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An inquest is an extremely traumatic time for the bereaved family, particularly when the death of a loved one occurs while in the hands of the state and, as is all too often the case, years rather months have elapsed since the death. I admit that I am more familiar with such occurrences in the military or in prisons than in police custody, but on more than one occasion in this House I have referred to the paucity of information made available to families before inquests, leading to their having false expectations of what they may learn there.
Improving that situation is of course outside the scope of the Bill. However, put at its starkest, what is at stake here is trust in the Government's word. Either it means that they intend to provide effective, transparent
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Lord Thomas of Gresford: My Lords, I am grateful to the Minister for acknowledging the efforts made from these Benches to obtain a right to legal aid at inquests. However, the Minister should acknowledge that hand in hand, marching side by side, has been the noble Lord, Lord Ramsbotham, who has been extremely effective in putting forward submissions similar to ours.
As the Minister pointed out, the amendment does not go as far as we would like. At Second Reading I said I would have liked to have had legal aid as a matter of right in every inquest where the state is represented-not in the categories set out here, but where there is representation for other parties seeking to diminish the liability of the organ of the state involved. However, I am grateful to the Minister for the distance the Government have moved.
I am concerned about the change in wording between what he said to us, both in discussion and in Committee, to the effect that, although as a matter of principle the legal aid would have to be means-tested, he was,
That was the wording that the Minister used today-not that it will be waived "save in exceptional circumstances", but that it will be waived "where appropriate". I should be glad if the Minister would explore which wording we are to rely on.
It may be helpful to your Lordships if I give an illustration of what I mean. A lady called Moyra Stockill died tragically in Middlesbrough police station on 10 December 2003, having been a patient at St Luke's Hospital, where she had been committed under the Mental Health Act. She had suffered a mental illness due to bereavement after the deaths of her husband and a younger sister and she had developed a habit of putting things into her mouth. One problem in the hospital was that she pushed paper tissue into her mouth, which had to be extracted by means of tweezers and a suction pump. When, allegedly, she became violent towards staff in the hospital, the nurse decided to call the police. However, a male nurse pretended to be a policeman and spoke to her as though he were a policeman before the police arrived. Anyway, she was taken to Middlesbrough police station, where there was a failure of communication; there is a dispute between the police and the hospital over what
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That was in 2003. The inquest was supposed to take place on 19 October 2009-six years later. Throughout that period, her daughter, who is a single parent with very little income, was subjected to the stress of the constant delay due to the considerations of the CPS and so on about what was going on. She applied to the Legal Services Commission for funding and the waiving of the eligibility requirements in accordance with the procedures that have pertained until now. Eventually, on 18 March this year, it was decided that she could have legal aid to support advocacy at the hearing but that she would have to meet the costs of £4,000 that she had incurred up to that date. Her only income was an inheritance from her mother who had died. She was in the position of having to pay £4,000 from the inheritance of a mother who, by one means or another, had died in the circumstances that I have mentioned.
At the inquest, there were 12 legal representatives, including six counsel representing police officers, the care trust, the medical professionals and so on-all paid for by us, the taxpayers. It is the taxpayer who pays for the state to be represented, while this poor lady is faced, I believe, with a £4,000 payment. If ever there were circumstances where someone should have had full legal aid to cover the costs of the proceedings, these were they.
I am pleased to hear that there will be a new section of the funding code, which will be brought in by order after consultation with the parties. What all these families have found to be so difficult in applying for exceptional legal aid in the circumstances that have pertained until now is filling out the forms and getting over all the applications and representations that have to be made. If there is to be a new section of the funding code, I hope that it will simplify all these procedures, and make it easy for a family to make the application for legal aid and to set out all the circumstances of the case.
I have every sympathy with the amendment moved by the noble Lord, Lord Ramsbotham, who points out that decisions like this would be helped by a direction or order of the coroner who has read the papers, and who knows precisely what issues are involved as well as how the other parties to the inquest will be represented.
I know that there is a lot of cavilling in that, but it is an important issue. In particular, I am sure that the Minister will tell me whether the means test will be waived, save in exceptional circumstances, as a matter of course.
Lord Lester of Herne Hill: My Lords, I have a brief question in support of the amendment of the noble Lord, Lord Ramsbotham, to give discretion to the coroner. As I understand it, the position is that in human rights terms we are looking at Article 2 of the convention on the right to life and the need for procedural fairness, and at Article 6, essentially the due process clause. It is clear that the principle of equality of arms, a principle well known under the convention and in common law, applies here. We are amending a schedule to what is described as an "access to justice" statute, and access to justice involves equality of arms. Is it not to be said strongly in favour of the noble Lord's amendment that it would give the coroner the necessary discretion to allow them, in the circumstances of the case, to decide how the principle of equality of arms would apply when dealing with access to justice to ensure that there was not the kind of gross imbalance that my noble friend has just described? Without that discretion, how will the principle apply to the government scheme as amended today?
