Legal Aid: Birmingham Pub Bombings
I beg to move,
That this House has considered legal aid for families of the victims of the Birmingham pub bombings.
It is a pleasure to serve under your chairmanship, Mr Hollobone. This debate follows on from an Adjournment debate in October 2016 led by my hon. Friend the Member for Birmingham, Yardley (Jess Phillips). What I am going to say has the support of every single Birmingham MP, irrespective of party, and has wide support across the House, as I think will be demonstrated by the contributions we will hear.
At around 8.20 pm on 21 November 1974, two explosions rocked two pubs in Birmingham: the Mulberry Bush and the Tavern in the Town. Twenty-one people were killed and some 222 people were injured. A third bomb placed at Barclays bank on Hagley Road was defused the same evening. We know that six men were jailed for that atrocity, and we now know that that was a miscarriage of justice. It took years for that to be addressed and for those six innocent men to be finally released.
There was, however, to be no release for the families of the 21 who died and the hundreds who were left with injuries and the trauma of that night in November 1974, because nobody has been brought to justice for those 21 murders. There remain big unanswered questions about what exactly happened that night, including the circumstances surrounding the plantings of the bombs, if and how warnings were given and how the police reacted that night and subsequently. Some of those family members are watching our debate, and I am sure all Members would wish to join me in welcoming them to this place and in paying tribute to their tenacity over so many years in trying to get the answers they deserve.
For years, those families have had to overcome hurdle after hurdle in pursuit of justice and to get answers. They had to fight to get the inquest into the pub bombings reopened in the first place. They then had to fight to be granted legal aid to be legally represented at that inquest. Now, having eventually won those battles, they have once again been denied legal aid for a Court of Appeal hearing on the rules governing that self-same inquest. Why is that? Last year, the Chief Coroner, Sir Peter Thornton QC, ruled that the people suspected of carrying out the pub bombings cannot be identified at the inquest. The families disagreed and took their case to the High Court. They won, and the coroner was directed to review the ruling he had made on the identification of suspects. We now know that the coroner has responded by applying for leave to take the case to the Court of Appeal, as he has every right to do. The fact that different conclusions were reached by the High Court and the coroner himself—he is a senior QC—underlines the difficult and complex legal issues that the case raises.
Today’s debate is emphatically not about taking sides on whether suspects should be identified at the inquest—that is properly a matter that should be decided by the courts—but about whether both sides should have an equal opportunity to put their case to the court. However, as things stand, that equality is missing in practice, because although public funds will rightly be available to present the coroner’s appeal against the High Court’s judgement, the families have been told that they have to pay for their own legal representation to defend the High Court’s decision. That is the disparity I am asking the Minister to address today.
The disparity was not addressed when the case was at the High Court. The families were refused legal aid at that stage and were only able to fight and win their case there by the generosity that ordinary citizens showed in response to their crowdfunding appeal. The families should not have to go through that again at the Court of Appeal. It is in the public interest that all the arguments for and against the identification of suspects at the inquest are heard by the Court of Appeal so that it can make its decision on the merits of the case with confidence that a shortage of resource has not hampered either side from putting forward their cases.
It is not only Members and the families who are asking for the situation to be rectified. The coroner himself has said that public funding should be made available to the families so that legal representation can be secured for them to contest the case he is taking to the Court of Appeal.
I am grateful to the hon. Gentleman for securing this debate so that we can show our concern as MPs for the families, who still have no closure. The early-day motion tabled by the hon. Member for Birmingham, Yardley (Jess Phillips) has garnered, as far as I know, 21 signatures across the House. It emphasises that the Chief Coroner has called not once, but twice—and recently—for legal aid to be provided. While these events occurred a long time ago, it is still a live issue, and the Chief Coroner, whom we must respect in this matter, has called for legal aid to be granted.
The right hon. Lady is absolutely right. The early-day motion tabled by my hon. Friend the Member for Birmingham, Yardley—I am pleased to welcome her to the debate—is getting wide support across the House, irrespective of party. This is not a party matter; it is a matter of justice and parity. As the right hon. Member for Meriden (Dame Caroline Spelman) said, the fact that the coroner supports public funding being made available for the families of the pub bombing victims underlines that he understands that this is a question of justice. We are asking for Ministers to have that same level of understanding.
The Legal Aid Agency is insisting that existing regulations prevent it from providing assistance, even though the families were eventually granted legal aid for the inquest. One reason the LAA put forward is that the families should instruct lawyers on a no-win, no-fee basis. That argument is undermined by the fact that a protective costs order was already accepted by the High Court and would quite possibly be accepted by the Court of Appeal. The avenue of getting representation on a no-win, no-fee basis is simply unlikely to be available to the families.
