[Mrs Anne Main in the Chair]
I beg to move,
That this House has considered legal aid for inquests.
It is a pleasure to serve under your chairship, Mrs Main. This debate is about a simple premise: who can access justice, and who cannot? Much to our shame, during inquests, too many people who have experienced appalling loss and suffering fall into the latter category. This debate is about deaths in state detention and custody, or where there is a public interest, and about how the families of those lost should be given adequate resources to find the truth. It is about a fair request for a non-intrusive, non-means-tested, automatic right to legal aid for legal representation for bereaved families. The charity Inquest claims that granting such a request will cost as little as £5 million, yet it will be invaluable to suffering families who need answers. The topic of legal aid for inquests has rightly moved up the political agenda, and I pay tribute to Inquest and other campaigners who have worked tirelessly to make that so.
A huge injustice sits at the very heart of our justice system. On the one hand, state bodies and representatives are equipped with access to unlimited funds and resources —the best experts and the best legal teams. On the other hand, vulnerable families in the midst of grief are forced to navigate a complex and alien application process that is provided with the bare minimum of support—indeed, most people will not even receive that.
Legal aid is currently means-tested, and even then it is for limited purposes. Once someone has overcome that hurdle they must then apply for exceptional case funding, which puts them at a massive disadvantage compared with the huge resources available to state bodies.
My hon. Friend gets to the heart of this debate. The process is far too complex, and those who apply for legal aid are forced to run up huge legal bills on their own, represent themselves in court or rely on the generosity of strangers to help raise the required funds. Often, people have to tackle complex legal processes that involve multiple interested persons and agencies. Among a host of other complicated legal matters, people must address issues such as access to and release of a body, post mortems, communication with investigation teams, securing evidence and criminal investigations. Most people do not have the legal knowledge to do those things, and many do not have the resources to help. I ask the Minister: is that fair?
We are talking about the death of a child in a mental health setting—a death as a result of neglectful state services—or the self-inflicted death of a prisoner. The families of those lost feel a deep sense of pain. This debate is about deaths in state detention and custody, or where there is a clear public interest element to finding out the truth—for example, the Grenfell tragedy, the disaster at Hillsborough, or the recent case of Molly Russell, who tragically took her own life, in part, her parents believe, because of distressing material related to depression and suicide that she was able easily to access on social media platforms.
Order. Inquests once opened are sub judice, and even when adjourned they are under a strict interpretation of the resolution. Reference should not be made to legal inquests at all, but if something is linked to a specific case, as the hon. Lady just did, we must ask for details of that case not to be mentioned as they may well compromise the case currently under consideration. I urge all Members who wish to refer to that case to try to refrain from making specific references.
I congratulate my hon. Friend on making a powerful speech, and I thank her for initiating the debate. The point she is making, and the examples she gives, are incredibly important. This debate is about death at the hands of the state, and the families who are trying to improve things so that such deaths never happen again, and the same mistakes—or criminal acts—are not made again. Given what we are talking about, does she agree that it is even more grossly unfair that the state’s legal advice and representation should be so thoroughly weighted against the victims?
My hon. Friend is absolutely right. All we are asking for is a level playing field. At the moment, the situation is totally disproportionate—a point I will come to.
The families of victims require help, accountability and answers, not only for themselves but, selflessly, to make sure that no other family goes through what they have. Instead, they are left by a callous Government to fight alone, their voices denied and excluded from the process. The scale of the discrepancy is a disgrace. In 2017 the Ministry of Justice spent £4.2 million on legal representation for the Prison Service in inquests involving deaths. In the same year the families of those who died were awarded just £92,000 in legal aid. I ask the Minister again: how can we in this place look the families of victims in the eyes and tell them that the current system is fair?
Where families are seeking through truth the knowledge that their loss was not in vain, the state seeks damage limitation through multiple expert legal teams defending the interests and reputations of corporate bodies. Such a staggering inequality of arms is a stain on our justice system. The testimony of those who have experienced it at first hand, kindly provided to me by Inquest, serves to prove it so. The process required to acquire legal aid is complicated, and the effects on those not fortunate enough to be successful are devastating. One father who lost his son in police custody said:
“The legal aid application process was incredibly stressful...the hoops we had to jump through to get funding to represent our son, who died as a result of one of the state agency’s actions, remains a source of anger and hurt.”
Another, who lost his daughter in a care home after a long history of serious mental ill health, said:
“The time, effort, emotional energy, distress that the process has cost me in itself is very damaging. The cost of my legal representation to the State fades into insignificance compared to the cost the State has incurred in the aftermath of my daughter’s death.”
Another who was unsuccessful in their legal aid application said:
“We had to do everything ourselves. We had no lawyer at the inquest. Those three weeks were the most terrifying thing I’ve ever done in my life. I had to cross examine witnesses, it was absolutely terrifying, and they had lawyers. There needs to be a level playing field; a family member should never be put through that.”
My hon. Friend is making an excellent speech with many good points. Does she agree that many families find the process intrusive as their own circumstances and financial situation are looked into? However, the state gets automatic legal representation. Does that not create exactly the uneven playing field that she refers to?
My hon. Friend makes an important point. The system is simply unfair. Others have spoken of how the inquisitorial hearings are anything but. Instead, they are adversarial, law-drenched, distressing journeys, where already traumatised families are silenced and a well-oiled state machine sets about cementing a wall of denial. The families did not ask to be in such a situation. It was not something they sought or could prepare for. They are thrust unexpectedly into intense grief and pain and forced to go through further trauma.
One father spoke of how his family was forced to use money that they had been putting away for his daughter’s wedding to pay for legal help following her death. Such stories are utterly devastating. The Government must do more to help. They cannot continue to turn a blind eye to the suffering of some of the most vulnerable in our justice system.
The Government seem to rely on this point about the inquisitorial process, so one must ask why, if the family does not need representation, the various state bodies always need to be lawyered up. Indeed, there is something deeply cynical about the Government saying that in their final report—
My hon. Friend makes an important point: the system is completely unfair. The Government and their agencies are given a blank cheque, whereas victims are not. It is not just the families of those lost and charities such as Inquest telling them that. Reports have proposed the necessity for changes for years, yet over the last few years the weight of evidence has mounted. Dame Angiolini in her report on deaths and serious incidents in police custody; the Right Rev. James Jones in his report on Hillsborough and the experiences of families; Lord Bach; two chief coroners; Baroness Corston; Lord Harris; the Joint Committee on Human Rights; the Independent Review of the Mental Health Act; and agencies, including the Independent Office for Police Conduct, have all outlined the need for change. Central to the reports of Dame Angiolini and the Right Rev. James Jones were the voices of families speaking about the impact of the inquest process on their wellbeing, much like the testimonies we have heard today.
In response, the Government launched a call for evidence in July as part of their review of legal aid for inquests. What followed was a Government submission document that was riddled with errors, strewn with inaccuracies and in no way befitting the seriousness of the subject. The short turnaround time for submissions left those whom the Government should have been doing their utmost to hear from unable to sufficiently offer their thoughts.
Furthermore, the document made no explicit mention of, and no adequate attempt to hear from, bereaved families. After its so-called consultation, it was therefore of little surprise that the, in February Ministry of Justice decided to ignore the weight of evidence to the contrary and refused the call for non-means-tested legal aid for inquests where the state has representation.
