Mr.
Kidney: To be clear on this subject, there was no
entitlement to legal aid for representation at an inquest before
1997.
Mr.
Bellingham: The hon. Gentleman is right, but he touched on
that Act, which of course greatly reduced the eligibility for legal
aid. On inquests, what concerns me greatly is the extent to which
Government Departments, agencies and quangos increasingly turn up with
a battery of high-powered lawyers. Is it really necessary for
organisations such as the Highways Agency or police authorities to turn
up with outside QCs and lawyers? I should declare an interest as I am a
barrister, and I have been instructed on several occasions to appear at
inquests and have often wondered why a great deal of taxpayers’
money is spent on hiring outside lawyers when those organisations often
have in-house
lawyers. I
quite agree with what has been said so far. It is intimidating for
members of a bereaved family to turn up at an inquest. They might have
been told by the local solicitor that it will cost them a few thousand
pounds to have a barrister and many hundreds of pounds to be
represented by the solicitor. I have been told by many constituents
that they go to the inquest with no legal help. They find it very
intimidating.
Legislation is
not required to reduce the inequality of arms. It requires a
ministerial diktat that says to Departments and agencies, “You
have in-house lawyers and competent in-house staff who can advise on
these legal matters. You do not have to instruct expensive
lawyers.” As the Minister has responsibility for inquests,
coroners’ courts and the criminal system, perhaps she can call
in her colleagues and ask them about the cost of outside
representation. Last year, the MOD spent more than £1 million on
legal representation at inquests in addition to the cost of its
in-house lawyers, which is a huge
figure. What
concerns Conservative Front Benchers is the inequality of arms. We need
a more effective system than the current one, whereby members of the
family or other interested parties can apply for extraordinary funding.
In 2007-08, only 12 applications for extraordinary funding out of 69
were granted. The previous year, it was 16 out of 104. Not many
extraordinary funding applications are granted. Given that we are
looking at a situation of total inequality of arms, we need a better
system to allow families to get legal representation when Departments,
agencies and quangos insist on having
lawyers. Mrs.
Madeleine Moon (Bridgend) (Lab): I wonder whether the hon.
Gentleman will help me in this matter, as I am not from the legal
profession. Would there be tremendous savings, and not only for
Departments, if only solicitors and not barristers could appear at
inquests? Would it be helpful for the Minister to examine
that?
Mr.
Bellingham: The hon. Lady is right, although I would not
go as far as she is suggesting. I have attended inquests where there
were QCs and leading juniors, so QCs, juniors and solicitors were
present. If Departments insist on having outside lawyers, they should
insist on better value for money. If a QC appears, they should do so
without a junior and without the instructing solicitor in place. There
are ways of driving down costs and of getting better value for
money. We
need ministerial action on this matter. I have given the figures for
the MOD, and we could just as easily get the figures for every other
Department. Will the Minister say how much money could be saved if
Ministers issued a decree insisting Departments, quangos and agencies
be more sparing in the use of legal representation at
inquests? The
outcome of many inquests is a civil action. Am I not right that if
negligence is proven at the civil action and costs are awarded to the
injured party to be paid by the negligent party, those costs include
funding for the legal representation at the inquest? If the Minister
and her expert colleagues in the Box do not have the figure, perhaps
she will write to me to say how much money is brought in every year as
result of those costs being
awarded. If
we are looking at how to get more legal representation for bereaved
families, we should look at all those costs and find a practical way
forward. I hope that the Minister takes those points on
board. Mr.
Edward Garnier (Harborough) (Con): Having sat here all
day, it is incumbent on me to say something to get myself into the
Official Report, otherwise people
might think that I am not earning my crust. Having heard what I have to
say, they might not think that I am earning my crust
anyway. The
amendments in the group were tabled by my hon. Friends the Members for
North Wiltshire and for Daventry. I thank the latter for what he said
and the way in which he said it, and I thank the hon. Member for
Stafford for the way in which he advanced his argument on new clause
11. I
want to say one or two things to complement what my hon. Friend the
Member for North-West Norfolk said. This is not a matter for party
political controversy—all members of the Committee are trying to
edge their way forward to find a common-sense way of achieving justice.