However, it seems that the Legal Aid Agency’s main reason for refusing legal aid this time is because the collective capital of the families provides
“potential source of funding from which it would be reasonable to fund the case”.
Indeed, in a letter to one of the law firms representing the families, the Legal Aid Agency went so far as to suggest that the possibility of further crowdfunding appeal could suggest that the families do not need legal aid to present their case. I find that suggestion astonishing. It is in the public interest for this case to be heard; it should not be dependent on how successful the families are in passing the hat around. The bottom line, however, is that in a letter to me and other Birmingham Members, the Legal Aid Agency insists that it has no discretion to come to any decision other than to refuse legal aid.
From my reading of the rules governing legal aid, I do not know whether the Legal Aid Agency has no discretion here. It is not clear how the refusal of legal aid for the Court of Appeal hearing logically squares with the fact that families finally won legal aid for their representation at the inquest. As inconsistent as it may appear, if for whatever reason there is no discretion by which the families can be granted legal aid, my request to the Minister is for the Government to step up to the plate for justice by directly authorising that public funding be made available outside the regular legal aid framework.
I commend the hon. Gentleman for the way in which he introduced the debate. He is right that this is a cross-party, cross-nation issue. One of the premises of British law is that justice must be seen to be done. Is he as perplexed as I am by what has happened in this case? The British public are aghast, wondering why other groups and individuals appear to find it so easy to get legal aid, while a group of victims who have gone through the wringer for many decades cannot access justice, and are therefore having justice denied them.
The hon. Gentleman is right that people in Birmingham, and people throughout the west midlands and beyond, are looking at this situation and saying: “If it is the public interest for the case to be tested at the Court of Appeal, how can it be that only one side is being funded to do so?” I am not sure that I agree with him that it is easy for a lot of other people to get legal aid. In fact, the changes to the legal aid system have been a concern for a wide range of people seeking public support in their quests for justice. Certainly in this case, however, it is astonishing that legal aid has been denied.
Ministers know that public funding has sometimes been made available outside the legal aid system. It was rightly made available for the Hillsborough inquests, when legal aid was not available. I therefore ask the Minister: does she agree with the Legal Aid Agency’s contention that it has no discretion at all to grant legal aid for the appeal court hearing? If she does not agree, will she put the Legal Aid Agency right? If she agrees with the Legal Aid Agency, does she also agree with my contention that it is in the public interest for both the coroner and the families to have equal resources to test their cases at the Court of Appeal, and that the Government should therefore make available the public resources to achieve that objective outside the regular legal aid framework?
Beyond the specifics of this case, I refer the Minister to what the then Minister, the right hon. and learned Member for North East Hertfordshire (Sir Oliver Heald), said in response to the Adjournment debate secured by my hon. Friend the Member for Birmingham, Yardley in 2016. He said that
“families in very difficult circumstances with complicated cases have gone unrepresented while public bodies and individuals are represented at a cost to the public. The Ministry of Justice and the Home Office are rightly working collaboratively to consider that issue”
“are looking at the best way forward.”—[Official Report, 26 October 2016; Vol. 616, c. 400-402.]
Furthermore, in October last year the Lord Chancellor issued a written ministerial statement confirming that a post-legislative review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, better known as LASPO, was commencing. Will the Minister please update the House on the progress of that post-legislative review, particularly given that a number of bodies, not least the Law Society, have called for the criteria for providing public funding to be simplified, and for the guidance to the Legal Aid Agency to be amended to widen the scope for funding for representation, particularly of bereaved families?
Irrespective of what progress is or is not being made in those inter-departmental discussions and in the post-legislative review, the issue of how these families’ cases will be funded at the Court of Appeal will not wait. If the system has failed them, and if legal aid has failed them, it is time for the Government to step up to the plate directly and make public funds available some other way. It is simply about fairness and parity. Justice demands no less.
Order. I am obliged to call the first of the Front-Bench spokespeople at no later than 5.7 pm. The guideline limits are five minutes for the Scottish National party, five minutes for Her Majesty’s Opposition, and 10 minutes for the Minister. Mr Burden will then have three minutes to wind up. Until 5.7 pm, the debate is open to Back-Benchers. Two stood to speak, and more may be motivated to stand as the debate goes on, but first I call another Birmingham MP, Jess Phillips.
Thank you very much, Mr Hollobone. I thank my hon. Friend the Member for Birmingham, Northfield (Richard Burden) for a forensic trot-through of the problem that we face. I will not cover the same ground, but I associate myself with everything he said in laying out exactly how long we have been to-ing and fro-ing on this issue.