The Government’s normal consultation period is 12 weeks. Does my hon. Friend share my surprise that it was six weeks for this consultation, which was held over the peak summer holiday period? Does she share my suspicion about its timing?
I absolutely share my hon. Friend’s concern and suspicion. I hope the Minister will answer that point.
For families to fully and effectively participate in the inquest process, they should have access to free automatic non-means-tested legal representation throughout. The Labour party has pledged to provide that, after listening to those who know best, but the Government remain in denial. However, the playing field must be levelled, the inequality of arms addressed and access to justice made a staple of bereaved families’ experience throughout inquests.
I support that call. Not only is that the way to discover the truth that will provide redress to individual families in individual cases, but it is an avenue to expose the systematic practice problems that have led to deaths, which can alert the authorities and prevent more. That means providing truth and accountability to prevent another Hillsborough or Grenfell, and ensuring that our justice system works for everyone—not just those who can afford it.
I had not planned on speaking, but when I saw the debate’s title, I realised that I come at the issue from a variety of angles and, sadly, with a great deal of experience. In about 1994, as a junior lawyer, I was sent—because I was cheap, I suspect —to sit in on inquests concerning elderly people who had died in old people’s homes. In those days, it was common practice for us to provide a report for insurance companies, which even junior lawyers were considered capable of, and inquests were viewed as the place where we could garner information.
As a junior lawyer, I thought that was exciting, and I was pleased to see a system that was inquisitorial and not that adversarial, and where real facts were teased out that could be of use, or not, to insurance companies that wanted to protect their assets from later claims. I remember being excited by the ancient nature of the coronial system, by how flexible it could be and by how it can adapt to needs today and later on.
Ultimately, I became a Government lawyer for 17 years and specialised in article 2 inquests. [Interruption.] I am glad to be described as the best of the best, and we were—indeed, we are, incidentally. In that respect, I had the privilege of taking part in some very sad inquests, including many relating to Iraq and Afghanistan, Mr Litvinenko’s inquest, the 7/7 bombings inquests, and far too many about prisoner deaths. As a Government lawyer, I hope that I was able to help and counsel families, and that we were able to come to the truth of what happened in many of those tragic situations. I also, rightly, protected the Government’s assets in terms of secret material, which is what I was usually there for.
The hon. Lady is making an interesting speech, but does she agree that it illustrates exactly the inequality of arms at inquests? Insurance companies and the Government have exceptional lawyers, but the bereaved families do not, and that is why the system is so disadvantageous for them.
I partially agree with the hon. Lady, for whom I have great respect. I am trying to make a speech that is possibly slightly less political than the one that opened the debate, and to say that there are many reasons for inquests. As a Government lawyer I was useful in protecting the secrecy of what had happened. Often, in a war context, for example, important national security secrets had to be protected. It was not awfully much something that we were protecting from families—often families had been talked through the secret issue in the privacy of their home at an earlier date; it was just something that we did not want to have aired in open court. I am not anti-family at all, and I will come on to say why not, but I am trying to explain why, if the Government are lawyered up, it is, I hope, not often in an adversarial way. In my working life, I tried hard to make sure that it was not that way. I completely accept that it does not always look like that.
Yes, Mrs Main. I should also say that I am the parent of a child who died, so I know how ghastly it is for people to think of the death of someone who matters so much to them being legalised. I am fully aware of the impact and full horror of the inquest process for families, which is why we are talking about whether they need legal aid.
The inquest usually comes at a particularly bad time for families. Is it often around the anniversary mark—sadly, in Mr Litvinenko’s case, it was seven years later—and it is often at a difficult time in the grieving process. Inquests themselves are horrible. Legal language is used about someone’s worst nightmares. In the inquest, the family will meet the other people who were there at the time of death, and hear evidence directly from people who might have been the last to talk to their loved one or, indeed, whom they might blame for causing the death. It is often the first time that that happens. It is really horrible.
Even in the most no-blame type of car accident the inquest may be the first time the family hears truly about the time of death. They will have been told at the time, “Oh, yes, he died instantly,” but at the inquest they might find out that he died two or three hours later. They may find out about the place of death: “Oh, yes, he died instantly at the scene.” Oh no, he did not; he died two or three hours later in hospital. Those are horrible, difficult issues for a family to deal with and very difficult to grapple with, but they are not legal issues, and that is the point I am politely trying to make. This does not have to be adversarial.
In my experience, coroners are very sensitive and well trained these days. Coroners’ officers should be lauded to the skies. They do a great deal of loving and supportive work with families.
My hon. Friend speaks about a more inquisitorial system. Does she agree that if we are looking at a genuinely inquisitorial system of the kind that would be recognised on the continent, it might help if coroners were able to question and probe rather than being expected purely to be the independent arbiter and judge, which lends itself to cases being more adversarial?
Order. Before the hon. Lady continues her speech, can I say that it is far broader than the debate we are having. Given the shortness of the debate, I would appreciate it if we could stick to the legal aid aspect that has been explored by the Member who moved the motion. I do not wish to interrupt, and I know that the hon. Lady has personal experience, but I would like her to get on to the debate.
My hon. Friend’s intervention was helpful, and the point I am trying to make is that I am not sure legal aid is the answer in all cases. I am quite sure that more support is needed for families. I am not sure that that support can be provided only by lawyers. I do support the idea of airline-style investigations—for example, in the health service. We are teasing this out at the moment; it is quite a new concept in the health world, and we have talked about bringing it into the prison world as well. That style of inquisitorial investigation is possibly more useful for families than legal aid. That is the point I am trying to make, Mrs Main—I am sorry if it does not entirely fit with the terms of your debate, but that is why I am not sure that legal aid for inquests—
My hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) is here. He is a great man, and he recently managed to steer a private Member’s Bill on stillbirth inquests through the extraordinary system that we have set up for such Bills—I was involved tangentially in framing that Bill. I am not sure whether we need legal aid for the parents of stillborn babies who have inquests—I think the pass is still out on that. We do not want to over-legalise some of these very tragic events.
I welcome the review the Government had, although I slightly take issue with what the hon. Member for Cardiff Central (Jo Stevens) said about the timing of the review. I suspect, although the Minister may correct me, that the timing was meant to fit in with the legal aid review generally. I counsel hon. Members present not to over-politicise this issue. It is a difficult one. I, for one, am convinced that families need more support, but there might be better people than lawyers to provide it.
Before I start, may I say that it is a pleasure to speak under your chairmanship, Mrs Main?
I want to begin by saying how much I empathise with the aim of an inquiry, which is to find the truth of the matter when someone has died whose safety has been entrusted to the Government—truth that, when found, can provide the families of the bereaved with much-needed and sought-after closure; that simply tells them how and why it is that their loved ones are no longer here; and that provides a foundation of understanding about what mistakes may have been made and how we can learn from them to ensure that what happened may never happen again.
Yet what we find in the present system of legal aid is a great barrier to the goals of truth and understanding. The aim of the bereaved families, more than any other party in an inquest, is to ensure that what has happened to their loved ones cannot happen again, and that nobody must again feel the pain of losing somebody they love in the same, preventable way that they did. However, under the present rules, bereaved families are more often than not forced to fund their own legal representation in these inquiries.
