2B) Any legal
representation shall be fully funded by the Legal Services
Commission.’.—(Mr.
Boswell.) 4
pm
Amendment 98,
in
clause 7, page 4, line 37, at
end add— ‘(5) In all cases
where a jury is required for the purposes of an inquest, any interested
person will be entitled to legal representation at the inquest, funded
by the Legal Services
Commission.’. Amendment
102, in
schedule 4, page 129, line 28, at
end insert— ‘(1A) Where the
senior coroner considers that a report under this paragraph is likely
to result from the inquest, the family of the deceased shall be
entitled to legal representation funded by the Legal Services
Commission.’. Amendment
99, in
clause 30, page 16, line 21, at
end insert— ‘(k) a decision
not to allow legal representation funded by the Legal Services
Commission to assist anyone falling within section
36(2)(a).’. Amendment
101, in
clause 36, page 20, line 18, at
end insert— ‘(aa) a legal
professional, if one has been appointed for the purposes of assisting
the
family;’. New
clause 11—Community Legal
Service— ‘(1) The Access
to Justice Act 1999 (c. 22) is amended as
follows. (2) In Schedule 2,
paragraph 2(1), after sub-sub-paragraph (e)
insert— “(ea) any
coroner’s
court”.’. New
clause 12—Legal representation of bereaved
families— ‘Where—
(a) the inquest is to be held with a jury;
or (b) the deceased died whilst
in custody or otherwise detained by the state;
or (c) the deceased died at a
centre for provision of medical treatment, and the coroner has a duty
to investigate the death under section 7(2);
or (d) any other parties
participating in the inquest are assisted by a legal
professional, legal
representation for bereaved families shall be funded by the Legal
Services
Commission.’. New
clause 13—Legal representation of bereaved families (No.
2)— ‘Means testing shall
be waived for legal representation of bereaved families
if— (a) the inquest is
to be held with a jury; or (b)
the deceased died whilst in custody or otherwise detained by the state;
or (c) the deceased died at a
centre of provision for medical treatment;
or (d) the deceased died whilst
serving in the armed forces;
and (e) any other parties
participating in the inquest are assisted by a legal
professional.’. Mr.
Tim Boswell (Daventry) (Con): I have merely introduced
formally the amendments in this group standing in my name and that of
my hon. Friend the Member for North Wiltshire. The Committee is owed
both an explanation from me and an apology from him for his absence
this afternoon. He is visiting forces in Afghanistan, which seems an
entirely acceptable excuse—and possibly the only acceptable
one—for his absence. I regret his absence. Although it is right
that he and my hon. Friends should take an interest in the difficulties
and realities that our services face in the region, he has a degree of
expertise in this area in relation to military inquests. RAF Lyneham is
in his constituency, so he has been closely involved with the Wiltshire
coroner, as my right hon. Friend the Member for Witney (Mr.
Cameron) has with the Oxfordshire coroner because of RAF Brize Norton.
That is an accident of geography and service organisation, which
probably had never been anticipated as the coronial system grew up, but
it is a sad reality now.
Perhaps, by
way of striking a consensual note at the beginning, I can say to the
Minister, repeating what I said this morning, that I appreciate her
efforts to report to the House on the development of the new defence
inquest arrangements. It is a great improvement and has helped both the
process and the inquiries. The purpose of the amendments is to make a
counterpart disposition in relation to the families further to assist
the process.
Let me now
touch on the particular amendments at stake. I am sure that the acute
textual critique of the Minister—and possibly of the hon. Member
for Cambridge—will note some very slight differences between
them, and potential contingent arrangements for fall-back positions if
she found to my great surprise that she was unable to accept the full
Monty at stage one. While the amendments are not absolutely perfect
either in drafting or in inter-operation, they amount to a substantial
package that would greatly assist families and also the inquiries,
which we are busy on this
afternoon. The
hon. Member for Stafford was particularly helpful when he responded to
my intervention this morning. His new clause 11 is part of this group
but it is not in my
name. I have no particular difficulty with it—at least, not
before he presents the case. We look forward to his comments at a later
stage.
Let me go
through my shopping list. Amendment 103, which is the lead
amendment but not the substantive one, states that the coroner should
make available information to the families. Amendment 98 relates to the
provision of legal aid to families where a jury is empanelled.
Amendment 102 makes the same provision in relation to cases in which
the coroner wishes to make a report along the lines we were discussing
this morning. Amendment 99 deals with cases in which there is to
be—or may be—an appeal against the coronial judgment.
Amendment 101 defines legal advisers to families as being interested
persons for the purpose of the clause.