I feel as if I am on a merry-go-round. I have been on it for only about four or five years, from just before I was elected. I meet with the families regularly. They are in their 40th year of dealing with this issue, and I feel tired of having to bring it up once again. We have won this argument before, and we have been here before. They were refused legal aid at the inquest stage and there was a lot of hullabaloo from many of the same people who are in the Chamber today, from both parties. We won that argument, yet here we are again.
For me, the fundamental problem is inequality of arms. These people are ordinary citizens. It is not okay for the public bodies involved, whether they be police forces, Government Departments, or in this instance the coroner, to have a resource that is simply not available to the party that represents the victims. Not a single one of the families of the 21 people murdered on that night wishes to be in this position. They do not want to be any trouble and to have to constantly make these arguments. They wish, more than any of us, that we were not standing here having this debate. They wish that in a way that most of us in this place will never understand, although unfortunately some Members of the House do have personal experience in that regard. The fact that we are here again, with ordinary citizens feeling as though they were begging the state to allow them to be represented, is a source of deep sadness. I feel a bit tired by this constant battle, although having met the families I know that they are battle-weary but fairly tough.
I want to go over some of the reasons why legal aid, at this stage, has been refused, most recently to my constituent Margaret, who was the mother of one of the victims. Just to big up the women who come from my bit of the world, hon. Members will never meet a woman as tough, steely and certain as this woman. She makes me look like a wallflower.
Yes—you can imagine. As her MP, I know what it is like to sometimes have to disappoint her. The fact is that as my hon. Friend the Member for Birmingham, Northfield outlined, the most recent round of legal aid has been endorsed by the coroner as the only fair way for justice to be served in the appeal process.
The reason given to the families for legal aid not being granted is that, despite the eligibility of one applicant, the other families cumulatively have sufficient resources to fund the legal action. I know these families. They are not rich people. They are ordinary people who live in ordinary houses. They are all extraordinary people in their own way, and in what they have been fighting, but they are not like the people we meet in this building. They are not people with thousands and thousands of pounds in the bank. They are ordinary people who perhaps own ordinary houses.
Are we saying, as the state, that if someone—a normal Joe or Jill—wants to seek justice, they will probably have to sell their house? That if someone’s family is murdered, in order for them to go through the process of getting justice we will take away all their assets? My constituent will also be judged on the assets of her children—we are going to strip away those assets because they want to go through the process. What they want is justice. Taking away their assets is not an acceptable standard for any of us here; I am certain that Government Members do not feel that it is. I wish that I could hold up photos of these people’s homes, so that hon. Members could see what ordinary lives they. They are ordinary Brummies.
The hon. Lady is making a very good point. There is an absurdity to any argument that justice should be means-tested, in the sense that property prices are so significantly different around the country that there is an in-built disadvantage for some parts of the country. I do not know whether the Minister knows what the average property price is in the west midlands, but the average home in the west midlands is sub-£200,000. Most people living in London could only dream of a house at that kind of level—they do not exist anywhere in London—so straight away there is an absurdity to the argument that a person’s principal home should be considered as part of a means test for achieving justice. It just is not right.
It certainly is not. I remember giving the figures on the day when the threshold for inheritance tax was raised to £375,000, when I stood up and told the Minister that, in my constituency, eight people would benefit from that, and they had to be dead. My husband said that that Budget day was a great day to be dead. That gives a bit of an idea of the property prices in the area that I represent and live in.
The second issue that my hon. Friend the Member for Birmingham, Northfield raised was the idea that because the families have previously been successful in raising funds themselves, they could probably lean back on that. To be clear, are we saying that if families, victims or anyone else wants to seek justice, the state currently feels that it should fall to those who can shake a tin best, or perhaps run a fun run? We could dress up as—I don’t know—victims, and do the London Marathon, and see how many people wanted to give us some cash so that we could find out some of the answers that the families have waited decades for. Even for those who do not know the families and do not have personal involvement, that cannot be a standard for our justice system. Crowdfunding and who can write the best tagline on a website and bleed the most hearts should not be the most likely way for people to access justice, going up against a state actor that is paid for by the same people’s taxes—we are the same people.
My hon. Friend will be aware that on 6 November 2014, Nils Muižnieks, the Council of Europe commissioner for human rights, addressed this issue. His ruling, which we signed up to and support, was:
“It is clear that budgetary cuts should not be used as an excuse to hamper the work of those working for justice.”
We as a nation support that. Should we not extend that to this horrendous case?