Lord Henley: My Lords, I thank the Government for bringing forward their amendment. We accept that there should be equality of arms between public bodies and the families of individuals who have died while in custody of the state. It has long been seen as an iniquitous situation that government departments have been able to draw on public funds for their legal support while families have not, and we think that the Government have done the right thing.
While we have considerable sympathy for the amendment of the noble Lord, Lord Ramsbotham, however, sadly we have to point out, in view of the constraints on the budget, particularly that of the Ministry of Justice, that there are considerable cost implications in his amendment and we would therefore find it difficult to support it at this late stage of the Bill. No doubt he will find other ways of raising this subject in future and will keep up the pressure on the Government, but because of those cost implications I regret that we are unable to support him at this stage.
Lord Bach: I thank noble Lords who have spoken, particularly the noble Lord, Lord Ramsbotham. I am duly corrected; I should of course have praised him too for the part that he has played in moving the Government as far as they have gone.
I am afraid, however, that I cannot accept his amendment on behalf of the Government. As I understand it, his intention is that legal aid should be available in the cases that we are talking about at the discretion of the coroner. I cannot accept that for the following reasons. The decision will be made against the relevant criteria, which will reflect the position now, when legal aid for representation at inquests is considered under the exceptional funding procedure. The current guidance states that one of the matters to be considered is:
As I understand it, there are currently no situations in civil cases where legal aid is granted before a hearing by judicial office holders, and we see no reason to give
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"I never support or influence legal aid applications. The means test is factual and the merits test is a matter for the decision maker and fundholder ... Further in inquisitorial proceedings it is still important to be seen to be impartial. Though Circuit and District Judges deal with legal aid they are unlikely to also hear the case".
"I don't think the Coroners' Society has an agreed position, in that it has never been formally debated. Individual coroners will have their own view ... In the past, it has sometimes been suggested that coroners should 'support' the legal aid application submitted by properly interested persons in Art 2 cases but I have always been uncomfortable with this in that what may be a 'simple' case to one coroner may be complex to a less experienced one and so any letter in support will be very subjective".
The suggestion of the noble Lord, Lord Ramsbotham, goes much further, potentially leaving coroners exposed to a further area for judicial review. We are looking for as clear, fair and consistent a system as possible, with applications being considered against published criteria. The noble Lord's amendment would not achieve that aim. If I were being pernickety, I would say that his drafting might not achieve his apparent objective. Adding,
would involve a new stage of requiring the coroner's view and would be likely to restrict the availability of legal aid to cases where the coroner asked for it. However, that wording would not make the coroner's decision determinative, as it would still be subject to the criteria in the funding code. I therefore invite the noble Lord to withdraw his amendment today. I have no doubt that he will have other ways of trying to bring it forward on a later occasion.
I hope that the noble Lord, Lord Thomas, will be relieved to hear that I stand by what I said on Report, but we will consult on that when we consult on the regulation. I hope that in my response to the noble Lord, Lord Ramsbotham, I dealt with the matter raised by the noble Lord, Lord Lester.
Lord Ramsbotham: I am grateful to the Minister and the noble Lord, Lord Thomas of Gresford, for their kind words. I listened with great care to what was said. I have been advised that if I were to propose a vote in this House at this time, it would preclude the opportunity for the other House to discuss this matter when the Bill returned to them. I think that it is a matter of sufficient seriousness for me not to hamper that process. Therefore, conscious that the amendment which I have proposed is not as long or as full as I would have liked and that there is an intention to table it in the other House, I beg leave to withdraw it.
(a) D holds another person in slavery or servitude and the circumstances are such that D knows or ought to know that the person is so held, or
(b) D requires another person to perform forced or compulsory labour and the circumstances are such that D knows or ought to know that the person is being required to perform such labour.
(2) In subsection (1) the references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention (which prohibits a person from being held in slavery or servitude or being required to perform forced or compulsory labour).
(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years or a fine, or both.
(a) in relation to England and Wales, 12 months;
(b) in relation to Northern Ireland, 6 months."
Lord Tunnicliffe: My Lords, at Report stage I accepted in principle the case made powerfully by the noble Baroness, Lady Young of Hornsey, and others that there should be a bespoke criminal offence to tackle modern-day slavery and forced labour. Further points have been made to the Minister and me in correspondence, to which I intend to speak at some length.
