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No one in the Chamber does not sympathise with the noble Baroness’s objectives. We are all concerned about circumstances in which a family suffers again, often in a very savage way, through excessive and insensitive reporting. We would all like to see a remedy to that and, bearing in mind the points made by the noble Lord, Lord Pannick, to find a way of ensuring that it does not bring distress. Press freedom and discussion in a democracy are important principles, and restrictions on the press must be considered with the greatest care. As successive Governments over many years who have sought to operate restrictions have found to their cost, things do not work out in quite the way that they hope. Therefore, I shall begin by recapping policy developments over the past few years in order to put this issue into some context and, I hope, to reassure the noble Baroness that we are thinking constructively about this very real problem.

The draft Coroners Bill 2006 contained a clause on reporting restrictions. That clause would have allowed the media to report cases but the coroner would have had discretion to make an order preventing the names of individuals being published. However, as a direct result of our consultation on the draft Bill, my ministerial colleague, Bridget Prentice, announced in October 2007 that we would take the clause out of the Bill. This was because a broad consensus had emerged that the proposals could limit public scrutiny and the transparency of coroners’ courts—the very point that the noble Lord, Lord Pannick, made—lead to inconsistent reporting of inquests across the country because of the differential impact, and unreasonably raise the expectations of families where the likelihood of any restrictions being imposed was pretty limited. Instead, we agreed to look at how else we could ensure the sensitive reporting of all deaths, not just those of children or those where children would be affected. Nevertheless, the noble Baroness’s concern has a particular sharpness to it.

On 14 January this year, we announced that, following further consultation, the Government had decided that the best way forward was to work with the Press Complaints Commission, bereavement support organisations, the Coroners’ Society and others to bring the Press Complaints Commission’s code of practice to the attention of both bereaved families and the press. The code includes very important provisions to avoid,

and about children generally. It is important that families are aware of the code so that they know what they can do if they feel that they are being harassed by the press or that the case has been misrepresented.

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To this end, in recent months our officials have been working closely with the commission to ensure that the organisations that do important work supporting bereaved people are fully aware of the code. I understand that the commission also works directly with the press—both with new journalists and then via refresher training for more experienced ones—so that reporting is as sensitive as possible. In March this year, the commission also published its updated Editors’ Codebook, which goes into great detail about what sensitive reporting involves.

Against this backdrop, I should add that I doubt whether the amendment would have the effect that the noble Baroness hopes for. It might bar the press from an inquest but they would still be able to obtain and publish information about the inquest, and earlier stages of the coroner’s investigation, because they get that from other sources which would not come under the prohibition. Therefore, the danger would be that such information from secondary sources would be unreliable and would lead to more distress for a bereaved family than if the press were present at the inquest when the issues were discussed clearly. This strengthens our view that the work with the Press Complaints Commission is a more effective and proportionate way forward and more likely to protect bereaved people, whether bereaved by the death of a child or someone of any other age.

I want to give the House the assurance that we take the burden of the noble Baroness’s concern very seriously. She mentioned the particular issues with regard to Bridgend, which had a terrible dimension, but there are other instances. I had the occasion to serve on a Select Committee which looked at press intrusion. The press can improve over time, but we saw one or two cases where it was indefensible that anybody would act in such a way, completely reckless of the horror they were visiting on people who had already been assaulted by appalling news and events. So I am fully at one with the noble Baroness in her objectives and I hope she will see that the Government are trying to be constructive about this. However, if she thinks I have not expressed some concern about the amendment, I hope she will have listened to other voices in Committee which indicate that the amendment should possibly be withdrawn.

Baroness Finlay of Llandaff: I am most grateful to the Minister and to all noble Lords who have spoken, and I want to reassure the House that I had intended this to apply only in exceptional circumstances. I am grateful for the reassuring suggestion from my noble and learned friend Lady Butler-Sloss that Clause 36(2)(e) could potentially cover the issue anyway. I say to the noble Lord, Lord Neill of Bladen, that one of the other sorts of situations is where a genetic abnormality or an infection has been acquired, which the other children do not know about. Once that is listed in the press, the siblings will hear about it at school, which is not the best way.