I could not agree more. There are probably endless quotes from the bishop who did the inquiry into the Hillsborough situation, and we will almost certainly face the exact same arguments when the Grenfell disaster eventually comes before inquiries, courts and inquests. This is not just about the families in Birmingham; it is about a standard of justice. It is a David and Goliath situation, where David is the one paying for Goliath. That cannot be right, yet these families, having already lost family members, are having to do the heavy lifting for the rest of us to have a better system. For that, on behalf of anybody who has ever gone up against a state actor, we owe a debt of gratitude to families such as the Justice for the 21 families and the Hillsborough families, who are doing this on behalf of all of us to make justice better and fairer.
I worry that the Legal Aid Agency is using its powers to make decisions on whether it grants funding based on the merits of a case, and is deciding that it has authority on those merits. A High Court judge has agreed that the review should take place. It is perfectly reasonable that the coroner feels they have the right to appeal against that decision—that is absolutely fine—but it is not acceptable for the Legal Aid Agency to decide on the merits of that case. Are we saying that in the very complicated hierarchy of justice that these ordinary people have had to learn—they could probably sit legal degrees with ease now, these ordinary people with ordinary jobs, who did not know anything about this—the Legal Aid Agency now sits above a High Court judge in deciding which cases have merit? I hope the Minister can answer that question, because I am confused. She is learned; I am not learned—nobody gets to be learned just from being street smart, unfortunately. If only there was a degree in that.
My hon. Friend would be a professor emeritus.
I would be an emeritus professor in street smarts.
I feel that the Legal Aid Agency or the Government will eventually renege on this point. I associate myself with all the requests made by my hon. Friend the Member for Birmingham, Northfield, but we have had to go around the hamster wheel again to ask whether, if the Legal Aid Agency is not the route for families, justice can be served through extra funding that the Government allocate from elsewhere.
My hon. Friend is making a very good point. Most people can remember where they were on the day when this tragedy happened. It is interesting that the Government can find the money when they want to do something, but when ordinary families want to take legal action and get justice, the Government cannot find the money. I always thought it was the Government’s duty to protect people, and one way to do that is through securing justice for them. Does my hon. Friend agree?
Quite. I cannot remember where I was on that day, because I was not yet born, yet it has stayed in the history of the city that I come from and have lived in all my life. If Birmingham were cut, it would bleed still with this unsolved disaster. After years of quite rightly hearing about the miscarriages of justice for those who were convicted of the crimes, the victims in the story have been lost, and it is now time for their story to be told.
I absolutely agree with my hon. Friend—the Government will perfectly easily fund the side that fights against this. I have no doubt that the coroner will have all the resources that are needed. Why can they always find it for one side and not the other? This is not a case of people making vexatious claims that will open the door to everybody being able to make a load of claims against the state really easily. If these families have proved anything, it is that this is no picnic. It is not easy. There is nothing easy about this process, and that suggestion should be disregarded as a reason why what seems to be an austerity measure is affecting them so much.
I finish my remarks by paying a massive tribute to the families in this case. I am often proud to be from Birmingham—in fact, almost daily. These families make me incredibly proud of my city’s resolve in keeping on going.
It is a pleasure to speak in this debate. I congratulate the hon. Member for Birmingham, Northfield (Richard Burden) on bringing this issue to the Chamber. He and the hon. Member for Birmingham, Yardley (Jess Phillips) passionately presented the case of the victims of the Birmingham pub bombs.
I am here today not because I am from Northern Ireland but because, like my hon. Friend the Member for North Antrim (Ian Paisley), I have empathy with and a real understanding of the victims’ families. In my constituency, there are many people in a similar situation, whose lives have been torn apart by evil men. The victims had no sin and no guilt, but were in the wrong place at the wrong time. While the world seeks to brush over the atrocities of the past, and people—at least in New York—seek to rename St Patrick’s day after the unrepentant terrorist Gerry Adams, the families of the 21 people murdered by the Birmingham bombs daily pay the price in sorrow and tears. The hon. Members for Birmingham, Northfield and for Birmingham, Yardley spoke with passion and belief. I am sure everyone in the Public Gallery is proud of them and of all Members who are here to support the case of the victims’ families and make sure it is well made.
The hon. Member for Birmingham, Yardley, in her passionate and compelling speech, told us about the victims of the Hillsborough disaster. Let us be quite clear: we all wanted them to get legal aid, but we also want the families of those who were killed in the Birmingham pub bombs to get it. Those families see single parents where once there were two; mothers at their child’s graveside, against the natural order of things; little girls walking down the aisle without their father; lives half-lived because huge parts have ripped away—all because IRA men decided to make their point by choosing that place at that time. That is my concern, and that is why I am here today. When the hon. Lady secured her Adjournment debate, I went along to support her, not because I intervene in them all but because I agree wholeheartedly with what she was trying to do. I am here to do the same thing again.
