Coroners and Justice Bill - Justice Committee Contents


2  Coroners

4.  The Government's original proposals for reform of the coroners system—responding to the conclusions of the Shipman inquiry and Luce review of death certification—were examined by the Constitutional Affairs Committee in 2006. That Committee made trenchant criticisms of the approach set out in the draft Coroners Bill of July 2006.[2] The present bill follows the Government's consideration of that report and other consultation. This report seeks to assist the House in its consideration of the current bill by highlighting matters on which previous conclusions and recommendations remain pertinent.

NATIONAL VERSUS LOCAL

5.  The Government proposed to continue with the localised structure of the coronial service but to superimpose a national framework of standards. Our predecessor committee criticised the Government's proposals for their lack of detail and for failing to tackle adequately the resource and structural problems facing the existing system and its reliance on local circumstances, and history, for the availability of resources and facilities to each coroner. The Committee viewed the existing service as ill-quipped to meet the expectations of modern society and argued for a fully national service: "it is difficult to see how a Chief Coroner can function effectively as a force for standardisation without being part of a national service. A national service would almost certainly involve significant extra cost, but the failure to introduce one will mean that the current inequalities of resource will continue."[3]

6.  Localised provision with national guidelines remains the Government's approach to the coroners service as set out in the Coroners and Justice Bill. We remain concerned that expectations raised by the Government's reforms may not be met by the proposed arrangements, particularly in the light of the diversity of funding and availability of facilities which exists across different areas.

7.  Our predecessor Committee were concerned about how rural areas with scattered communities were going to be provided with appropriate coronial services and recommended that the Government clarify how the system was to function in such areas. We note the new hierarchy of senior, area and assistant coroners (the first two posts being salaried positions and the third entitled to "fees") and the power of the Lord Chancellor to require the appointment of area and assistant coroners in specific coroner areas. We further note provision for the automatic re-appointment of existing deputy and assistant deputy coroners as "assistant coroners".[4] These provisions may be intended as a backstop power to provide, or augment, coronial services in rural areas but this is not clear from the face of the bill. The Government must make clear during the passage of the Coroners and Justice Bill what arrangements it intends to put in place to secure adequate and appropriate coroners' services and facilities in rural areas with scattered communities.

DEATH CERTIFICATION AND MEDICAL EXPERTISE

8.  In 2006, the Constitutional Affairs Committee said that serious failings of the death certification system, identified not least by two Government-commissioned inquiries, had not been addressed by the Government's proposals. That Committee also believed that the certification system should be reformed and resourced in tandem with any change to the coroners system. The Committee said: the difference in certification procedures for burial and cremation was anomalous; complexity in the death certification system and lack of training for medical practitioners contributed to very high rates of referral of deaths to coroners; and, perhaps crucially, the problem of how to prevent Shipman-style abuse of the system ("unscrupulous doctors certifying their way out of trouble") remained unsolved.[5]

9.  The Coroners and Justice Bill contains provisions designed to implement aspects of the Government's "Improving the process of death certification programme", which aims to establish: unified arrangements for burial and cremation; robust scrutiny of cause of death certificates; more efficient, transparent and convenient processes for the bereaved and for funeral directors; and better information for local clinical governance and public health surveillance.[6]

10.  Our predecessor Committee was also concerned about limitations on coroners' access to medical expertise; its concerns were related in part to weaknesses in the death certification system. That Committee recommended a return to the Government's proposals of 2004—since dropped—that each coroner's area should be served by at least one "medical examiner", and supporting team, to augment and audit the death certification process and advise the coroner on issues of medical investigation.

11.  The bill contains provisions establishing the post of "medical examiner" and a requirement for each primary care trust in England and local health board in Wales to appoint sufficient such examiners, and provide enough resources, to enable the independent, robust, proportionate and consistent scrutiny of medical certificates of cause of death.[7] Other functions may be conferred by regulations to "support future developments of the service".[8] The locating of medical examiners in local health trusts or boards merits particular scrutiny in the passage of this Bill, particularly in relation to the investigation of deaths occurring within NHS facilities. Our view, supported by some medical practitioner bodies, is that the role envisaged for the new medical examiners contained in the Coroners and Justice Bill—independent scrutiny of death certification—implies a need for a line of accountability between examiners and the new national medical advisor to the new chief coroner, at the very least, if not complete independence from the NHS. If the need for more direct access to medical expertise by coroners is accepted, there is a clear case for medical examiners to be employed by the Ministry of Justice, or directly by the coroners service, rather than undertaking this work as NHS employees.