Of course, in any coroner’s inquest, we want a resolution as to
how, why and when a deceased person met their death. That is a shared
objective, and if we can arrive at it in the most effective and least
troublesome way for all concerned, including the Treasury, so be
it. It
is easy—sometimes politicians do this—to fall into the
trap of assuming that lawyers have the same venal motives as some
politicians when there is a dispute. I have found it possible in my
life, as a lawyer and a Member of Parliament, to be deeply unattractive
as an MP but to be utterly charming and wonderful as a member of the
Bar. It is entirely possible, when engaging in any fact-finding
exercise, be it an adversarial trial or an inquisitorial inquest, to
behave sensibly and to address the witnesses and advance one’s
arguments with a degree of politeness and courtesy. It is not
difficult. If I may say so, I do not think that lawyers automatically
become aggressive and rude, or forget what they are there to achieve,
when they get into court. They are there to achieve justice,
as a matter of public policy, but also to serve the interests of their
clients, and there is nothing wrong with
that. 5.15
pm I
fully accept the difficulties that any Government must have, especially
during a recession or, as the Prime Minister occasionally says, a
depression—I probably understand how he feels—to work out
how best to order the expenditure of public money. Any suggestion that
a piece of legislation will or could increase state spending is
something about which Ministers must be careful, as must those who
aspire to be Ministers. None the less, there must be a system that can
be devised that takes us out of the problems of the Access to Justice
Act 1999 prohibition, and those that existed beforehand, and that gives
the coroner the discretion, in the appropriate case and when it is
helpful, to award legal representation
assistance. I
am not here to tell the Committee how we would design that
system—there is no point—but there will be cases when it
is appropriate, fair and efficient to give assistance to those who are
unable to afford representation, apart from the military cases
mentioned by the hon. Member for Stafford. One problem with sitting in
cases when one or both parties are unrepresented is that it takes an
awful lot longer. It requires the judge, fact finder or arbitrator to
descend into the forum to extract from emotionally charged parties the
real issues in the case. It is much easier for the tribunal to have
represented parties in front of them, because, by and large, those
parties understand the factual and legal issues that need to be
distilled in order to arrive at a just conclusion.
Essentially, I
am asking the Government to understand that there will be occasions
when it is wholly unnecessary for either side or any party in an
inquisitorial system, such as a coroner’s court, to be
represented. I have appeared in only two inquests, once as an advocate
and once as a witness, and the issues in both those cases were not
difficult to resolve. Both cases involved motor accidents, and I was
paid by the driver’s insurance company in the case in which I
appeared as a
barrister. If
the coroner were given discretion to decide whether representation is
required, he could, according to a template or means test, work out
what level of representation is required. I would go so far as to say
that not simply should the successful party be able to recover any
costs incurred during the coroner’s inquest in subsequent civil
proceedings, as my hon. Friend the Member for North-West Norfolk has
suggested, but when an unnecessary dispute is entered into and time is
wasted by one party running arguments or factual issues that are not
germane or that could be resolved without dispute, the coroner should
have the power to award the costs of an issue or of the inquest to one
or a number of
parties. We
all agree that there is something deeply unattractive about a state
organisation appearing at an inquest with a room full of lawyers, when
the bereaved families, who are emotionally distraught, confused, unable
to seek fairness where it exists and incapable, because of their
situation, to advance their own interests effectively, are at that huge
disadvantage. Yes, there should be equality of arms; yes, there should
be fairness; and yes, there should be common sense; but above all, let
us see what we can do to achieve
justice.