Those families seeking justice should not have to fight so hard in this day and age. When I think of the public money that was spent on the Bloody Sunday inquiry into an incident in which 13 people died—I am in no way trivialising those families’ heartache—and see a bill in excess of £195 million, I am flabbergasted. I cannot understand the rationale for not allowing the families to seek justice through the legal aid system. I make that point about the Hillsborough inquiry and about the Bloody Sunday inquiry.
Do the lives of those 21 people not count enough? Is it simply that the wrong people were killed? Do we run a two-tier system, in which some people are entitled to legal help for justice and closure while others are not allowed that support? I hope we do not. I am putting the Minister on the spot, but we look to her with concern, and we request a positive response. That is not the system I signed up for. I believe in real equality—hon. Members know that. Everybody aggrieved by the troubles deserve the same time, attention and support.
I read an article that said that although the application of the families of the victims of the Birmingham pub bombs for legal aid was turned down, the black cabbie rapist has accessed £166,000-worth of legal aid. Am I the only person who sees something wrong there? We all do. He got an obscene, disgraceful amount of legal aid. I am really lost for words sometimes when I try to understand how the system works. I stand by people’s right to have legal support regardless of whether they are innocent or guilty, but it hurts to see these families denied access when there is no question of guilt. I understand the system, but understanding it does not make it right. The fact is that this is wrong.
I say respectfully and gently to the Minister that I am looking to her to make it right and ensure this case is reassessed. For too long, the victims of IRA atrocities have had to fight for the recognition that their families are important. This fight for legal aid is yet another example of salt being poured into wounds that cannot heal because they are not allowed to. Reopen the inquest, hear the evidence, do the right thing by those people, who have done no wrong. Please—for those victims and the victims of terror at home, enough is enough. I want to send this message to those families: they are not being asked to drop the case while watching the perpetrators and masterminds being celebrated, lauded and, in some cases, almost canonised and made into saints. The families of the victims of the Birmingham pub bombs deserve at least as much help, support and consideration in their quest for justice as those affected by other troubles-related murders.
I support the families’ quest and that of the two MPs who have spoken and those in the Public Gallery who are here to request legal aid help. I am sorry for the price they are paying and the grief they continue to go through. I am sorry that they are not getting the support they should get without question. They are not alone; I stand with them in this House.
It really is a pleasure to serve under your chairpersonship, Mr Hollobone. I congratulate the hon. Member for Birmingham, Northfield (Richard Burden) on securing this important debate, and the other Members of Parliament who have fought for this right and just cause. I pay tribute to the families’ courage and bravery.
As the hon. Member for Coventry South (Mr Cunningham) said, those who were alive at the time of this incident will never forget it. I was just a little girl, but I do remember it. I looked again at photographs of the victims today, and it is fair to say that their faces are familiar to those of us who are strangers to them: they have haunted us for many years.
It puzzles me that it has taken so long to get to the bottom of who carried out that atrocity. One almost wonders whether it suits some in authority for us not to get to the bottom of it. We are close to getting to the bottom of it. It is many years since innocent men were imprisoned and cleared in relation to the atrocity. There should have been inquests. The inquests that were originally opened in 1974 should have been reopened when the Birmingham six were cleared, but they were not. They were reopened in 2016 because of the families’ campaign.
The coroner’s decision—he is entitled to make it, but it is controversial—should be challenged because the decision to exclude the perpetrators from the scope of the inquest means that it will avoid the crucial issues of who carried out the bombing, who organised it, who ordered it, who made the bombs, who planted them and who their associates were. The families of the victims have the right to know the answers to those questions. As others said eloquently, this is about access to justice and equality of arms.
As others said fairly, the coroner himself said that the families should get those funds so the fight can be equal. Other parties will be publicly funded, so why should the families not be? I am a Scots lawyer, so I do not really understand how the Legal Aid Agency works down here, but it puzzles me greatly that people are seriously expected to give up the homes in which they live to fund this litigation.
I am a member of the Joint Committee on Human Rights, and we are currently carrying out an inquiry into the enforcement of human rights and access to justice, which is a very important issue in our society—it is a fundamental right. Many of the witnesses who have given evidence to our inquiry have said that an independent review is needed of legal aid in England. The LASPO review is under way, but it is not independent. The witnesses who have given evidence to our Committee have, in the main, said that there should be an independent review separate from the Government so the matter can be looked at independently.