I also recognise the point made by the noble Lord, Lord Pannick, that the safeguard for high standards is openness, and that we are potentially balancing harms here as to what is the least dangerous situation. I want to have on the record that, having read the Editors

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, I think things have improved and it is a credit to the Government that they have taken into consideration the needs of the bereaved. I can see that this amendment is clumsy, may not achieve its purpose and is in the wrong place. Therefore, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Amendment 25

Moved by Lord Thomas of Gresford

25: After Clause 9, insert the following new Clause—

“Publicly funded legal representation

The Secretary of State shall by regulation provide for non means-tested funds to ensure that the family of the deceased has legal representation at relevant inquests.”

Lord Thomas of Gresford: Amendment 25 is proposed by INQUEST and places an absolute duty on the Secretary of State to provide legal aid for families. Amendment 101 is proposed by the Joint Committee on Human Rights and calls for the Secretary of State to publish a report on access to legal aid for bereaved families.

Ms Harriet Harman, speaking in another place last year, said:

“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”.—[Official Report, Commons, 13/3/08; col. 421.]

One instance of that was the inquest in 2008 into the death of Mark Camm, who died following police contact. There were some 13 legal representatives at the inquest looking after the interests of the chief constable—specific police officers and detention officers, force medical examiners, the NHS trust, and individual accident and emergency doctors—with the family left to fend for themselves. A letter was written to the Secretary of State for Justice by no less than 30 organisations on 5 June, which made the point that:

“Although funding for representation is available in some cases, to receive it families have to make lengthy, complicated, intrusive and time-consuming applications to the Legal Services Commission. Even when this process is completed, many families who require and deserve funding do not receive it. With the state always legally represented, this creates an unjust imbalance between the parties involved in the inquest”.

8.15 pm

I would like your Lordships for a moment to contemplate what happens at an inquest where the state is involved. Undoubtedly all sorts of interests will be represented by lawyers. The evidence may consist of difficult evidence from the post-mortem, presented by the pathologist; it may frequently involve an investigation into what goes on in police stations; there may be comments where the Army or the forces are involved on particular systems and the procedures; evidence may be called in factory cases in relation to what has gone wrong within a particular factory involving the use of complicated machinery; and so on. An unrepresented family cannot conceivably cope with an adequate testing of the evidence that is brought before them.

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Of the applications that have been made under the discretionary process, in 2007-08 only 12 of 69 applications for extraordinary funding that were made to the Legal Services Commission were granted, and in the previous year, the figure was only 16 of 104 applicants. So it is quite clear that there is a considerable deficit in what is available. INQUEST has provided details of certain cases. For example, exceptional funding was denied for the family of a man who died in hospital a few days after a struggle with a police officer on the grounds that the death fell outside the definition of being in custody and raised no matter of wider public interest. In another case, earnings details were sought of the family of a man who was found dead in prison—subsistence farmers living in Ghana. The inquest into the death of a woman in prison was adjourned in November 2006 to permit the representation of the family, and her retired parents were asked for £8,500 by the legal services in February 2007. The retired parents of a man who died in prison were required to use the money set aside from their retirement to contribute a representation. The daughter of a woman who died in police custody was required to contribute from the inheritance she received from her mother who was the subject of the inquest. She had to contribute £4,000, notwithstanding the fact that she was a single mother of a three year-old.

I am grateful to the Association of Personal Injury Lawyers which has provided me a great deal of information. The purpose of this amendment at this stage is to suggest that the Government look at the sort of circumstances—and put them in the Bill, or at least in regulations—in which legal aid funding could be granted. In my Second Reading speech, I made the point that wherever the state is represented, there ought to be at least a presumption, if not a requirement, that the family of the deceased should be properly represented at public expense. Every party represented at an inquest, other than the deceased’s family, may very well be seeking to avoid blame and to make sure that they are not sued. It is only right that the family should be properly represented.

The coroner’s decision should therefore take into account factors such as these: the level of the representation of other participating parties; the likelihood of the bereaved family being disadvantaged due to complexity or understanding; the likelihood of experts and witnesses appearing at the inquest; and the assistance that such representation is likely to give to the coroner in establishing the circumstances of the death or in making recommendations in relation to future deaths. All these matters are of importance.

Legal professionals who are engaged by a family can give proper advice on the civil legal system and whether a civil claim is worth pursuing, and no doubt if they can the legal representatives can cross-examine witnesses and experts. They may very well found a claim that will not require litigation because, as I said yesterday in another context, insurance companies will very often meet a claim as a result of what is said at the inquest.