We then come
to new clauses 12 and 13 and the hon. Member for Stafford’s new
clause 11. My new clauses would make a general provision for the
availability of legal aid to families in these types of inquest. As a
modification variant on that—described as No. 2—new
clause 13 suggests the waiving of means tests in this regard. In
proposing the amendments, I am grateful for the comments of the
Association of Personal Injury Lawyers. When listening to
representations from particular interests, one should apply a health
warning oneself. However, I have considered the matter carefully, in
relation to my feelings of justice, and I am convinced that the
approach is the right one.
Although I
completely lack the expertise of my hon. Friend the Member for North
Wiltshire on military inquests—the point on which many of us
focus—I take a specific interest in the matter. Indeed, we once
shared that interest when we were members—I remain a
member—of the Parliamentary Assembly of the Council of Europe. I
found our work extremely interesting; of course, it ends up with the
European convention on human rights being served up with the rations.
The convention is a very important part of our work and is taken
seriously by all 47 member states. Britain is one of the founder
members, and as such our response and example are cardinally important.
The convention provides a very valuable safeguard and codification of
decency in our public affairs.
Over the
weekend, I reread the text of the convention and as ever was struck by
two things: first, it is clear, straightforward and demanding, in
particular, articles 2 and 3, on torture and ill-treatment; secondly,
all the necessary qualifications that Governments must make to
discharge their business are rehearsed there. The latter point will be
the subject of amendments in later groups. It is not as though the
nature of our responsibilities have not been considered before. As I
said, the convention is a welcome codification of decent
practice. Let
us consider what we should be doing for bereaved families during an
inquest. Broadly speaking, the scope of our discussions includes
persons who die in the care or custody of the state, or for whose death
the state or public authorities might be seen to be responsible. In two
respects, I shall come back to that point. The foci of this discussion
are military inquests, with which we are now sadly familiar, and the
perhaps less numerous but sometimes more politically contentious issue
of deaths in custody or resulting from state-administered
violence. The
convention, which does not oblige the holding of an inquest, imposes on
contracting states an obligation to make and publish inquiries. I
notice that the Minister
is nodding; it is not an issue of contention between us. In relation to
military inquests and deaths in state care or resulting from the
activities of the state or public agents, we have made much progress on
what might be termed the official side. I have referred already to the
defence inquest arrangements, which are a great improvement. However,
we have not made quite the same progress in relation to the bereaved
families. There are two areas of concern regarding inquests: first,
that they should consider the facts and decide whether any message for
future decision making comes out of them; secondly, that they should
provide a measure of closure for the families involved. That has begun
to happen, but it has not quite happened.
We will deal
first with the military inquests. I have heard the argument—and
it would not necessarily apply only to this—that all that is
needed is a single counsel to an inquiry. It is an inquisitorial
system, not an accusatorial one, and a legally expert person could be
appointed to prompt the coroner to call witnesses and cross-examine
them and assist him in developing a conclusion in the matter. That is
not an approach that would attract me, and I hope it would not attract
the lawyers who are present here. I do not like the idea of
single-capacity activities unless necessary, especially where separate
interests are involved. We have to admit that there are interests; one
of the effects of an inquest is likely to be that at some stage, it may
lead to private proceedings, litigation, or, in certain cases, to
criminal proceedings. These are not determined by the inquest or by the
coroner’s verdict but are consequent on it, or rely on facts
which may have come to light as a result of the inquiries. In cases of
state killing particularly, which are perhaps the most sensitive of
these, the state will usually expect to provide its own counsel. If the
state is doing that, it is extremely invidious to the families involved
if they are not themselves represented.
That leads to
the specific issue of legal aid. The advantage of being a lay person
without direct involvement is that when one reflects on this issue, one
realises that it is slightly odd to talk about legal aid in relation to
an inquest—the subject of the inquest is dead. Unless one is
going to means-test the estate of the person involved, one must find
someone else who may be a relative but who may be a person at some
distance. That person’s financial circumstances, or their degree
of interest in the outcome of the will or probate, might be quite
small. On the other hand, there might be a major interest, which might
be inhibited by the fact that a particular person was there but
declined to put their treasure into the pot in order to fund the
position.
I draw a
contrast with what happens in public inquiries. I have had much to do
with only one case, and my point is very tangential because—I am
relieved to say—I was dismissed at an early stage without any
censure. That was in the BSE inquiry under Lord Phillips, which took
place in relation to the affairs of the Department of which I was a
Minister in the mid-1990s. I came out of that with clean hands, so I
was quite relieved. Some Ministers might have been at risk of being
censured by it—although I think that they, too, came out of it
relatively successfully—certainly, some senior officials were.