Under the current financial eligibility rules, the threshold for receiving legal aid for an inquest is only a gross monthly income of £2,657—a gross income of just under £32,000 per year. Those earning more must pay for rent, food and all the other basic essentials of life, as well as what can be the crippling costs of legal fees in inquiries that can take months, if not years, to complete, as in the case of the Mid Staffordshire inquiry, the Morecambe Bay investigation and the Harris review. All those inquiries provided great insight into how the state needed to make changes to protect the lives of those who had been placed into its care. However, those who cannot cover the costs face the prospect of representing themselves in proceedings.
When talking about the Hillsborough disaster, Bishop James Jones described how families who had no public money provided for their legal expenses, or who were self-funded, would be forced to pool their resources. At one of the mini-inquests, one solicitor represented the interests of over 90 families. At the generic inquest, one barrister represented 43 families. One of the families was represented by the mother of the person who had died. What a harrowing experience for a woman who had lost her son to be forced to question witnesses and untangle legal proceedings just to find out what had happened to her child.
Compounding that is the fact that all those other families had no representation whatever. Their voice was stolen away from them because they did not have the financial means to represent themselves. It is simply not right, and it is simply not justice.
When we compare that to the funding that the Government or linked organisations have in these kinds of proceedings, we find that, unlike the bereaved families of those lost, the Government are able to bring the full might of the public purse to bear on these proceedings. On 3 April, the Secretary of State responded to my question about public funding for bereaved families. He stated:
“We must remember that there are ways in which we can be sympathetic to and supportive of bereaved families without ending up in an arms race of who has the most lawyers, the most expensive lawyers and so on”.
If we must use the analogy of an arms race, then at present the Government can spend money on the legal equivalent of tanks, helicopters, fleets and so on, while the families of the bereaved are left with the legal equivalent of a stick. It is all well and good for the Secretary of State to argue that we must not enter an arms race, when the Government sit in the position of power, possessing the finance to bring those legal arms to bear.
The Secretary of State also stated that he was “keen to ensure that” inquests
“continue to be essentially an inquisitorial process, rather than adversarial”.
However, I and many others in this place and beyond would argue that the process is already adversarial. While the nature of the inquest itself is not adversarial, we often find that the Government and other organisations do not fear the judgment of the coroner’s court, but that of the court of public opinion.
Quite often in an inquest a person will be gathering information, and that will be the only venue in which they can do so in advance of potential litigation. Does my hon. Friend agree that it is so important for families to have lawyers with them to enable them to carry out that process?
Absolutely, and that is why I am here today. The Government and other organisations approach proceedings with the aim of damage limitation, instructing combative legal teams to defend state policies and practices, rather than to seek the truth that I spoke of earlier.
There are ways in which we can overcome that imbalance. First, automatic, non-means-tested legal aid for families would both help to level the playing field and prevent families from being burdened with crippling legal costs. It would also avoid forcing families to jump through confusing bureaucratic hoops during what can be one of the most traumatic periods, if not the most traumatic period, in their lives. Non-means-tested legal aid is provided in care and supervision proceedings in which children are to be removed from their parents, and in certain cases under the Mental Health Act 1983 and the Mental Capacity Act 2005, which demonstrates that there is a precedent.
Secondly, funding for families must be equivalent to that enjoyed by the state bodies, public authorities or corporate bodies represented. Ensuring like-for-like spending between the parties involved in inquests would not only further help to level the playing field for bereaved families, but would prevent the arms race that the Secretary of State alluded to in his response on 3 April. The parties mentioned would be able to spend more on lawyers only if the bereaved families received the same funding. As mentioned earlier, bereaved families do not have the means with which to outspend the Government.
I ask the Government to heed the recommendations made by the 1999 Stephen Lawrence inquiry, the 2003 independent review of coroner services, the 2004 Joint Committee on Human Rights, the 2007 Corston report, the 2015 Harris review, the 2016 report of the Chief Coroner to the Lord Chancellor, the 2017 Angiolini review, the 2017 Bach commission, the 2017 Hillsborough review, the 2017 report of the Chief Coroner to the Lord Chancellor, the 2018 Joint Committee on Human Rights and the 2018 Independent Office for Police Conduct consultation response. I ask them then to finally make the reforms necessary to give bereaved families the tools they need to achieve the fundamental goal of inquests, which is to find out the truth—the simple truth.
I congratulate the hon. Member for Barnsley East (Stephanie Peacock) on securing the debate and on doing such a good job of presenting her case. It is always a pleasure to follow the hon. Member for St Helens South and Whiston (Ms Rimmer), who is not just a colleague but a good friend. It was good to hear her comments too.
I wish to highlight the case of young Molly Russell’s parents and their fight for legal aid as they tried to make sense of their daughter’s death and to make a change to prevent more deaths. That is heart-rending and touching, and I fully support them. I was relieved to see the Minister’s Department being more positive about helping them—well done for that.
In my constituency, I have seen several cases in which legal aid has been turned down, and that can only be classed as a travesty. I have also watched people representing themselves and receiving help from a judge who felt that, on the day, during the trial, they should advise the person before them. The hon. Member for Barnsley East referred to how complex the system is, and it is sometimes hard to follow how it works. However, that should not happen in genuine cases in which there is an element of public interest and a need for not just representation but the correct representation.
There must be a more open route to public inquiry funding, but there must also be safeguards in place. Lessons have to be learned from the likes of the Bloody Sunday inquiry, during which approximately £400 million was claimed, although not paid out. After that, there was a question about, and an inquiry into, the fees for the solicitors’ firms. Almost £200 million was paid out in that one case. That is astronomical. There must be a clear delineation as to what is in the public interest. A system is now in place for legacy issues in Northern Ireland. There is a budget to be used for these cases to ensure that there is not further Saville inquiry palaver—to use a word used quite often in Ulster Scots. I understand that there is not an unlimited supply of finance, but the decision not to introduce automatic public funding where the state is represented, and it being cited that the policy change would cost between £30 million and £70 million, seems strange when the cost of just one case in Northern Ireland was allowed to run up to £200 million.
My parliamentary aide may not be on the breadline—we know she is not—but could she afford to take on the Government? No, she could not. Could anyone in the House today afford to take on the Government? I suggest that the answer is no. Therefore, on behalf of our constituents, whom we are here to represent, the argument has to be that they would find that difficult as well. Most people could not do it. There must be some middle ground that we have not yet reached that takes account of the representations of those who need legal aid to satisfy their own conscience, to answer the questions they have and to get beyond the period of grief that they are clearly experiencing.
I recently read an article that furiously challenged the decision. It stated:
“The ministry said: ‘Means testing serves to determine the allocation of taxpayers’ money to those most in need. This mechanism upholds the wider policy intention of the existing legal aid statutory framework of ensuring that legal aid is targeted at those who need it most,”
as it should be,
“for the most serious cases in which legal advice or representation is justified. An additional spend of £30m-£70m would run counter to this wider policy intention.’”