North of the border, there has been an independent review into legal aid, separate from the Scottish Government, who run legal aid in Scotland, and it has made certain recommendations. It also found that although the Scottish Legal Aid Board spends less per head than is spent in England per head, there is much wider scope to and eligibility for legal aid in Scotland—indeed, 70% of the population of Scotland are eligible for legal aid.
It is therefore possible to run an economic and effective legal aid system. A legal aid system that denies access to funding for people to get to the bottom of the truth about who killed their loved ones cannot be a just system. Will the Minister consider holding an independent review into the Legal Aid Agency and into the criteria and eligibility for legal aid south of the border? In support of others’ requests, will she tell us clearly whether some special arrangement could be made to fund the families pending the outcome of any independent review into legal aid? If the answer to both those questions is no, will the Minister tell us how she thinks it is possible for there to be true access to justice when there is such inequality of arms?
It is a pleasure to serve under your chairship, Mr Hollobone.
I thank my hon. Friend the Member for Birmingham, Northfield (Richard Burden) for securing this debate. He and other colleagues who have spoken today have stood with the families of the Birmingham 21 as they have campaigned tirelessly for justice for the loved ones they lost on that terrible night. As others have done, I pay tribute to the families themselves. I am in awe of the determination of people such as Margaret Smith, Brian and Julie Hambleton, and all the family members who are still fighting for the truth about what happened on that terrible night. It is testament to the strength of their love for the family members they lost that they are still fighting for justice 43 years later.
Fight is what the families have had to do every step of the way. They fought to reopen the inquest after 40 years without support or answers, and they had to fight to receive legal aid for that inquest. I am proud that the Labour party has long supported the families in their quest for legal aid so that they can pursue justice for their loved ones. The Labour party will continue to do that.
Over 43 years an awful lot of Ministers of different political persuasions have looked and looked at this. Will the hon. Lady join me in appealing to the new Minister who is picking the issue up for the first time to look at it with fresh eyes? Everyone who has filled her role comes to the view that it needs to be put right, but every fresh start is more pain for the families concerned.
The right hon. Lady is right: this is an opportunity for a fresh start, and I agree that there have been many opportunities for such fresh starts. Now the families are fighting for the scope of the inquest to include those believed to have been responsible and their actions leading up to the bombing. They therefore raised £20,000 through crowdfunding for the judicial review into the scope of the inquest. At the end of last year they won their battle in the High Court.
Even now, however, the families cannot stop fighting—they have been denied legal aid to represent themselves at the coroner’s appeal against the High Court’s decision. Mr Malcolm Bryant, in his letter to the families denying legal aid for the challenge, stated:
“I am confident that a new crowdfunding drive could provide an alternative means of funding the appeal.”
The head of the exceptional case funding team for high-cost complex cases is suggesting that families must resort to crowdfunding in order to obtain justice. Is that not a sign of something very wrong in our justice system that bereaved families are being told to resort to crowdfunding drives to continue their quest for answers?
Families must apply for exceptional case funding and meet stringent tests in order to receive legal aid at an inquest. In certain cases the Legal Aid Agency may decide to waive the financial eligibility test for family members, if it can be argued that it would be unreasonable for the family to bear the full costs. Where the family has lodged a legal challenge to the basis of the inquest—the Justice4the21 group has asked for the suspects to be named—there is no such discretion, even though legal fees to defend the families’ point in the Court of Appeal might run into tens of thousands of pounds.
Will the Minister therefore ask the Lord Chancellor to review the Legal Aid Agency’s decision not to grant legal aid in this case? Will the Government consider extending the financial eligibility waiver to proceedings directly related to the inquest so that the families of the Birmingham 21 and others can be sure of a level playing field when fighting for the truth? When families are grieving and simply looking for the truth, they should not have to think about taking out loans, resorting to crowdfunding or being burdened with legal fees.
The Government claim that families do not need legal aid for representation at an inquest because it is not an adversarial process, but if that really is the case will the Minister explain why the Government still feel the need to spend hundreds of thousands of pounds in public money to ensure that their side is represented effectively at inquests? Why should families not have access to the same degree of representation? It is a simple matter of ensuring a level playing field.
The families of the Birmingham 21 were victims of an act of terrorism, and then of a system that has made them fight every step of the way for answers. Families who have been through so much, who have suffered the death of sisters, daughters, husbands and fathers, should not have to fight every step of the way for answers to how their loved ones died and who was responsible. I hope that today the Minister will back the families of the Birmingham 21 and all those fighting for answers, and guarantee that legal aid will be made available.
It is a pleasure to serve under your chairmanship, Mr Hollobone.