The
Parliamentary Under-Secretary of State for Justice (Bridget
Prentice): If I have not welcomed you to the Committee
this afternoon, Mr. Gale, let me join other hon. Members in
doing
so. I
start by telling the hon. Member for Cardiff, Central that I cannot be
as generous as I was this morning, and I do not want to raise her hopes
further during my comments. Some constructive comments were made during
the debate, and I will consider them to see whether more can be done,
as the hon. and learned Member for Harborough has suggested, not only
for bereaved families, but in the interests of justice. However, I
would be remiss if I did not put on the record the fact that the
proceedings are inquisitorial, not adversarial. They are designed to
establish the facts about a death—who the person was, and the
how, the why and the when of their death—and to consider the
broader circumstances for article 2 cases. I shall return to such cases
in a
moment. In
response to my hon. Friend the Member for Stafford, even with the
inadequacies of the present system, and if one side had a phalanx of
lawyers when the bereaved family was not represented, I do not believe
that the case would be a walkover. The vast majority of coroners are
perfectly capable of ensuring that there is a proper balance and a
proper investigation. I would not go down the road of suggesting that
simply because one side brings along a QC, a junior and several others
it will necessarily receive a better deal from the coroner. Coroners
take considerable pride in ensuring not only that they remain
impartial, but that bereaved families have their questions heard and
answered.
It has been
more or less accepted in Committee that only in the most legally
complex cases would the assistance of counsel to the inquest be
necessary, and the revised coroners’ rules will make provision
for that. The majority of inquests do not need representations. Legal
help—the advice and assistance level of legal aid—is
available subject to financial eligibility and the usual tests. I am
grateful that most members of the Committee recognise that the means
test must remain, if we were to go down the route that has been
suggested. Legal
help would also fund someone to attend as a McKenzie friend, if that is
appropriate, providing that the coroner gave permission. Under clause
30, bereaved and other interested people can appeal certain decisions
free of charge to the chief coroner. Advice on the format of those
appeals and the scope of the appeal system will be published in the
final version of the charter that hopefully will be available before
too long. Obviously, the chief coroner’s office will also be
able to provide advice on appeals, although not direct legal
advice. I
hope that, to some extent, I have answered the question of my right
hon. Friend the Member for Knowsley, North and Sefton, East about
making sure that families are informed about how inquests are
structured. We have put the responsibility of the charter on the
coroner’s office to make sure that people know how the inquest
will be conducted and what the coroner’s role will
be. Naturally,
we accept that there are cases when it is in the wider public interest
that a bereaved person should be represented. In military inquests,
there has been funding for exceptional cases, as there has been in
cases involving hospital deaths. It is already in scope for deaths in
police and prison custody, which are likely to raise article 2 issues.
When I was the Minister with responsibility for legal aid, I always
made exceptional allowance for any death that happened in custody,
because I considered it important that the wider public were served.
Means-testing has to remain, as well as the opportunities for greater
access for family participation that will be set out in the
charter. It
would be easy to say that the cost of extending legal aid would be
prohibitive and to leave it at that. However, let me give an example of
the size of the resource problem. We estimate that about 800 inquests a
year involve public authorities. They cost an average of about
£8,000 for legal aid, which amounts to £6.4
million a year. If we were to extend legal aid to all inquests, the sum
would be much larger. In 2007, there were almost 31,000 inquests in
England and
Wales. The
equality of arms argument is quite attractive. There is a perception
that a family or an interested party that is not represented and that
sees a phalanx of lawyers on the other side feels that there is not an
equality of arms and that they will not receive a fair hearing.
However, I am not entirely convinced that the way to improve that
position is simply to provide another army of lawyers on the other
side. Perhaps I should declare that I, too, am not a lawyer. I am not
saying that so that I can attack lawyers per se, but I agree with the
hon. Member for North-West Norfolk, who said that we should challenge
why one side feels always that it has to have such high levels of
representation. He suggested
that I serve a ministerial diktat on other Departments. What I might do
instead is send my hon. Friend the Under-Secretary of State for Justice
into other Departments to explain to them in clear terms that that is
not necessarily the best way to achieve what we want in terms of
justice at inquests. She is a ferocious terrier when it comes to making
sure that we get proper value for money. That might be another task
that she could take on
board. Mr.