I have always supported access to legal aid, whatever the case may be. I know that this debate is specifically about inquests, but I have supported legal aid being available across the board and have always been of that opinion. I supported that when I was in my previous job in the Northern Ireland Assembly, and I am on record as supporting it in this House as well. But I do understand that, in relation to inquests, there is a special need. The hon. Member for Barnsley East, in introducing the debate, explained that special need, and you have guided us, Mrs Main, on how best we should do that as well.
I want to finish with this comment. Inquest, a campaigning charity—most of us will know it and the good work that it does—has called for automatic non-means-tested legal aid funding to families for specialist representation immediately after a state-related death, to cover preparation for and representation at the inquest and for other legal processes. We are elected representatives and compassionate people. Our compassionate nature as representatives should be reflected in what we ask the Minister for today. I fully support the call for legal aid at inquests and believe that that message should go from this place today. I gently and respectfully ask the Minister for a positive response to help those who find themselves in a very difficult situation. On legal aid for inquests, let us do our best for them.
I congratulate the hon. Member for Barnsley East (Stephanie Peacock) on securing this debate. It concerns a very technical subject that is hugely important to a number of constituents, whether because of large tragedies involving the multiple loss of human life or because of the single tragedy of losing someone, from a baby through to someone in adulthood. I also pay tribute to my hon. Friend the Member for Banbury (Victoria Prentis) for her kind words about my private Member’s Bill, now an Act, which will enable coroners to have the power to launch inquests into stillbirths. The consultation, which has already been launched by the Ministry for Justice, will explore the whole issue of legal aid for those inquests, too. It is very important that we get the consultation right, so that measures in this sensitive area can be brought in proportionately and appropriately and help in the campaign to reduce the number of stillbirths in this country, which we all wish well. It is also important to explain to already traumatised and grieving parents exactly what happened and how improvements can be made to the system to make sure it is less likely to happen to other parents in that situation in the future.
That is a completely different subject, and one that needs to be looked at, absolutely. I am sympathetic to this. When families are faced with the sudden loss of a loved one through circumstances that are well beyond their control—in a workplace, air crash, or whatever—we need to give them every support and not add challenges such as the need to try to find the money to fund lawyers to try to get to the basics of the truth.
I want to focus purely on the Shoreham air show crash in my constituency. On that fateful summer’s day in August 2015, 11 Sussex men were tragically in the wrong place at the wrong time and lost their lives. Almost four years on, we have still not had the inquest for that tragedy. For a range of issues, not least the fact that there has now been a trial, which was completed last month, that delay has meant that the families of those 11 men have been denied the opportunity to get to the bottom of the truth for an extended period, compounding the grief, confusion and challenges that they have felt. We need to do more to make their pain less in any way we can. The system is not working for such people, as we have heard in the case of other tragedies as well.
To recap, in August 2015 those 11 men lost their lives when a Hawker jet crashed on the A27, on the very spot where I had been travelling in my car four minutes before the accident happened. It could have been a much more serious tragedy, and as it was, it was the largest civilian loss of life since the London terrorist attack in 2005. It had a huge impact, not only on those families directly affected, but on the wider community of my constituency and beyond, which still remembers and is in the process of installing a permanent memorial to the loss of life in that tragedy.
The pilot was acquitted. I make no comment about that, other than to say that those families sat through the trial with great dignity—I joined them at the beginning and end—listening to the lurid details of exactly what happened and watching the footage taken by people’s mobile phones of the plane coming down. They sat through that trial with great dignity, and they then had to accept a verdict that they did not want and had not expected.
Justice went through its due courses—I make no criticism of that—but it means that the inquest, which had to wait until the trial was completed, is now even more important for those families who wish to try to flush out who was responsible, and whether any parties contributed to that accident in some way. Most importantly, what is being done to try to minimise the likelihood of such an accident happening again in future?
The record of civil aviation shows was virtually unblemished in this country, and there had been no on-the-ground casualties since the Farnborough tragedy in the 1950s. This was a huge and important event that went well beyond its impact on the local community and the families. I pay tribute to the local coroner for West Sussex, Penny Schofield, who has worked tirelessly with the families to try to manage their expectations and to be as sensitive as possible about their continuing grief. What has compounded that grief, however, is the issue of legal aid—I know you want me to come on to that, Mrs Main. Legal aid is the focus of what I am about to say, but I wanted to put it into context, as I am sure you will appreciate.
The inquest is likely to happen in the autumn, more than four years since the tragedy took place. At last count there will be at least 19 interested parties, including a number of public bodies such as Sussex police, the Civil Aviation Authority, the Air Accidents Investigation Branch, and the Health and Safety Executive, which will have legal representation paid for out of the public purse. Until recently—this has still not been confirmed—the only parties whose legal representation at that inquest will not be paid for will be the families of the 11 victims. Arguably, therefore, the people who are most important and have the greatest interest in those proceedings will have no legal representation at the inquest. That is a travesty of justice, and I once secured a debate explicitly on that subject. I have also spoken to the Minister about the issue, and raised it at Prime Minister’s questions. I have worked with the families and their lawyers, but the system is not working.
In 2017 there was a bid to the Legal Aid Agency and the exceptional cases fund to get legal representation paid for during the inquest, but that was turned down on the basis that somehow it was not within the scope of the ECF and did not represent the wider public interest. That is extraordinary because what I learned during this process is that civilian air shows have the second largest public audience of any activity in this country. There is a huge wider public interest, given the many hundreds of air shows that happen up and down the country each year.
The AAIB’s report was published in March 2017 and stated that
“the parties involved in the planning, conduct and regulatory oversight of the flying display did not have formal safety management systems in place to identify and manage the hazards and risks. There was a lack of clarity about who owned which risk and who was responsible for the safety of the flying display…Controls intended to protect the public from the hazards of displaying aircraft were ineffective”.
It added that there was a valid, proper and serious legal argument that the CAA failed as a regulator in properly implementing the safety recommendations made over six years by the AAIB after a previous fatal Hawker crash. If that does not represent a wider public interest, I do not know what does.
The coroner spoke in support of ensuring that legal aid is available to pay for legal representation for the families when the case is put in front of her at the inquest. She said:
“This is a highly complicated case. It involves areas of aviation law which are complex and technical in nature. Families will struggle to participate in the Inquest in any meaningful way without the assistance of legal representation. The Inquest will engage a number of complex legal issues including article 2 of the European Convention on Human Rights. It is further complicated by the fact that I will be sitting with a Jury. If the families are not represented it is likely that the Inquest, which is already likely to last up to 8 weeks, will take considerably longer”.
Those are the words of the coroner, who says not only that it is unfair for the families not to have legal representation when all those public bodies do, but that it will be difficult for them to participate and to assimilate the proceedings of the inquest properly without legal experts to put it to them, and that it could end up costing more.
If we provide a legal expert to represent all the families as a whole, it will make proceedings more efficient, but if all the families look to have legal representation, or even to represent themselves, it will spin out the inquest and cost the public purse more. Not making sure that legal aid is available for those families is an entirely false economy. That was the coroner speaking about the inquest that will come in front of her. The lawyers acting for the families have also produced papers that show how essential it is for family members to have legal representation at that inquest, which must be provided by the public purse.
