Before we begin, I encourage Members to wear masks when they are not speaking, in line with current Government guidance and that of the House of Commons Commission. I remind Members that they are asked by the House to have a covid lateral flow test twice a week if coming on to the parliamentary estate. That can be done either at the testing centre in the House, or at home. Please also give each other and members of staff space when seated and when entering or leaving the room.
That this House has considered the First Report of the Justice Committee, The Coroner Service, HC 68, and the Government response, HC 675.
It is a pleasure to serve under your chairmanship again, Sir George, and to introduce the debate. I am grateful to the Backbench Business Committee for allocating time for the debate. This is an important matter that deserves further attention. I am sorry in some respects that it requires further attention, because had the Government responded more positively to what is a detailed report based on careful and substantial evidence, it might not be necessary to highlight the measure of deficiencies that are revealed in the Government’s response.
I welcome the Minister to his first justice debate in Westminster Hall, having congratulated him warmly on his debut at the Dispatch Box in the main Chamber yesterday. I appreciate that the Government response was not his responsibility, and I am not sure if he can avail himself of the young and naïve defence that was used yesterday.
Tuesday. Now that he is in post, I hope that, once he has read the Government response, he will take the opportunity to ask his officials to review it, because there are compelling reasons, which we will set out, why the Government should look again at a number of issues.
It is good to see a former member of the Justice Committee appear for the first time as a shadow Minister in Westminster Hall. The hon. Member for Hammersmith (Andy Slaughter) certainly knows the full detail of the report because he played a substantial part in contributing to it. I hope that he will be able to agree with the contents of the report when we get to the end of the debate.
I also want to mention the presence of the hon. Member for Wallasey—
Garston and Halewood. The hon. Lady has played such an important role in the debate and has raised the issue—I know she will do so again today —of inquests into major disasters, such as Hillsborough, with great passion and expertise. I am grateful to her for her input to the report and to today’s important debate.
The debate is on an issue that is of concern to a lot of people. I am grateful to the House authorities for making an exception by allowing representatives from INQUEST and Mr Andrew McCulloch, who gave our inquiry compelling evidence about his family’s experience, to sit in the Public Gallery.
Let us start by taking an overview. The coronial system and jurisdiction date back to medieval times; it is one of our oldest jurisdictions. It grew up on the basis of a very localised approach. That means that historically it was dealt with and supported by local authorities—initially parishes, counties and then eventually it morphed into being supported by essentially top-tier authorities in the modern local government structure. That makes it completely different from any other type of court jurisdiction because we moved to a unified magistrates court service some years back. That originally came from not dissimilar localised routes, but it was recognised in the case of magistrates that logic compelled that we move to a single national system. I have to say that nothing has persuaded me that the same logic does not apply to the coronial system.
The system means that some of the procedures and levels of funding are much more variable across the country than those in any other form of court system. There are differences between it and the criminal courts in particular—the coronial system is inquisitorial, whereas the criminal court system is adversarial—even though there is, sadly, an overlap in the subject matter they both consider. The complexity and nature of the issues that now frequently come to be considered by coroners, in relation to both the evidence presented in individual inquest cases and the growth in inquests into multiple deaths, mean that the system—which started in the time of the Plantagenets and evolved through the Tudors and Hanoverians—does not work in the 21st century, based on our judgment of the evidence. That is why, on the back of very strong evidence, the Committee recommended a major reform.
I agree very much with what the hon. Gentleman has said thus far. Does he agree that the adversarial nature of some coroner’s inquests often results from a public authority trying to defend its reputation and defend against civil or criminal liability that it may fall into as a consequence of the outcome of the inquest? Yet the families, who are also interested parties, simply want to know what happened to their loved one. Things become adversarial because of that difference in the interests of the interested parties.
That is a perfectly fair point. We have all had experience and seen a great deal of evidence of that. The more potentially sensitive the issue, the more that is likely. Let us be blunt: in some cases, there will be public bodies who desire to avoid the potentially significant claims for damages that could arise if it is found that their negligence has, to some greater or lesser extent, contributed to the death of the deceased. They therefore have a direct stake in trying to minimise their fault. There is inevitable pressure on them to do that.
In that event, it is right and proper, even within an inquisitorial system, that the coroner should not have to bear the whole burden of trying to rectify that. Instead, we should enable the other interested parties—the families—to have legal representation as well. The truth is, in these types of inquest, it is not the purely old-fashioned inquisitorial system any more. The reality is that an adversarial and defensive nature has inevitably been brought into the legal proceedings by the legal representatives —acting on the instructions, of course, of the public bodies concerned.