Garnier: There is a perfectly good point to be made about
the overuse of lawyers just as there is about the underuse of lawyers.
An inanimate entity such as a Department or a corporation can only be
represented by a human being at an inquiry. While I accept that there
are Ministry of Justice in-house lawyers who could represent the
Department at an inquiry, they may be doing other things. Sometimes it
is cheaper and more efficient to instruct a lawyer. I do not think that
you need to box yourself in, Mr. Gale, to a
one-size-fits-all—
The
Chairman: I don’t feel remotely boxed
in.
Mr.
Garnier: You have never felt boxed in at all,
Mr. Gale.
It strikes me
that the Minister might want to hold the Under-Secretary in the
Department before she is sent off around Whitehall. There may be some
value, and it may be a more efficient use of the system, to instruct
outside lawyers, who may be
cheaper.
Bridget
Prentice: The hon. and learned Gentleman makes a fair
point. I am sure that if my hon. Friend takes on board this task on my
behalf, she will ask those questions, too. There are occasions when an
outside lawyer may well make more economic sense than an internal
one. I
take on board what my hon. Friend the Member for Stafford said when he
quoted both me and my right hon. Friend the Secretary of State. We
recognise that there is an issue. We would like to see more fairness in
the system. It is important that bereaved people and other interested
parties have more accessible opportunities for involvement in the
process. That involves not only legal representation but the
information that is generally available to them. It is about support
through the witness service and a whole variety of other areas where
people can be
helped. I
turn briefly to amendment 101, which advocates making legal
representatives interested persons under clause 36. I have to resist
that one. It would give the representative the right to appeal under
clause 30, but I can see absolutely no justification for that. Families
already automatically qualify as interested persons, and legal
representatives who are acting on their behalf need to take advice from
the family, rather than having the separate ability to make an appeal
themselves. There is also discretion for the senior coroner to
categorise any other person as interested, if they see
fit. Finally,
amendment 102 proposes that bereaved families should be entitled to
representation on the basis that the coroner may issue a report to
prevent further deaths. There is a practical issue there. A coroner
would not necessarily be able to tell in advance whether they were
likely to issue such a report. Even if that were clear, that would
assume that following the conclusion of the
business of the inquest there would be a separate set of proceedings
where the coroner would be addressed as to whether a report to prevent
future deaths should be made. That is certainly not our intention in
this Bill. Such reports are entirely a matter for the coroner when they
have considered all the evidence. If we were to ratchet up the
proceedings in that kind of way, it would not necessarily give us a
more satisfactory outcome. We consulted on that change last year and as
a result decided it was not a sensible way
forward. As
I have said, hon. Members are only too well aware of the constraints
within which we work in terms of resources, not just in legal aid but
across the board. I hope that that does not mean that we allow the best
to make the enemy of the good. The reforms in this part of the Bill are
a good set of proposals. Yes, some new resources will make them even
better. I dare say that if I were composing my own shopping list, I
would think of a number of things that I would put in before I would
extend legal aid, in particular in terms of benefiting families and
putting them at the heart of the
system. 5.30
pm I
will consider the issues and the very practical and constructive
comments that have been made today, in particular whether there is any
need to move the exception from one side of the line to the other, as
my hon. Friend the Member for Stafford suggested. I will certainly come
back to the hon. Member for North-West Norfolk on costs. He has already
highlighted one in terms of the Ministry of Defence spending over a
£1 million. Another idea that I thought somebody might come up
with is if a Department or an agency decides to employ barristers, it
would also pay for such representation for the bereaved family. That
might focus a few minds quite sharply. I am not advocating that at this
stage in the Bill, let me hasten to add. These are issues that I think
we can consider over the next few weeks. In the meantime, I ask the
hon. Gentleman to withdraw the
amendment.
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