The decision by the Legal Aid Agency not to permit funding under the exceptional case funding provisions, which were introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, is patently wrong and unjust. Exceptional case funding is available for categories of law that are not in scope for legal aid, and where failure to provide legal services would be in breach of an individual’s rights within the meaning of the Human Rights Act 1998, or other enforceable EU rights relating to the provision of local legal services.
Inquests have never, however, fallen within the main body of legal aid provision. Legal aid for inquests is available only at the discretion of the Legal Aid Agency under the exceptional case funding provisions introduced by the LASPO Act. This is just the sort of case that was envisaged when setting up the fund in the original Act, so it is nothing to do with cuts in legal aid funding, as some have tried to claim, but is about the provisions in the legislation apparently not working.
The Law Society supports the application and strongly believes that bereaved families should have access to legal representation where possible. It says that the definition of exceptional case funding does not provide an adequate safety net for inquests. Applications for exceptional funding are highly complex and time consuming, and require applicants to have an understanding of human rights law, and, in the case of inquests, to show that there is an article 2 right to life issue or a wider public interest in legal aid being granted. Even when one of those triggers is present, the Legal Aid Agency guidance suggests that the assumption should still be that the bereaved family does not need representation because the process is inquisitorial and led by the coroner, rather than adversarial, but the Law Society challenges how far a bereaved family can be expected to engage effectively with a legal process that relates to the death of a loved one.
I pay tribute to the legal firm Stewarts Law, which is providing a lot of support to the families, largely pro bono. It has challenged the ruling. Unofficially, we are optimistic that legal aid funding may be available when the inquest comes around, but the families should not have had to fight for it. It should have been there as a matter of course—as was intended in the original 2012 Act. The inequality of arms is inequitable and could undermine the inquest’s ability to serve the public interest by failing to protect the rights of the families under ECHR article 2, and there is clearly a wider public interest.
I welcome the Government review of the LASPO Act, which the Minister recently published, but it does not make the future of exceptional case funding clear. The Minister might wish to comment on this when she winds up, but in response to the review we need to look at this further and in more detail to make sure that when tragedies such as the Shoreham air show disaster happen, and in the many applications that we have heard about when there is a multiple or single loss of life, the system automatically swings in to support the families, rather than putting yet further hurdles in the way of their securing justice and access to the truth, which only exacerbates their trauma, tragedy and grief. We surely owe it to people who have been unfortunate enough to suffer such loss to do everything to support them and not put obstacles in their way.
It is a pleasure to serve under your chairmanship, Mrs Main. I congratulate my hon. Friend the Member for Barnsley East (Stephanie Peacock) on securing this incredibly important debate. As she has said, access to justice is a fundamental issue. Inquests where families are properly legally represented are important not only for the families’ sakes, but because they perform a wider public service to ensure that lessons are learnt so that things change for other people and so that lives may be saved in future. That is achieved by ventilating the issues in public and putting those potentially responsible for the deaths under proper scrutiny.
If the families are not fully involved to press to ensure that such lessons are learnt, an inquest is far less likely to result in the wider reform and lesson-learning from which we all benefit. It is naive to expect that an inquest in which the family is not legally represented, but in which the agencies of the state are fully represented, will approach an investigation into a death with a genuine desire to uncover failings. On the contrary, state agencies approach inquests with the express objective of, at best, damage limitation and, at worst, to undermine and downplay the concerns of families. I urge the Minister to look at the submission made by Liberty on the review of legal aid eligibility and the exchange that took place between counsel for Surrey police and the father of one of those who died at Deepcut barracks to see probably one of the worst, most callous and distressing lines of questioning imaginable. Although there was legal representation on that occasion, it is concerning to think that a family member could be faced with such cross-examination without any support at all.
I mention Deepcut because in 2002 one of my constituents, Yvonne Heath, tragically lost her son, James Collinson, to gunshot wounds there. She is among four families who have been looking for answers ever since. The other three families have had or are in the middle of inquests, and there is no doubt that it is in the public interest for there to be one into James’s death as well. I understand that the other families have all had to face what has been described to me as a tortuous and intrusive process just to get legal aid granted. It should be absolutely self-evident that the families need representation at the inquests, so I put the Minister on notice that should my constituent face similar obstacles to obtaining legal aid to the previous families, she can expect regular representations from me until the right thing is done.
I have no doubt about the value that representation can provide at an inquest. I have previously spoken in a debate here about the sad case of Ronald Volante, whose daughter, Rita Cuthell, is a constituent of mine. Ronald died in tragic circumstances when an ambulance call made via a community alarm service led to his call not receiving the priority needed. When the ambulance turned up two hours later, it was too late. We had various meetings following that debate and improvements have been made to procedures, but one area where there has not been any change relates to the experience that my constituent had at the inquest. There is no doubt that she would have benefited enormously from legal representation. I know how distressing and bewildering it was, and how she did not feel that the process gave her the answers that she needed.
If the Minister needs any more persuasion on the importance of the issue, there are many examples of how improvements were made and lessons learned that would not have happened but for the involvement of legally aided, represented families cross-examining witnesses and pressing for change. Such examples include the inquest into the death of Corporal Anne-Marie Ellement, who died after reporting rape and bullying in the Army. The inquest led to recommendations that a special kind of victim support be made available to soldiers who complain of sexual assault against other soldiers, as well as improvements in mental health training and procedures. It also led to soldiers being given information about non-military sources of support and help in the aftermath of sexual assault.
The inquest into the death of Sean Benton, who died at Deepcut in 1995, finally revealed the true extent of the abuses and assaults that trainees had suffered at the camp and has led the police to open a criminal investigation. That would not have happened had the family not been legally represented to press for it. The inquest also led to the Army’s undertaking to the coroner that it would ensure that in future all trainee soldiers would be informed that if they were the victim of a criminal offence they could approach the civilian, as opposed to just the military, police. That happened only as a consequence of the family pressing for it at the inquest. I doubt whether it would have happened had they not been legally represented.
A cursory glance at the relevant pages of summaries of inquest findings demonstrates the enormous potential of inquests to identify and learn from failings when people have died where there is state involvement. For example, a jury found that failings in the immigration detention centre system had contributed to the killing of Tarek Chowdhury, and another inquest found serious failures at Sodexo-run HM Prison Peterborough, which contributed to the death of a prisoner, Annabella Landsberg. An inquest found that failings by South West London and St George’s Mental Health Trust had caused the death of Charlotte Ball. Finally, an inquest found there was neglect involved in the death of 18-year-old Connor Sparrowhawk, which resulted in the coroner making various formal recommendations.
In all those cases the families were legally represented, which demonstrates the enormous public interest and value in ensuring that lessons are learned from the most tragic cases. That can be achieved only if families are represented on an equal footing against state bodies. It is a basic tenet of justice that everyone is equal before the law. When well resourced public bodies are legally represented at inquests it is only right that the bereaved families seeking answers should be represented as well.
It is a pleasure to be here under your chairmanship this afternoon, Mrs Main.
To be fair to the Minister, as I always try to be, the issue is not a new one, and has not appeared on her watch. I remember appearing at inquests more than 20 years ago when lack of representation for families, including in death in custody cases, meant that Inquest—led then, I think, as now, by the admirable Deborah Coles—was going around finding pro bono lawyers to act for families.