That is why we think it is important that there should be equality of arms. We recommended that there should be automatic entitlement to non-means-tested legal aid for legal representation for people in relation to mass inquests, where there are multiple deaths, and that non-means-tested legal aid or other public funding for legal representation is made available for people when public authorities are legally represented. The level of representation may vary according to the complexity of the case. However, the principle should be there.
I accept that there has been positive movement from the Government in one respect. INQUEST, in its very helpful briefing for today’s debate, recognised that the Government did announce that they would take forward legislation to remove the means test for applications to exceptional case funding for legal representation at inquests. They also announced an intention to provide non-means-tested legal help. That is also crucial. However, the suggestion that non-means-tested legal help will be contingent on cases where ECF has been granted does not seem to be logical, given the range of cases that are potentially engaged here, and the way these processes operate.
Does the hon. Gentleman agree that it is hard to think of anything that could have a more catastrophic impact on the capacity of the coroners courts to do their work than a shortage of pathologists?
It is pretty fundamental, is it not? At the end of the day, if the purpose of the inquest to determine the cause of death, the most important bit of the evidence in that respect will often be the pathologist’s report, so it seems strange, to put it mildly, that what is a very modest proposal in the overall scheme of things has not been pursued.
The Government said they were not convinced that the level of fees was the reason for the shortage of pathologists. I ask the Minister politely, in that case, what they think it is? If it is not the level of fees, what is the problem? The Royal College of Pathologists certainly thinks it is an issue; it says 62% of its members giving up post-mortem work cite poor remuneration as a major cause of their decision. If it is not the sole consideration, it sounds to me as if it is one of the major ones, and one that could be easily and swiftly resolved.
There are other issues that we suggested, such as working with the Department of Health and Social Care to make sure that pathologists’ work is planned within their NHS contracts. The problem is that the work they do for coroners is outside the NHS contract. If it is outside their contract and they are being paid a wholly out-of-date fee for it, no wonder it is difficult to get people to do it.
Is there a proper workforce plan for recruiting adequate numbers of pathologists? As the hon. Lady says, we almost cannot get past first base in many inquests without having the pathology services there to start with. I hope the Government will be able to look at that again. What do the Government intend to do to improve recruitment and retention of pathologists? If it is not increasing the fee levels, what else will they do? Things are clearly not sustainable as they are—having 580 vacancies is simply not viable.
The other point I wanted to touch on briefly is something I mentioned early on: the procedure for addressing fatal risks identified by coroners and juries, the prevention of further deaths reports. As I said, they have become increasingly important, and we have all seen their value in many highly publicised cases, but there is currently no consistent mechanism to ensure follow-up. Again, that is due to the highly localised and diffuse system that we have.
It is a pleasure to serve under your chairmanship, Sir George. As a fellow Merseyside MP, I know you have long-standing experience of some of what I will discuss, particularly the first inquests into the Hillsborough disaster. I think you are the only person present who actually attended one of the many inquests at the time, so you know better than anybody how catastrophically wrong they went.
I congratulate the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who is the Chair of the Justice Committee, on the way he introduced this important debate. I welcome the Minister to his post. Immediately after we produced the report, all the Ministers were cleared out in the reshuffle of the Ministry of Justice. It is not something that is ever helpful for getting continuity of effort and speed of response but it is not the Minister’s fault that he has only just come into his role and I wish him well. The hon. Member for Bromley and Chislehurst said he is a can-do Minister, and I hope he is a will-do Minister too.
The report into the coroner service is not only knowledgeable and good—I am bound to think that, given that I am a member of the Justice Committee, which produced it. It also identifies issues that have come to light not just over the last couple of years but, as the hon. Member for Bromley and Chislehurst said, over a couple of decades in some cases. I was the courts Minister in the MOJ for a period of time, back when Jack Straw was the Lord Chancellor in the late 2000s, as well as being the prisons Minister thereafter. I was also one of the Ministers who took the Coroners and Justice Act 2009 through the Commons, although I was not the lead Minister. Bridget Prentice did the policy development, but I did some of the work in respect of the Bill.
I recall the debates about whether we should have a national coroner service. It is always a question of cost, but somebody will have to grasp the nettle and deal with this issue at some point. As the hon. Member for Bromley and Chislehurst said, it is anomalous that it is still a local service. No matter the value of a local service, the consequence of having a local service is that people get a postcode lottery, which is not acceptable for the delivery of basic elements of our justice system. That is something for the Minister to grapple with in due course.