These government amendments, and in particular the new clause to be inserted by Amendment 15, will create a new offence of holding another person in slavery or servitude or requiring them to perform forced or compulsory labour. The offence will be anchored in Article 4 of the European Convention on Human Rights. The terms "holds another person in slavery or servitude" and "requires another person to perform forced or compulsory labour" would be defined in accordance with the prohibitions in Article 4, including the exceptions that that article contains.
This follows the precedent set by the offence of trafficking people for exploitation in Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which includes behaviour contrary to Article 4 as one form of prohibited exploitation. We believe that this meets the need that has been identified and provides a consistent and coherent approach.
There are exceptions under Article 4 which will also automatically be exceptions in the offence. Work done in the course of lawful detention or military service covering emergencies or life-threatening situations and work or service which forms part of normal civic obligations will be exempt. The new offence will attract a maximum penalty of 14 years' imprisonment to reflect its seriousness.
The behaviour that the new offence prohibits is holding another person in slavery or servitude or requiring another person to perform forced or compulsory labour where the offender either knew or ought to have known that the person was being held or required to perform labour in such circumstances. Broadly speaking, the offence will require proof of a relationship of coercion between the defendant and the worker, and the circumstances will need to be such that the defendant knew that the arrangement was oppressive and not truly voluntary or had deliberately turned a blind eye to that fact. Precisely what constitutes slavery, servitude and forced or compulsory labour will be determined by the courts using existing case law on Article 4 of the European Convention on Human Rights and Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 as it develops. In the vast majority of cases, we do not anticipate any difficulty for the courts in deciding whether the behaviour that they are asked to consider amounts to prohibitive behaviour under the new offence. In addition, we anticipate that sentencing guidelines will include a range of factors which will provide an indication of the relative seriousness of the prohibited behaviour. We would expect these to draw on the types of indicators in the International Labour Organisation's conventions.
The CPS routinely issues legal guidance on offences to prosecutors which is freely available on the internet. It already publishes guidance on the trafficking-for-exploitation offence in Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. One of the ways in which that offence can be committed is where the purpose of the trafficking is exploitation, contrary to Article 4. The guidance refers prosecutors to the case of Siliadin v France, July 2005, stating:
"The evidence showed the applicant, an alien who arrived in France at the age of sixteen, had worked for several years for the respondents carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7 am to 10 pm, without receiving any remuneration. She was obliged to follow instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased. The Court unanimously held that there has been a violation of Article 4 of the Convention".
We anticipate that separate guidance will be issued in relation to the new offence, drawing on the same case law. We also expect that the police will arrange appropriate training for officers. We will work with stakeholders, the public and employers among them, to raise awareness of the new offence.
The noble Baroness asked when the offences will come into force. We intend that it should be as soon as practicable, but we need time to make the necessary arrangements for training and raising awareness. I cannot realistically promise that the offence will be in force in six months' time, but I hope that it will. There is much to be done in the interim, and a range of organisations will need to be involved. I assure the noble Baroness that we will do our best; we will not be dragging our heels. I beg to move.
Baroness Young of Hornsey: I thank the Government for introducing this amendment, which corrects a historical anomaly, whereby we have not in this country made slavery and forced labour a criminal offence. I am glad also that the Minister took the time to address each of my points around guidelines and training et
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Lord Lester of Herne Hill: I think that this is admirable. The Minister's speech is very important and when it is read its importance will be still more appreciated. The amendment fulfils the positive obligation on the United Kingdom under the convention. The reference to ILO standards and other matters is also most welcome, and I congratulate the Government and the noble Baroness, Lady Young, who was the original architect.
The Earl of Sandwich: As one who supported my noble friend's original amendment, I thank the Government warmly for this, and for remaining in contact during the coming period of consultation with the organisations that put time into this debate. I make only one comment. Under existing legislation there have been very low rates of conviction. I hope that the new offence will to some extent make up for that, in conjunction with Article 4 and the asylum and immigration Act 2004.
Lord Tunnicliffe: My Lords, on the point made by the noble Earl, Lord Sandwich, about prosecution rates, I hope that he picked up in my speech the positive commitment to training in enforcement and raising awareness. I hope that that will mean either a good rate of prosecution or, even better, a greatly diminished occurrence of the offence.
I thank the noble Baroness for her pursuit of this point, along with the organisations and the other noble Lords who supported her. I thank noble Lords for the time that they took with the Bill team. I think that I can speak on behalf of all noble Lords involved in thanking the Bill team for the time that they took in developing this response and, for a non-lawyer, the particularly elegant response that they produced.
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