I do not entirely agree with the hon. Member for Banbury (Victoria Prentis) about lack of need, and indeed the Government’s report includes something about families receiving legal aid, and being represented. Not all coroners treat families well in those situations, not all lawyers acting for state agents behave well, and not all witnesses tell the truth, particularly when they may be found negligent, or even culpable of causing death.
I share the concern of my hon. Friend the Member for Cardiff Central (Jo Stevens) about the Government’s report, that the process was not entirely right. The fact that it came out with the rest of the LASPO review meant that it got rather lost in all that. It shares some of the faults of the LASPO review in that the facts are well marshalled but do not appear to bear out the conclusions. In particular, the report states that
“a number of stakeholders pointed out that it should not be assumed that in cases where the state has legal representation, representation for the family is necessarily required nor that it enhances the results of the coroner’s investigation. They suggested that the addition of further lawyers might actually hinder the process, by making the process more adversarial and legally complex.”
The Government hide behind other “stakeholders”, whoever they are, but that is a rather cynical way of dismissing families’ concerns. How else, other than by the provision of legal aid—because pro bono cannot carry the weight of inquests in its entirety, although lawyers do a good job—are we to deal with complex medical and legal issues, with coronial rules that are not straightforward and are unique in the way they work, as well as securing evidence, preparing cases and challenging witnesses? As an analogy, public family law cases are one of the few areas where there is still representation for families, because it is perceived that the issues are crucial and the state has a lot of power in those cases. I do not see that inquests are different.
The case of Molly Russell was mentioned. I am not going to deal with the facts of that case, but nevertheless it is true that legal aid was refused on the basis that the matter is not of “wider public interest” and because of the means test. The matter was being appealed, but then the Legal Aid Agency just changed its mind, which shows rather faulty logic. I have been involved in a number of cases, including the tragic case of my constituent Natasha Ednan-Laperouse, who died on an airline flight because of an allergen in a Pret a Manger sandwich that she was eating. That led to a prevention of future deaths report that made substantial recommendations to the Department for Environment, Food and Rural Affairs and other Government agencies.
I could mention, also—I wish I had more time—some of the cases involving the Whirlpool company. I have had incidents in my constituency, but in particular I want to talk about the death of Douglas McTavish and Bernard Hender in Llanrwst. That was caused by an electrical fault in a Hotpoint tumble dryer, which caused the fire which led to their death. In all these cases, there is a need for proper representation in the public interest, even though those involved are not state actors.
Why should there be legal aid in such cases? In many cases, the Government should have been aware of the risks, but took no action—whether that involved the Office for Product Safety and Standards, the Food Standards Agency or the internet and internet regulation, which are very topical at the moment. The Minister cannot get away with the report that has been done so far. These matters need to be properly looked at again.
I hope that my constituent’s experience can help to illuminate some of the learned arguments that have been made today. Families can provide important inputs to help a coroner reach correct findings and make recommendations to help state bodies to improve their systems and avoid more tragic cases.
My constituent, Angela, is a senior manager in social care. She has huge experience of local care systems. Her son, Adrian, suffered from mental health issues all his adult life. In 2016, he was taken into the care of a mental health hospital but discharged a few weeks later into the care of the community mental health team. He was told by that team that he would be discharged from any support just two weeks after his discharge from the hospital. He was distraught about that. His mother, Angela, was frantically seeking some support for her son on the Friday before he took his life. She had obviously been involved with him throughout his life. Having not found support on the Friday—
Adrian took some drugs and alcohol on 10 December. He was found by police at 2.30 in the morning and taken to the local A&E. However, the police left, and he was allowed to walk out without being triaged. He later lost consciousness at a friend’s home and passed away.
The inquest with the coroner involved the mental health trust, the hospital trust and the police. It was to take place over an eight-day period—although that was reduced to four days—with barristers representing the three bodies, all with their legal representation funded by the state. When I first met Angela, before the inquest took place, she had been told she would not qualify for legal aid. Although she was desperate to use her personal and professional experience to make changes to the systems to make sure no other parent had to go through this, she was not sure she would be able to participate fully in the inquest, due to a lack of representation.
The coroner, when considering applying article 2 of the Human Rights Act and using a jury, finally decided that the family should have legal representation, but that was just three days before the inquest. Angela had to go through very detailed financial statements, which was very personally intrusive at the time she was grieving, a year after she had buried her son.
In the end, she was able to participate with the help of her lawyer, and she pays tribute to the lawyer and the barrister. With three organisations all arguing about who was culpable in the circumstances, Angela felt it was very important not only that she was able to be involved and put the facts of the matter straight, but that she could make sure that recommendations were made.
I quote Angela’s comments on the coroner’s report:
“Following Adrian’s death, the burning question we asked ourselves was ‘did we do everything we could to gain support for him? Did we call enough people or shout loud enough to be heard? Was there more we could have done?’. Given the evidence that was heard through Adrian’s inquest, it became clear that as a family we had not failed our son, although this may not be said for some of the professionals involved in his care. We will miss Adrian for the rest of our lives, but hope that changes will be made in the near future to avoid further deaths following the recommendations made by the coroner”.
Families in this situation have just one opportunity to make a difference; that opportunity is at the inquest, where, as some learned Members have said, incredibly difficult facts may be put to them about the death of their loved one. It is not only important that families are able to grieve, have their voices heard and find the truth, but that we as a society and our state agencies can learn from their experience and their support and make recommendations so that no family has to go through this again.
It is an honour to serve under your chairship, Mrs Main. I congratulate my hon. Friend the Member for Barnsley East (Stephanie Peacock) on having secured this debate.
Families affected by a state-related death are already going through some of the most difficult moments of their lives, but if they cannot afford legal representation, the process of finding out what happened and why is made harder still. It is almost impossible for me to put into words the pain, fear and frustration that is in these human stories. The stories we have heard about their constituents from my hon. Friends the Members for Ellesmere Port and Neston (Justin Madders), for High Peak (Ruth George) and for Hammersmith (Andy Slaughter) and from the hon. Member for Strangford (Jim Shannon) are the most compelling arguments for change that anyone could make.
Reading through the testimonies that bereaved families have provided to the Government’s recent review highlights the gaping injustice at the heart of our justice system, which must be addressed. My hon. Friend the Member for Barnsley East made an excellent speech, and it is worth reading part of one of the comments from a family member once more:
“We had to do everything ourselves. We had no lawyer at the inquest. Those three weeks were the most terrifying thing I’ve ever done in my life”.
“Families are often left in the dark, trying to sort out numerous matters associated with a loved one dying whilst under the protection of the state, while trying to make sense of what has happened both emotionally and legally. Having access to funded legal representation is paramount for justice.”
Today’s debate is about the fundamental values and principles of our justice system, which should never leave people feeling afraid and helpless when seeking truth and justice for their loved ones. My hon. Friend the Member for St Helens South and Whiston (Ms Rimmer) spoke particularly powerfully about that point: is our justice system fair if state bodies are legally represented at inquests, and victims’ families are not?