Order. I remind the hon. Lady that another speaker has to be brought in, and I will call the Front Benchers at 2.38 pm. Will she take that into account?
I will—apologies, Sir George. I will make sure that the hon. Member for East Worthing and Shoreham (Tim Loughton) has time.
I hope that the Minister will consider Bishop James’s report and our proposals, and come forward with a much more positive set of responses to the issues raised. In view of the time, I will not say what I wanted to about the prevention of future deaths, but more needs to be done on that. If more is done, lessons can be learned to prevent future deaths instead of the same thing happening time and again, with different coroners sending letters saying the same thing to the Government, who then do nothing about it for many years.
I am grateful for your intervention, Sir George. I do not have a lot to say, but I want to raise two specific issues, which have both been alluded to by the previous contributors. I congratulate my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) and the Justice Committee on a comprehensive, timely and necessary report.
The two issues that I want to raise are coroners’ investigations into stillbirths—the subject of my private Member’s Bill—and the Shoreham air show crash. To start with the latter, I am sure that colleagues will remember that fateful day in August 2015 when at the Shoreham air show, which had been running for some 28 years, raising large amounts of money and providing a great spectacle in aid of the Royal Air Force charities, a Hawker Hunter jet crashed and 11 innocent bystanders on the ground tragically lost their lives. It was the deadliest air show accident since the Farnborough air show crash in 1952, so that activity has an extraordinary safety record over those many years.
An interim report on the crash was first produced in September 2015 by the air accidents investigation branch. A second report was produced in December 2015, and a third in March 2016. In January 2017, the Civil Aviation Authority accepted all the recommendations. In March 2017, a final report identified pilot error, and in December 2019 there was a supplementary report to the final reports from the AAIB. There was also a prosecution, and the court acquitted the pilot in March 2019. A lot has been written about the tragedy.
The only thing that has not happened is the coroner’s inquest. Six years, two months and six days on from that fateful tragedy on 22 August 2015, the families of the 11 men who lost their lives have still not have the closure that a coroner’s inquest could help to bring. That is made worse by the fact that, in the end, nobody was convicted of any fault. I make no comment about the trial that took place, but it certainly did not answer the questions those families still have. They have had to go through the trauma of not really getting to the bottom of what really happened on that day and not getting the answers that a coroner’s inquest could bring.
It is a pleasure to see you chairing our proceedings, Sir George. I thank the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), for his comprehensive and clear setting out of the recommendations of the report and for not pulling his punches in dealing with the Government’s response. The contributions of the hon. Members for Garston and Halewood (Maria Eagle) and for East Worthing and Shoreham (Tim Loughton) were much appreciated. The examples they gave were not typical of the inquest system, but the system needs to stand up to all eventualities. They talked about particularly harrowing circumstances and personal recollections from their own constituencies, which show how important it is, not just for the many people affected by coroner proceedings, but for the general public. We must get the policy right, and that is not happening, sadly, in all cases at the moment.
If the Chair of the Committee had not already outed me, as part of my duty of candour I was going to say that I was a member of Justice Committee when it heard the evidence for and approved this report. It comes as no surprise that I think very highly of the report. It deserves this debate on its merits but, as the Chair of the Committee made clear, this debate is a mark of the displeasure of the Justice Committee. The Government’s response to what has been set out is wholly inadequate. The report is the first since Tom Luce’s 2003 report almost 20 years ago that has comprehensively looked at the faults and issues in the coroner system. We might have expected something better in response.
It is clear that proceedings grind slowly in relation to reform of the coronial courts. The legislation recommended by Tom was not passed for six years and did not take effect for four years after that. We then had the review, which was six years ago, and it has not yet been published. That is not a terribly good start, but we now have the happy coincidence that the Judicial Review and Courts Bill is going through its proceedings in this House. It had its Second Reading this week and will begin its Committee stage, which the Minister and I will take part in, next week.
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This is not the first time that there have been calls for a national coroner service. Previous reports, which are well documented in our report, have argued for this in the past, but the Government have been consistently unwilling to agree to it. I am sorry to say that I cannot see any compelling reason for their stance. The argument seems to be cost, but that same argument could have been made about magistrates courts. It rightly was not. We have to balance cost with the importance of the work that coroner courts do for the public and individual families.