The budget for civil legal aid has decreased from £922 million in 2003-04 to £795 million in 2007-08—a £127 million decrease in civil legal aid. Those data

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were given in response to a Written Question in the House of Commons in November 2008. The funds must be available for proper legal representation in this case. I see the Minister laughing. I do not think that his laughter will be well received by bereaved families: people whose sons have been killed in Iraq or Afghanistan, or people whose sons or daughters have been subjected to death in prison for one reason or another. I do not think it is a matter for laughter. This is a very serious issue, which must be addressed. It is important that bereaved families receive legal representation to explore the reasons for the death of their loved ones and are advised of the consequences thereafter. I beg to move.

Lord Alton of Liverpool: I added my name to Amendment 25, which the noble Lord, Lord Thomas of Gresford, moved this evening, and if I had had any doubts about it, they would have been assuaged by his magnificent introduction to it. I hope that the Committee will be convinced of the merits of his arguments about this fundamental issue of justice and inequality. I dare say that the Minister will not be able to accept the amendment tonight, but I hope that, between now and Report, he will look again at the financial implications—one of the issues to which the noble Lord, Lord Thomas, just alluded—and the principles that underline the arguments behind the amendment.

Public funding, as we have heard, is currently not available to bereaved families except in exceptional circumstances. That is in stark contrast to public bodies with a direct interest in the inquiry, as we have heard, and which are often represented by one or more legal teams that are often funded by the taxpayer. To put it simply, this cannot be a just state of affairs.

Let me first deal with the denial of legal aid for bereaved families. This omission can leave such families without independent representation and, as such, goes to the very heart of the integrity of the coroner’s inquest as a whole and the protection of Article 2 rights. These rights were enumerated in the European Court of Human Rights case of Jordan v the United Kingdom—a case to which I referred during our proceedings yesterday. It was held in that case that where Article 2 rights were engaged, the subsequent investigation must be independent, effective, prompt and open to public scrutiny and must enable the next of kin to participate. I cannot see how, in the absence of a proper and accessible legal aid system, those requirements can possibly be fulfilled.

While it is true that the funding for representation is permitted in exceptional circumstances, there are substantial obstacles to demonstrating such circumstances, as the term “exceptional” suggests. I do not dismiss the obvious public spending constraints on the Government, especially in the current financial climate, but I would be interested to hear the Minister’s estimate of the costs involved when he comes to reply. I was struck by the figure which the noble Lord, Lord Thomas of Gresford, gave us of a decrease in the legal aid budget; I think he said that it was £127 million. That suggests that there might be the opportunity for some viament in the way in which we use these public funds.

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Will the Minister at least accept that in the specific context of the coroners’ system, we could be dealing with extreme stress and upset on the part of the family, and that in those circumstances the likelihood of a family wishing to undertake a burdensome application to meet such “exceptional” criteria is manifestly slim? Everything often seems to be stacked against them. The scales of justice do not seem to be balanced. That point was noted in a report in the Times on 21 May this year, which quoted Peter Lodder QC, chairman of the Criminal Bar Association, as saying:

“It is the least society can offer”—

the families—

He is not alone in calling for reform. John McQuater, president of the Association of Personal Injury Lawyers, to which the noble Lord, Lord Thomas of Gresford, referred, has expressed “extreme disappointment” that so far Ministers are not backing extending legal aid. He said:

“All too often people go to inquests, already distressed and completely unfamiliar with the system, only to find themselves outflanked and overwhelmed by the lawyers of those who may be responsible for the death of their loved ones”.

An inquest is often the only opportunity for a bereaved family to find out the circumstances of a loved one’s death, and without legal representation they are left to struggle to understand the proceedings and the language of the court. In cases involving state authorities, the problem is compounded by the presence of barristers representing officials and agencies but little opportunity for the family’s voice to be heard. Currently, a family relies on a coroner’s support for their application for funding, while the authorities are assured of adequate legal representation every time. This encourages perceptions of the imbalance which I have just described and inequality, which have an impact on public confidence in cases with state involvement.

For those reasons, I support the amendment which the noble Lord, Lord Thomas of Gresford, has laid before the Committee this evening. This is an instance where the justice system needs to be rebalanced, and I wish his amendment well.