The Government’s recent review states that about 30,000 cases per year result in an inquest. Of those, about 500 are related to deaths in custody or other forms of state detention, whether that is police, prison or immigration detention or detention under the Mental Health Act. Will the Minister confirm what the year-on-year rise is in litigants in person at such inquests? In such cases, the bereaved families deserve state support in their pursuit of the truth, but proper legal representation is also about preventing others from suffering, by identifying mistakes and ensuring future deaths are prevented. It is an urgent and ongoing issue for everyone in this country and should be treated as such, as my hon. Friend the Member for Ellesmere Port and Neston stated in his contribution.
The need for better state-funded legal support for bereaved families at inquests has been a central recommendation of several major reviews in recent years, including Bishop James Jones’s powerful Hillsborough report; Dame Elish Angiolini’s independent review of deaths in police custody, which was initiated by the Prime Minister herself; the independent review of the Mental Health Act; and Baroness Corston’s review of vulnerable women in the justice system. All of those reviews called for a major improvement to funding for bereaved families at inquests, in order to prevent further miscarriages of justice of the sort that shocked us all in the cases that have been mentioned. When such heavyweight reports about profound flaws in our justice system, often commissioned by the Government, call for better legal representation, it would be astonishing if the Government did not do the decent thing and adhere to their recommendations.
However, the Government’s review into legal aid for inquests just let bereaved families down again. The charity Inquest, which works with bereaved people, lawyers and support agencies, providing expertise on state-related deaths and their investigation, labelled the Government’s inaction
“a betrayal of those who invested in this review in the hope of securing meaningful change”.
Having listened to the story about the constituent of my hon. Friend the Member for High Peak, it is hard to conclude anything different. If the Government do not listen to me, or even to the charity sector, can the Minister give me one good reason why they have chosen to ignore the powerful, united voices of Bishop James, Baroness Corston and Dame Angiolini?
There are families trying desperately to afford the crippling costs of legal fees they never expected to need to pay. We are seeing increasing numbers of families whose loved ones were killed in horrific accidents crowdfunding vital legal help, and the ongoing failure of the legal aid system to treat even the most determined families fairly.
Last year—Mrs Main, this is all in the public domain—the families of five men killed when a wall collapsed at a recycling plant were denied legal aid for the inquest. The men were crushed to death under a pile of concrete, bricks and scrap metal in 2016. Their families, who are from Gambia and Senegal, applied for funding for a lawyer to represent them at the inquest, to establish the circumstances around the deaths, potentially leading to compensation from the employers. Despite meeting the means test and not speaking English, they were turned down for legal aid. The Health and Safety Executive and the recycling company were both to be represented by lawyers, so the families would have been at a significant disadvantage if they had been left without one. Could they represent themselves in court, with no English and no knowledge of the legal system? Of course not. They resorted to crowdfunding their legal fees—reduced to shaking a modern version of the collection tin in pursuit of their basic rights to truth and justice. They managed to raise over £3,000 to fund their costs before their appeal was finally heard and legal aid was granted—after the inquest had already begun.
That completely unnecessary stress during such a traumatising process can be blamed only on a totally dysfunctional system, which should obviously have known that the families were eligible, given that they met the means-testing criteria and spoke no English. This protracted process cannot possibly have had any advantages for the public purse, but it will have cost bereaved families a great deal in emotional stress. It is that process that was raised by the hon. Member for Banbury (Victoria Prentis), and also by the hon. Member for East Worthing and Shoreham (Tim Loughton), who spoke about the 11 men who lost their lives and the inadequacy of exceptional case funding.
Will the Minister tell me how common she believes crowdfunding is for inquests? Following on from the comments made by my hon. Friend the Member for Barnsley East regarding the Government’s inadequate consultation, will the Government publish a list of respondents to their review and a summary report of the responses? Will they also publish the findings of their survey of coroners and the coroners support service?
A Labour Government would commit to providing proper legal support to those who have been the victims of deaths in custody, with legal aid for representation at inquests. Truth is the first step towards justice, and quality legal support is a key first step towards the truth.
Although she did not make a speech, I should just mention my hon. Friend the Member for Cardiff Central (Jo Stevens). I always learn things from her when she makes an intervention, because she brings so much experience to these issues.
Unless the Government will commit, as Labour has, to giving automatic, non-means-tested legal aid funding to families to allow them to seek specialist legal representation following a state-related death, I suspect bereaved families and those who support them through the inquest process will continue to feel nothing towards this Government but a deep sense of betrayal and abandonment.
It is a pleasure to serve under your chairmanship, Mrs Main. I congratulate the hon. Member for Barnsley East (Stephanie Peacock) on securing a debate on this important subject. She spoke passionately about the issue, and I am pleased to have the opportunity to respond.
Last Friday I had the opportunity to visit Westminster coroner’s court to watch an inquest. I saw first hand the professionalism of the coroner and the importance of the inquest process to the bereaved family. Before turning to the individual points that have been made in this debate, I would like to set out some facts in relation to the inquest process, the purpose of an inquest and what we have done to improve that process. I would also like to mention some of the types of cases that inquests deal with, which we have heard about throughout the debate, and to respond to the points that have been made in relation to legal aid. I would like to do that, because it is important to understand the process and how legal aid fits into it.
The starting point is, what is the purpose of an inquest? An inquest is an investigation by a coroner into a death reported to them, and it should answer four questions: what is the identity of the deceased, what is the place of death, what is the time of death, and how did the deceased person come to his or her death? An inquest is a public court hearing to determine those matters.
As my hon. Friend the Member for Banbury (Victoria Prentis) said—as we heard, she has considerable experience of these issues—an inquest is meant to be an inquisitorial process, not an adversarial one. Bereaved families have a special status in any inquest. They do not have to make legal arguments, but they can question witnesses, or ask coroners to question them on their behalf. Inquests are essentially about fact finding.
At the inquest I saw on Friday, a man had either taken his own life or died from natural causes. The family were given every opportunity to question the toxicologist and the doctor present. There was no legal representation on either side, and at the end of the inquest the father of the deceased thanked the coroner for her findings and commented that she could not have done much more.
As with all legal processes, we can make room for improvement. The hon. Member for Hammersmith (Andy Slaughter) suggested that not everyone who appears at an inquest—for example, coroners or legal representatives —always behaves as they should. We have sought to improve the experience of bereaved families who go through this process at such a tragic time, and I wish to highlight some of the changes that we have made or are making.
First, we are in the process of revising the information we give families on coronial processes, to ensure that it is tailored to them. We have re-established a stakeholder forum to engage with other Departments and external stakeholders and to consider what more can be done to ensure that the process is inquisitorial, as it should be. Our reforms allow bereaved families access to most documents seen by the court, and they should expect the coroner’s office to update them at regular intervals and explain each stage of the process. We have also introduced the role of Chief Coroner, who provides leadership, guidance and support to coroners, and we have engaged with him on training for coroners and their officers, which will be delivered in 2019-20.
As we have heard, many types of inquest come before coroners. My hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) mentioned stillbirths and the tragedy in his constituency. My hon. Friend the Member for Banbury spoke of her experience in a number of matters, and the hon. Member for Ellesmere Port and Neston (Justin Madders) mentioned some terrible stories. The hon. Member for High Peak (Ruth George) told us of the experience of someone in her constituency. At the inquest last week, a number of cases were opened at the start of the hearing. They involved men who had died—some had taken their own lives, some cases involved drugs, and some were in foreign countries.