It is right that when tragic deaths occur, there is a proper and transparent hearing into what has happened. Many of the cases dealt with by coroner courts will be straightforward and uncontroversial. Nobody is seeking to change that, but increasingly there are cases that are not only much more complicated in terms of the causes of death, but of really high public importance. Hillsborough is the most obvious and well-documented example, but there are many others. We have seen this in the growth in issuances of prevention of future deaths letters, which is a procedure the coroner is in power to use. These are being written more often because, sadly, more instances of failures, often corporate, come to light at inquests. It is important for public policy that those issues be fully ventilated.
Those arguments lead us to the conclusion that we need to take a much more radical look at the issue. The last overhaul of the system was with the Coroners and Justice Act 2009. There was a review of the operation of that Act, as had been promised in 2015, but I regret to say that it was never published. It sits somewhere in the archives of the Ministry of Justice. Perhaps if the Minister, as I occasionally used to do when I was in post, went in on a Friday when the officials might expect him to be in his constituency and had a poke around, he might find it somewhere. I urge him to get somebody to go and have a look at it.
The simple question is: why was the review never published? What on earth was the reason, even back in 2015? We ask why it has not been published and are told that it is now out of date. If one sits on anything for long enough, it becomes out of date. We might ask whether this is a blatant cover-up, but if it is not a cover-up why not publish the review? It would cost one official’s precious little time to put it on a website—we do not need anything more than that. No doubt, there will be a suitable narrative around the review saying, “This goes back a long way and things may have changed.” As a matter of good public policy and transparency, why on earth has the Ministry of Justice not published it?
The Ministry may even say at the end of the day that it disagrees with the conclusions or does not think they are viable. It may say that the review is not appropriate any more. Put it up there and say that. To me it is the obvious thing to do. It might be that there are lessons to be learned from the review. The actual structure of the service has not changed since the 2009 Act and there have not been any significant changes, so I guarantee that not everything is purely of historic interest. I ask the Minister to respond to this issue, which I mention first simply because of the history. It is against the background of a number of reports recommending a move to a national system that that became the central part of our recommendations.
The reasons can be encapsulated as follows: coroners’ services are funded by local authorities, whose financial circumstances and priorities vary—as you well know, Sir George—because the pressures on their resources vary. As such, the service that is given to bereaved families across the country varies, as does the service provided to the public. We do not think that that is justifiable, any more than it would have been justifiable in the case of magistrates courts some time ago.
The overwhelming majority of those who submitted evidence to the inquiry called for a unified coroner service to ensure consistent standards, and that is what we recommended. The Government rejected that, saying that they did not think it would be the best solution. They said, as far as I can see, that there is merit in flexibility, but that does not at all reflect the evidence we received. I have had a few clients over the years who were faced with pretty overwhelming evidence, and I usually told them that the answer was to put their hands up. For some reason, the Government have not done that, but the evidence is just as strong—it was really quite marked how compellingly the weight of evidence was tilted in one particular direction—so I hope the Minister will take that recommendation away and have another look at it.
In particular, it was suggested that there were cost issues around the proposal, and I accept that. However, this is part of the justice system, and as some of us have said on other occasions, an effective justice system is so fundamental to the wellbeing of civil society in this country that one should not be afraid to make a proportionate amount of money available to make sure it is delivered properly. Can the Minister at least tell us whether he will share the cost analysis that backs up the Government’s conclusion in relation to this recommendation? Will it be made public? It seems to me that it ought to be. What is the basis of the Government’s assertion that it is too costly, given the benefits that the evidence clearly suggests would be achieved?
A second recommendation went hand in hand with the first. If one thought that a national service is too ambitious—which I do not—one could consider having a coroner service inspectorate: a single national inspectorate. We have inspectorates for the Crown Prosecution Service and a raft of other Ministry of Justice agencies, and it does not seem unreasonable to do that in this case. I am glad to say that in recent years there has been an important development: the creation of the post of Chief Coroner. A series of very distinguished judges have held that post, and they have undoubtedly done a lot to improve the system within the limits of their current powers.
Being head of a national service could, of course, give the Chief Coroner the proper powers of direction to ensure consistency across the piece. The CPS, the prisons and probation inspectorates, and the inspectorates assessor alongside them, are not expensive in the overall scheme of things. We all know that the budgets for the inspectorates that the Ministry of Justice run are very small compared with the day-to-day delivery costs. I would argue that that should be introduced alongside a national service, but even without one it would be a sensible, reasonable thing to do and a step in the right direction, and something that the Government could consider without prejudice to their principal position.