Lord Pannick: I strongly sympathise with the arguments which the noble Lords, Lord Thomas and Lord Alton, have advanced so powerfully. My difficulty with Amendment 25 is that, as I understand it, it would require public funding on a non-means-tested basis. I, for my part, ask the Minister to give an assurance that the Government at least accept that where an inquest raises difficult questions of fact or law involving the possibility of state responsibility, and where the family cannot afford legal representation, public funding should be made available.

Baroness Dean of Thornton-le-Fylde: I, too, support the intentions behind the amendment. My concern relates to military inquests, in which legal aid has by and large been granted wherever applications for it have been made—I believe through the MoD and not the Ministry of Justice, although I am not quite sure about that. For families who have lost someone in the service of their country, usually on the other side of

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the world, as we now see in Afghanistan, to walk into an inquest that has quite often been delayed and to be faced with a phalanx of legal people, a number of them in uniform, can be quite off-putting.

Although this has worked well thus far, I am concerned. I am not touching on the amount by which legal aid payment has been reduced. I know my noble friend well enough from his time as a Ministry of Defence Minister, and the compassion he showed then for the Armed Forces, to know that the smile on his face at the reduction of legal aid spend had nothing at all to do with that. It was probably surprise that any government department could achieve a reduction in any kind of budget.

8.30 pm

I would welcome the Minister giving an indication about military inquests. I accept that it is difficult to separate them out, but Amendment 25 talks about “relevant inquests”, and those that I am talking about are military inquests. Whereas families have been able to be supported through their applications thus far, I would not wish to see this new Bill change that. Therefore, if there is no reference in the Bill to it, I certainly hope that we can be given an assurance that that will continue.

Baroness Butler-Sloss: I very much support the speech of the noble Lord, Lord Pannick. It seems that there are certainly cases where there should be legal aid, and I support his proposals. It would be very helpful if the Minister could tell Members of the House something about the circumstances in which legal aid is actually given in inquests. I, for one, am ignorant about what the arrangements are.

Having expressed a rather strong view about the lack of appropriate legal aid in family cases, I am painfully aware of the continuing huge bill for legal aid. I suspect that the Minister has that well in mind, even if there has been a welcome reduction from the point of view of the Government and, perhaps, of us as the taxpayers. However, it was at an expense. There are various areas where access to justice is limited. One is when those who are bereaved are facing the phalanx of lawyers of those who may be found responsible for the death of the loved one. That unhappy situation certainly shows a degree of injustice, which I am sure that the Government would not wish to continue.

Lord Craig of Radley: I shall speak to Amendments 191B to 191D, which are grouped here in my name and that of the noble Baroness, Lady Dean of Thornton-le-Fylde. These additions amend Schedule 2 to the Access to Justice Act 1999 to include inquests into the deaths of members of Her Majesty’s forces. The assistance given would include the provision of legal aid and advocacy. Those benefiting from these amendments would only include family members or next of kin of deceased service personnel. I acknowledge the assistance of the Royal British Legion in formulating these changes.

As I mentioned at Second Reading—and the noble Lord, Lord Thomas of Gresford, has given more detail tonight on this—too often, the MoD is represented by counsel, while families have no automatic recourse to legal aid. Government counsel, the costs of whom now run into millions of pounds, are said to be present

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to assist the coroner. An inquest is not an adversarial court, so it is asserted that there is no need for the deceased’s next of kin to be legally represented. Pressures on the legal aid budget are also prayed in aid of refusal, which is offensive to the bereaved and does not chime in any way with the undertaking to deal fairly with the families of service personnel. That was a specific cross-government undertaking in Command Paper 7424, The Nation’s Commitment, to which I have already referred.

It is, therefore, as much a duty for the Ministry of Justice and the devolved Administrations as for the Ministry of Defence not to cavil over the cost of making such provision. Moreover, we have recently had the Appeal Court ruling that Article 2, the right to life, can be applied in the field. Unless the ruling is overturned on appeal to the Law Lords or the Supreme Court—and I presume that it will be appealed—that will inevitably mean that the deceased’s next of kin may need legal assistance if human rights legislation may be involved. Alternatively, now that military inquest coroners have built up their expertise, perhaps the MoD should no longer have to field counsel at those hearings to assist the coroner, otherwise it might be for the coroner who will preside at the inquest to authorise legal aid for the deceased’s representatives, if requested, whenever the MoD is represented by counsel.

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