None of those cases involved the state. Other cases do involve the state, however, and there is a question over whether the state or its agents were responsible. Those are known as article 2 inquest cases, in reference to the state duty to protect life under article 2 of the European convention on human rights. In those cases an enhanced investigation must decide not only who died, when, where and how, but the broader circumstances of their death.
As hon. Members have suggested, it is likely in such circumstances that the state will be represented. Bereaved families may require representation, and legal aid for that may be available through the exceptional case funding scheme—my hon. Friend the Member for East Worthing and Shoreham mentioned that, as did the hon. Member for Ashfield (Gloria De Piero).
Legal aid for representation through the ECF scheme may be provided where failure to provide representation would amount to, or risk, a breach of article 2, or where there is a wider public interest. In the last two years, 339 applications for publicly funded representation at an inquest were granted, and we have taken a number of measures to ensure that ECF funding is more easily granted.
As the hon. Member for Strangford (Jim Shannon) mentioned, most people who apply for legal aid generally in civil law have to satisfy a means and merits threshold. That is to ensure that public money is well spent. Those who do not merit legal aid should not get it, and those who can afford to pay themselves should do so. We have recently made it easier in two ways to obtain legal aid. First, we have made changes to ensure that there is a presumption that the article 2 threshold is satisfied in cases where there is a death in state custody. Secondly, we have relaxed the means test.
The hon. Member for Leeds North West (Alex Sobel) mentioned the stress of filling in the form at a difficult time. In June, we updated the Lord Chancellor’s guidance so that the Legal Aid Agency can disregard the means test and take into account the stress that the family are going through, which may be exacerbated by the legal aid process. Furthermore, only the individual applicant’s financial means will be tested, and not the means of family members, which will help to ease the burden of the application process.
As the hon. Members for Barnsley East and for Enfield, Southgate (Bambos Charalambous) mentioned, the process is complicated. In February, we identified that we will do a wider review of legal aid. We have committed to simplifying the exceptional case funding forms and guidance to ensure that applying for legal aid is as simple as possible. We will put more money into resourcing that to ensure that funding decisions by the Legal Aid Agency are made in as timely a manner as possible.
The Minister has described how there is some process for people to apply for legal aid, but in my constituent’s case the decision was made only three days before the inquest. She had to attend a pre-inquest trial with three barristers, which was incredibly upsetting. She also had to go through her personal finances, including her car finance, to make the application again—on top of what was happening with the inquest and the anniversary of her son’s death. Does the Minister agree that that process would be assisted if there was automatic legal aid for victims’ families?
I hope that I have identified a number of measures that we are putting in place that may help the hon. Lady’s constituent. We are making sure that the process is easier. The Legal Aid Agency is looking at linking up with banks and Her Majesty’s Revenue and Customs, not just in relation to inquests but across the board, to automatically see whether people satisfy the means test, without them having to fill in a whole load of forms. I appreciate that, obviously, automatic non-means-tested legal aid would be much easier for everybody, but we are taking steps to make things easier within the ambit of having a means test.
In February, we announced another measure that may help the hon. Lady’s constituent, which is that we have agreed to backdate the legal help waiver. The director of legal aid casework has the discretion to backdate funding for ECF representation to the date that the ECF application was made, but he did not have the discretion to backdate funding for legal help, even when an application for the means-test assessment to be waived had been successful. We have committed to changing that by the end of the year.
The hon. Member for St Helens South and Whiston (Ms Rimmer) mentioned the threshold for legal aid, as did several other hon. Members. Our action plan sets out a broad, across-the-board review of the means-test threshold for legal aid, which will include the means test for inquests. We have committed to looking at the threshold at which people become eligible for legal aid across the board. We have also committed to launching a campaign to raise awareness about the availability of legal support, including legal aid, which will ensure that all bereaved families are aware of their rights to claim ECF.
I was disappointed by the cynical suggestion of several hon. Members, including the hon. Members for Barnsley East and for Hammersmith, that the timescale of the review that we conducted was somehow inappropriate. The hon. Member for Hammersmith identified that that review ran alongside the legal aid review, and the timing was dictated by the legal aid review, which we promised to publish by the end of the year, as he is aware.
The Minister has not explained why the consultation lasted for only six weeks rather than 12. Is she disappointed that only 48 out of the 89 coroner areas in England and Wales responded to the survey? They are obviously not very interested in the review either.
We wanted to publish the review at the same time as the legal aid review. In addition, we have committed to look subsequently at a key part that will affect inquests in relation to the threshold, so we are now undertaking a review of the threshold. All the comments made about inquests will be carried forward to that review, which is ongoing.
Some hon. Members mentioned families’ input into the review. Some 20 families provided evidence, and we held a roundtable event for bereaved families. The hon. Member for St Helens South and Whiston and others mentioned funding and an inequality of arms, which I will touch on. We say in our report that we are interested in looking at that area more fully. There are a variety of ways to tackle funding, all of which involve working with other Departments that may be represented in a hearing involving an article 2 case. It might involve reminding those that take part in the process on behalf of the Government of their duty of candour. It might involve asking Government Departments to look at their own instruction of lawyers and whether they need the number they instruct. It might also involve looking into further options for funding legal support at inquests where the state has state-funded representation. We will look at all those issues and will work closely with other Government Departments.
In conclusion, very important issues have been raised about the inquest process. It is important that an inquest is sensitive and meets the needs of the bereaved. Legal aid and the process in relation to state deaths are an important issue, as we have heard in the debate today, but legal aid is only one part of the jigsaw, and we must look at the whole system more widely if we are to deliver access to justice.
I thank the hon. Member for Barnsley East for securing the debate on legal aid for inquests. I thank all hon. Members who have taken part in the debate, and I thank you, Mrs Main, for chairing it.
I thank hon. Members for their powerful contributions. We have heard so many examples of why change is needed, and I want to briefly mention a few. The hon. Member for East Worthing and Shoreham (Tim Loughton) mentioned a travesty of justice and the families of the victims of the terrible Shoreham air show crash. He mentioned that they will not have legal representation and talked about how they have been turned down for legal aid, showing clearly how the system is broken. My hon. Friend the Member for Ellesmere Port and Neston (Justin Madders) talked about the tortuous process of getting legal aid. A tragic case was highlighted by my hon. Friend the Member for High Peak (Ruth George). In seeking justice and truth, bereaved families want to help other families and prevent future deaths.
The hon. Member for Banbury (Victoria Prentis) remarked on the political nature of my speech. I gently say to her that decisions about public expenditure are inherently political. We have been given no answer on, and there is no excuse for, the huge disparity in funding between the Government and victims. Labour Members make no apology for calling for equality and justice. It is all very well to say that inquests are inquisitorial in nature, but time and again that is simply not the experience of families. The system is not equal.
I thank the Minister for her comments, but they simply do not go far enough. She talked about the merits of means, but this issue is not comparable to other legal aid applications. Families do not choose to be part of the process. She has given no real explanation for the disappointing consultation.
I will conclude by quoting Inquest, which states:
“Specialist legal representation and input from families is crucial to ensuring robust post-death investigations and inquests. Inquests must shine a light on any state failings”.
I implore the Minister: please listen to Inquest.
Motion lapsed (Standing Order No. 10(6)).