It was immediately understood that the Government would pay the legal
bills because they had acted in discharge of their duties as Ministers
or senior officials.
That is right. It is a principle that seems to read across to what is
going on in an inquest where a death has taken place.
There is
another point about military inquests. As the Minister said this
morning, there are widely varying practices between countries regarding
whether or not they have coronial inquests as we recognise them. Within
the Anglo-Saxon tradition, say, inquests are relatively prevalent. My
hon. Friend the Member for North Wiltshire reminded me recently of the
Hercules crash in which, I think, 10 service personnel were
killed. 4.15
pm One
of those killed was an Australian national. There was a rather
disturbing and distasteful situation because the Australian Government
immediately stood behind their deceased service personnel and offered
legal aid to the family, but the British Government were not prepared
to do that on the same basis—although some people may have been
able to get means-tested legal aid with some difficulty. So there are
anomalies to be concerned about.
There are two
other points that we should discuss and then I want to come back to the
issues of principle before I close, because they are important. The
first point is whether the assignment of an advocate, free of charge,
to the bereaved family and their associates would make the process more
adversarial or even prolong it, which might not be in anyone’s
interests and might be distressing. For example, I am sensitive to the
point that the hon. Member for Bridgend made this morning. I do not
want lawyers to make a meal of things financially, nor do I want to
create a very difficult position for the people who are involved.
Nevertheless, it seems both normal and proper, particularly in
inquisitorial proceedings, to have the various interests represented
and the various perspectives of those interests and their advocates
brought to the attention of the court and the coroner, so that they may
reach their verdict. I see no sign that that process would have to be
spun out inordinately, especially if the coroner was doing their job
properly. I hope that whatever evidence was adduced would be useful to
the
inquiry. The
second point, of course, relates to cost. I am quite sure that the
Minister will have considered the matters of cost and, indeed, her
associates in other Departments may have some difficulty with them. In
the end, one has to approach this with a consideration of what is fair
and right. We do not, as it were, attenuate justice for people; we do
not abolish the jury system to save money, for example. If it is
necessary to spend money in this area, it is proper to do so.
It is also
worth considering a point that the APIL has made. If there is an
inquest, it may well lead to court proceedings. In fact, there may not
be so much an additional increment to cost overall in terms of the
Government, but some of those court proceedings will result in claims
for damages and so on, and the inquest costs can be factored into the
recovery that the Government would be able to make in a particular
case. So it is by no means open and shut to say that this is just a
charter for a whole tier of extra costs. Instead, I say to the
Committee that it is very much a matter of what is reasonable
and just.
That brings me
to the two substantive points that I want to make in relation to court
proceedings, first with reference primarily to service people and
secondly with reference to what might be termed state-induced
deaths.
Mr.
Gale, I know that you asked the question, so you will remember an
exchange that you had with the Leader of the House about a year ago, on
13 March 2008. She responded to the question that you put to
her by saying:
“I
agree with the hon. Gentleman that if bereaved relatives with no legal
representation turn up on the steps of a coroner’s court and
find that the Ministry of Defence and the Army have a great battery of
solicitors and QCs, they cannot help but feel that the position is
unfair.” Clearly,
I associate myself with that view. She went on to say:
“We
need to give bereaved relatives at inquests a real sense of fairness
and support.” —[Official Report, 13 March 2008;
Vol. 473, c.
421.] Later,
she
said: “It
is important to improve the Coroner Service so that bereaved relatives
can get answers to their questions”.—[Official
Report, 20 March 2008; Vol. 473, c.
1089.] I agree
with all of that.
Without going
into the details of specific cases, the Minister will be aware that,
from time to time, concern is expressed about, for example, the level
of support given to troops, whether their equipment or training is
fitting or appropriate and whether mistakes have been made, by friendly
forces or otherwise. All those matters, unless they are of the highest
degree of secrecy, seem to me entirely appropriate for an open
inquest.
That brings
me to my final point, about the proprietors of this. In relation to
military service, I think my proposal is really part of the military
covenant. If we are going to ask people to serve in the uniformed
services or otherwise, in foreign locations on behalf of their country,
and to put themselves in the line of danger, we have a duty to support
them in their lives, and if they give their lives for their country, we
have a comparable duty to their family, to see that justice is done and
that reasonable inquiries are met.
Let us
suppose that we extend that principle to the rather different area of
state killings. I appreciate that the persons killed can be persons who
are in certain cases not the best or most shining examples of humanity,
criminals or otherwise, and there can be cases of accidental killing
where this does not apply. In that area too we have an obligation,
which dates back to the article 2 obligations that we undertook 60
years ago in the Council of Europe, to see that we do not kill except
in the most precisely defined conditions, and that anything done in the
name of the state, or as a result of the state, is done and explained
publicly, and if necessary people are reproved for their
errors.