I am extremely grateful to have the opportunity to respond on such an important issue in such an important debate, and I congratulate the hon. Member for Birmingham, Northfield (Richard Burden) on securing it. He has been very active in supporting his constituents and in making representations to the Legal Aid Agency, as the hon. Member for Birmingham, Yardley (Jess Phillips) has been in raising the profile more broadly. Like them, I welcome the families to Westminster today.
I understand why there is such strength of feeling on the subject from hon. Members on all sides. I have the deepest sympathies with the families and friends of those who were injured or lost their lives in the terrible atrocities that took place in Birmingham in 1974. I cannot imagine what they have been through. I understand the inquest plays a crucial part in the investigations that continue, and I appreciate that it plays an important role in enabling families to understand and make sense of what happened to their loved ones.
Much of the debate has focused on legal aid. The hon. Member for Birmingham, Northfield asked me to explain how legal aid differs in the various types of cases for which it can be granted in relation to an inquest. It is therefore important to identify the types of assistance that can be granted and have been sought in this case.
The Ministry of Justice acknowledges that, in certain cases, legal aid in the lead-up to an inquest may be required, and has ensured that early legal advice for inquests is available under legal aid for those who are eligible. I understand that such legal aid was sought and granted in this case. Next is the issue of legal aid for representation at the hearing itself. An inquest should be an inquisitorial process that focuses on establishing the facts of death. It should not really be an adversarial hearing, and should be conducted in a very different way from a court proceeding. Participants do not always need to present legal arguments and so, in most inquest hearings, the bereaved family do not need representation to participate in the process. Most inquest hearings are conducted without the need for publicly funded representation.
Having said that, publicly funded representation may be needed in certain circumstances and is then sought. Legal aid is available for legal representation at inquests under the exceptional case funding scheme. Legal aid is awarded through that scheme on a case-by-case basis. In deciding whether funded representation may be necessary, the Legal Aid Agency considers all the relevant individual facts and circumstances of the case, which usually include the particular circumstances of the family. Legal aid for representation at inquests is subject to means and merits tests. In such circumstances, means can be waived.
As the hon. Member for Birmingham, Northfield highlighted, the families have previously received publicly funded legal representation for the inquests on this matter.
Like me, the Minister practised in the courts before she became an MP. Does she agree that, where the families of the bereaved are not represented at inquests, stones are often left unturned that would have been turned had the families had a lawyer?
The hon. and learned Lady makes an important point, as always. The position is that it is not always necessary. If it is necessary, families are able to apply for it, but in his report on Hillsborough, the Bishop of Liverpool identified that, according to a 2003 fundamental review of death certification and investigation cases, no representation was needed in 79% of cases, because the families could represent themselves.
In many inquests, legal aid is not needed because the families do not need to advance legal arguments, because it is not an adversarial process, but I recognise that in some cases, it becomes a very adversarial process—that is not really appropriate, but it does become that—and legal aid can be and is sought. In fact, exceptional case funding has been granted in half the cases where people have applied for it.
The Minister mentions the Bishop of Liverpool’s review. His report called on the Government to instate:
“Publicly funded legal representation for bereaved families at inquests at which public bodies are legally represented.”
It has been five months since that report was published, but we still have not had a response from the Government.
The hon. Lady is right—others have also called for that. That is why the Government are undertaking a review, which has started and which I will come to, in relation to legal aid funding and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 generally, but more particularly and more relevant in this case, in relation to legal aid funding for inquests.
I have identified the two circumstances where legal aid was sought and granted in this case. The third, which is what the debate centres on, is the provision of legal aid for judicial review. Legal aid is available for judicial review in generic terms. However, as with legal aid for inquests, this availability is subject to a number of restrictions. Applicants must satisfy statutory tests for their means and merits in order to qualify for legal aid for judicial review. The reason that they are required to satisfy those tests is to ensure that the resources that are available for legal aid generally are given to those who are most in need. In the case in question, which was an application for funding for a judicial review, the Legal Aid Agency determined that those requirements were not met.
I fully appreciate that the families have found that decision of the Legal Aid Agency very frustrating. The hon. Member for Ashfield (Gloria De Piero) asked whether I can review that decision, but it is important to point out that funding decisions are made by the Legal Aid Agency independently of Ministers. I am not privy to the details of the decision. The decision whether to provide legal aid funding in an individual case should not be a political one. It is solely for the director of the legal aid casework at the Legal Aid Agency to decide whether a case is within the regulations and the laws that Parliament has set. I was not aware of the reasons why legal aid was determined—that is a decision of the Legal Aid Agency independent of Ministers.