INQUESTS INVOLVING MATTERS THAT SHOULD NOT BE MADE PUBLIC

12.  The Coroners and Justice Bill contains provisions for inquests that are certified by the Secretary of State as involving matters that should not be made public—on the grounds of risk to national security, relations with another country, the prevention or detection of crime, the safety of a witness or other person or the public interest—to be conducted by a judge of the High Court (acting under coronial law) and without a jury. Ancillary to this is a provision amending the Regulation of Investigatory Powers Act 2000 (RIPA) to allow any material to which RIPA applies to be disclosed to the High Court judge conducting the investigation or any person appointed as independent counsel to the inquest; including one representing the interests of the deceased's family (and such counsel may probe and challenge the evidence on their behalf).[9]

13.  Equivalent provisions first appeared in the Counter-Terrorism Bill of Session 2007-08 without any form of prior consultation and without reference to their human rights implications in the explanatory notes to the bill. These provisions were reported on by both this Committee and the Joint Committee on Human Rights. Both committees took the view that the provisions could be damaging to the obligation on the UK, under Article 2 of the European Convention of Human Rights (ECHR), to undertake an investigation into a death by force, particularly force used by state agents, which is effective, independent, open to public scrutiny and involves the next of kin. It was also unclear why the existing law of public interest immunity does not provide adequate protection. Finally, a potential inconsistency in the use of intercept evidence in inquests on the one hand, and criminal trials on the other, appeared to be created by the proposed amending of RIPA in the bill.[10]

14.  The Government withdrew the clauses providing for inquests without juries from the Counter-Terrorism Bill in 2008 but has re-introduced similar provisions in the Coroners and Justice Bill. However, we are not aware of any consultation on these provisions having taken place in the intervening period despite reservations having been expressed by the two most relevant select committees of the House. These clauses, and the changes made to them since their first appearance in the Counter-Terrorism Bill, will therefore merit close and careful scrutiny as the Coroners and Justice Bill passes through Parliament. The Government should be prepared to withdraw them once again if it cannot justify these provisions as proportionate and fully compatible with Article 2 of the ECHR.

CHARTER FOR BEREAVED PEOPLE

15.  In 2006, the Constitutional Affairs Committee received evidence of variations in people's experience of the coroners service—ranging from compassionately administered practices to outright "horror stories"—and welcomed the Government's proposal for a charter for the bereaved.[11] The Coroners and Justice Bill contains provisions enabling the Lord Chancellor, after consultation with the new Chief Coroner, to issue guidance "about the way in which the coroner system is expected to operate in relation to interested persons".[12] The explanatory notes to the bill state that: "It is intended that the first such guidance will be in relation to bereaved people, in the form of the draft Charter for the Bereaved, published at the same time as the Bill. Further non-statutory guidance may be introduced for other classes of interested persons in the future."[13]

16.  A draft Charter for bereaved people was first published in July 2006 alongside the original the draft Coroners Bill. There was public consultation following publication and further consultation in 2008. The Minister's foreword to the latest version heralds more consultation by the new Chief Coroner before the reforms are implemented in full "in two or three years' time".[14] The provisions of the current draft Charter are summarised in an annex to this report. We regard the aspirations expressed through the draft Charter as commendable. An additional duty on coroners to provide information for families with whom they are dealing on the full range of their potential responsibilities, and available support, in relation to public authorities would make the charter more comprehensive.[15]

17.  We welcome the Government's latest proposals for a charter for bereaved people in contact with the coroner system. However, we have already expressed our concern about the risk that not all coroner areas will be able to fulfil the expectations raised by the Government's overall plans for reform. We are especially concerned that bereaved people in particular may be disappointed in circumstances where variable standards in service are likely to persist, despite a charter, as a result of continuing reliance on localised arrangements leading to diverse levels of funding and facilities in different areas.




2   Eighth Report from the Constitutional Affairs Committee, Session 2005-06, Reform of the coroners' system and death certification, HC 902 (Government reply, Cm 6943) Back

3   HC (2005-06) 902-I, para 101 Back

4   Bill 9, 54/4, Part 1, Chapter 4 and Schedule 3 Back

5   HC (2005-06) 902 and see para 46 Back

6   Department of Health, Improving the process of death certification in England and Wales: overview of programme, November 2008, GR-10797 Back

7   Bill 9, 54/4, Part 1, Chapter 2  Back

8   Coroners and Justice Bill, Explanatory Notes, Bill 9 - EN, paras 160-161 Back

9   Bill 9, 54/4, Part 1, Chapter 1, Clauses 11 and 13 and see Explanatory Notes, Bill 9 - EN, para 99-103 and 108. Back

10   Justice Committee, Third Report of Session 2007-08, Counter Terrorism Bill, HC 405, and Joint Committee on Human Rights, Thirtieth Report of Session 2007-08, Counter-terrorism policy and human rights (thirteenth report): Counter-Terrorism Bill, HC 1077 / HL 172, paragraphs 110-121 Back

11   Eighth Report from the Constitutional Affairs Committee, Session 2005-06, Reform of the coroners' system and death certification, HC 902 (Government reply, Cm 6943), paragraphs 79 and 185 Back

12   Bill 9, 54/4, Part 1, Chapter 6, Clause 32. Clause 36 defines "interested persons" and includes, amongst others, the family, and personal representatives, of the deceased. Back

13   Bill 9-EN, 54/4, paragraph 282 Back

14   Charter for bereaved people who come into contact with a reformed coroner system, Revised draft Charter and response to 2008 discussion paper, ministry of Justice, January 2009 (www.justice.gov.uk/docs/charter-bereaved.pdf) Back

15   Bereaved families whose loss is being dealt with by a coroner may have no cause to be in contact with other public authorities, such as a registrar of births, deaths and marriages, until after investigation and/or inquest. In such cases coroners should be responsible for supplying information to families such as is summarised in What to do after a death in England and Wales: A guide to what you must do and the help you can get, previously issued by the Department for Work and Pensions, D49, April 2006. Back


 
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Prepared 23 January 2009