I was very
heartened by the remarks of the Secretary of State at Justice questions
last week. In effect, he said that embarrassment—presumably to
public authorities—is not an excuse for not having an enquiry.
In even more striking terms, I would draw the Committee’s
attention to the remarks made by the right hon. Member for Kingston
upon Hull, East (Mr. Prescott), the former Deputy Prime
Minister, who leads the British delegation to the Council of Europe. He
was there in his position as a vice-president, on 30 January this year,
which was
less than two weeks ago. In the middle of a debate on Armenia, he made a
statement that I admired—and I went up to him afterwards and
told him so. It says everything we need to say about these proposals.
In relation to Armenia and certain events there, he
said: “There
should be an inquiry. In my country, we killed someone unlawfully, a
Brazilian. We had a massive inquiry. It was a terrible tragedy. The
authorities were wrong. It is important to hold an
inquiry.” I
thought that was a splendid remark: blunt, straightforward and to the
point.
To summarise,
inevitably the state impacts on the citizen, both in terms of its own
servants whom it puts in the line of danger, in all our interests, and
in what it does either in incarceration or enforcement. I have left
aside the issue about what is done in, for example, the nationalised
state-provided health service, but you can look at that principle as
well.
It seems to
me that the basic principle referred to in our evidence last week is
one of equality of arms. If we are not having a single-advocate
single-function inquiry, but if we are having an inquest where the
state with all its resources is represented by legal counsel, it seems
to me inequitable not to offer the same opportunities to the families
of the bereaved. That is particularly the case where their loved ones
have gone to serve their country, but it is equally the case that the
descendants and family of people who I was implying might be unworthy
or undesirable, who have come into the way of the state and for
whatever reason have been killed, should have the opportunity of
getting to the truth of what took place, and hearing a public
justification of it made, along the splendid lines adumbrated by the
former Deputy Prime
Minister. This
group of amendments is about resources and about giving access to
advocacy. That is an essential part of this process. There are ways of
doing it—as I said, even the convention itself is not
prescriptive of the precise way of dealing with it. But the present
situation, although it is improving in some way, particularly on the
official side, has not gone as far as it should or as far as it would
be just for it to go. I would urge the Committee to consider this with
a view to taking matters further forward in the interests of justice,
of the families involved, and ultimately of a better inquiry and
exposure of lessons to be learnt whenever such tragedy
occurs.
Mr.
George Howarth (Knowsley, North and Sefton, East) (Lab):
It is a great pleasure to follow the hon. Member for Daventry. In fact,
it is almost a unique experience. I think it is the first time in over
20 years in this House that I have heard anyone praise my right hon.
Friend the Member for Kingston upon Hull, East (Mr.
Prescott) for his fluency. However, I know it was sincerely meant and I
would not want to take away from what the hon. Gentleman said in any
way.
I have a
great deal of sympathy with the amendments that stand in the hon.
Gentleman’s name and that of his colleague, mainly because of
the sentiment that is deployed behind them. I will not repeat the
arguments that I have made in another context in this Bill, about
Hillsborough. But there is an issue about what happens with bereaved
families—how their interests are taken into account, the
procedures that are put in place to include them in the process in some
way—that runs right through this section. The same principle
applies, I accept, to those who are in some way in the care of the
state at a time when they meet an untimely end.
So
I sympathise with the hon. Gentleman, but I do have a couple of issues
that I am either unclear or worried about, which it is probably well to
raise at this point. My first worry is that—I think it is what
the hon. Gentleman is trying to deal with, and in this I have already
said that I sympathise with him—there is a feeling on the part
of bereaved families in these sorts of processes that they are in an
unequal position. That is to say, whether it is the state or just a
straightforward inquest, their particular concerns do not seem to have
any way of expressing themselves in the process.
That being
common ground between us, the hon. Gentleman then goes on to argue for
an automatic right to legal representation. But the way that he
described it points in a slightly different direction. The problem is,
as he said, that people arrive on day one of an inquest, having certain
expectations that are not met by the process. I am not entirely clear
in my own mind that having legal representation necessarily resolves
that problem. In fact, in some ways it could exacerbate it.
The hon.
Gentleman says—again I agree with him—that he wants to
see these events as inquisitorial rather than adversarial. But when
professional legal representation is included in any process, it almost
inevitably becomes adversarial. Unless the legal representatives
concerned have some special kind of training that makes them better
prepared for these events than they are on other occasions, it would
inevitably go in the opposite direction to that in which the hon.
Gentleman hopes to move.
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