My right hon. Friend the Member for Meriden (Dame Caroline Spelman) and the hon. Member for Birmingham, Northfield made very important points at the beginning of the debate about the coroner having called for legal aid to be reinstated but, as I said, that is not a decision for me or for him—the decision on legal aid is a matter for the Legal Aid Agency.
Will the Minister give way?
I am conscious of the time, so I would like to press on.
I will make two wider points about legal aid outside this case. First, legal aid is a fundamental pillar of access to justice. More than a fifth of the Ministry of Justice’s budget is spent on legal aid in England and Wales. The system was designed when it was implemented in 2012 to ensure that those who are most vulnerable and have no other means of funding support are provided with assistance. Those principles in generic terms are fair ones.
Secondly, we recognise that it is right to look at and review inquests more broadly. An inquest ought to be an inquisitorial process that focuses on establishing the facts of death and should not be adversarial. The presence of several lawyers at a hearing often adds to the distress and anxiety of the family, who feel, as was stated by many hon. Members, that there is an imbalance and unfair representation. With that in mind, the Ministry of Justice is undertaking and exploring a number of ways to make inquests less adversarial and more sympathetic to the needs of bereaved people. We are working with other Government Departments that are often represented at inquests, as well as the legal profession. We are looking at ways to reduce the number of lawyers, training for coroners and lawyers, extending support services, updating our written guidance and updating the legal guidance on deaths in custody, so that we ensure the starting presumption is that legal aid should always be available.
Many Members mentioned that we are reviewing legal aid for inquests in general. That review has started already. Experts are giving evidence, and there will be a public consultation. I encourage family members to give evidence to the public consultation if they wish to do so. I also encourage Members to respond. The hon. Members for North Antrim (Ian Paisley), for Birmingham, Yardley and for Strangford (Jim Shannon) made powerful points in relation to justice, and said that justice needs to be done. They put forward many arguments for why the families need support.
I recognise that getting the inquest right for the families is incredibly important. Families who have suffered dreadfully are entitled to justice. I thank the hon. Member for Birmingham, Northfield and all hon. Members who have spoken and contributed to this important debate.
First, I express my appreciation to hon. Members from across the House who have given their support in the debate: my hon. Friends the Members for Birmingham, Yardley (Jess Phillips), for Birmingham, Selly Oak (Steve McCabe)—he could not stay for the entire debate but was here to give support—for Ealing North (Stephen Pound) and for Coventry South (Mr Cunningham); the right hon. Member for Meriden (Dame Caroline Spelman); the hon. Members for North Antrim (Ian Paisley) and for Strangford (Jim Shannon); and on the Front Bench for the Scottish National party, the hon. and learned Member for Edinburgh South West (Joanna Cherry); and for Labour, my hon. Friend the Member for Ashfield (Gloria De Piero). They all made powerful points.
I have to confess to being disappointed by the Minister’s response. She spent time discussing whether legal aid should be available and the circumstances in which it should be available for inquests. I think she was wrong in saying that any legal aid has been provided in this case—I do not think that a penny of legal aid has yet been paid—but she is right that legal aid has been granted for the inquest. The point that we are putting to her is that, if it is appropriate to provide legal aid for the families for the inquest, why does it become inappropriate to provide legal aid for those same families for an important point of law arising out of that inquest? It is simply illogical. I am afraid that the Minister did not answer that point.
The Minister says she cannot intervene in the Legal Aid Agency decision on whether legal aid can be granted, but has not said whether she feels it has discretion to come to a different decision.
I am sorry if that was not clear. The reason that it can be granted in the first two circumstances is that the means test is discretionary and can be waived, but in a judicial review, it cannot.
The Minister says that there is no discretion, and that the matter is being reviewed. I am glad that it is being reviewed, but frankly, this case will not wait. The families need a decision now. The decision that they have had from the Legal Aid Agency is not in the interests of justice. If there are no avenues through the regular legal aid system to provide them with the support that they deserve—support that the coroner himself says should be paid—in the interests of justice, either because the Legal Aid Agency does not have discretion or because it does not feel that the means test requirements have been met, the problem is still there. It therefore comes back to the Minister to say what she is going to do about that problem, which will not wait.
In the situation applying to the Hillsborough inquest, the Government eventually said that this was a matter of such fundamental public interest that a special fund should be made available to ensure that families have legal representation. We are simply saying that if that rightly applied in the Hillsborough case, it should also apply here. It is simply illogical that the families are denied equality of representation in the Court of Appeal, where representation is available to the coroner. That has to be put right. Only the Minister can do that, and I hope she reconsiders the points she has made today.
Question put and agreed to.
That this House has considered legal aid for families of the victims of the Birmingham pub bombings.