Has any work been conducted to assess the affordability of establishing a coroner service inspectorate? Without such an inspectorate, how are the Government going to ensure that the coroner service is sufficiently transparent and accountable? Given that the Government did not dispute the evidence of inconsistencies of practice, how will they ensure consistency of practice, or much more consistent practice than we have at the moment? That is exactly the sort of thing one would expect an inspectorate to be there for, so why not?
Another very important issue was the question of access to legal aid for bereaved persons, which is an immensely sensitive issue, as Members will understand. We heard really moving evidence from a number of families who had lost loved ones and, inevitably, found the whole process to be extremely distressing. It seems to me that a number of issues arise from that.
At the moment, there is no legal aid for bereaved families at inquest, other than exceptional case funding. To be clear, a large number—perhaps the majority—of cases that come before the coroner’s court will not require legal representation. They are very straightforward and seek to ascertain the cause of death—no more, no less. However, a significant number of cases involve more complex issues. One would, therefore, expect that it is right for families to have legal representation in those cases. However, they may have lost the principal breadwinner of the family or be going through many other pressures—is it right to expect them to go through the very complicated procedure of exceptional case funding? It is not like the ordinary legal aid application form; it is a much harder, more bureaucratic set of measures. It does not seem fair to put people through that, after such tragedies.
There is also an important question of principle. Frequently, one of the interested parties will be a public body. It may well be a health authority, a police authority or chief constable, or a local authority. It might be a Government agency of one kind or another. That party will invariably have legal representation. Sheer equality of arms—a basic principle of the rule of law—would surely dictate that in circumstances where a public body is legally represented, the family should also have legal representation, even within an inquisitorial, as opposed to adversarial, system. The family have the right, as they should, to expect that the evidence given by the public body and its representatives is tested, particularly as there may be a challenge to it, and that there is a full explanation as to whether the actions of the public body, whatever it may be, contributed to the death of the deceased.
As I understand it, there are plans to remove the means test for legal help in these circumstances—I am told there will be some public consultation on this—but I hope the Minister can update us on the progress of plans to remove this and on the time frame for bringing this to a conclusion. That would remove a great deal of pressure for many of the families who contacted us during our inquiry. Even if this cannot happen for them, the fact that it would be possible for families in the same position in the future would be a great boon, would improve public confidence, and would be a humane gesture by the Government. I hope therefore, in that spirit, that the Minister will give us more detail on how the Government intend to pursue that welcome move. Having been critical in some areas, I give them credit where credit is due, but I would like to see flesh on the bones in how that will be achieved.
It has also been suggested that there should be some delay until the Government have responded to Bishop Jones’ report relating to the Hillsborough families’ experiences. That was a very important report, and I can quite see that the Government would want to take it on board, but it was published in 2017, and we still do not have the Government’s response. I know the hon. Member for Garston and Halewood (Maria Eagle) will want to talk about that. I know that it sometimes takes a long time to get things done, but four years seems to be an awfully long time, particularly given the sensitivities and how that might weigh on the families of those concerned and on public confidence in the system. Can we have an indication as to when the Government intend to respond to the Bishop’s report, and a timeline for how they intend to deal with the particular issue of legal aid, which they have already moved towards?
What will be done for cases that fall outside that ECF funding to ensure families have legal help from the outset? The importance of that is not just what happens on the day, at the inquest. It is also in dealing with, for example, post-death investigation and inquest preparation. I hope the Minister will have more detail on that.
I might add, in passing, that another point in favour of a national coroners system is that it would enable the Chief Coroner to have far greater power to ensure consistency in pre-inquest hearings and that coroners, on a national basis, have a greater suite of case-management measures than they currently have—as found in the Crown court or elsewhere—to ensure that preliminary hearings are dealt with expeditiously, and that the issues are narrowed down so that evidence, when it does come from bereaved families and so on, is only that which is absolutely necessary. Sometimes, irrelevant material is attempted to be introduced, causing great pain to families without actually leading to the key conclusions in the case. That could be dealt with, and its admissibility determined, at a much earlier stage in the proceedings.
Those are all arguments for the national service, as well as for strengthening the role of the Chief Coroner—in management and so on. However, to do that properly, it is right and fair that the interested parties are legally represented on an equal footing at those preliminary hearings.
Those are some of the key areas that we addressed around the national system and the position of families in relation to inquests and representation. There are other things that we recommend should be done to help with families, particularly the experiences that all families have, which may not require legal representation but do just need a hand through the system. Even if it is not a contentious death—if I can put it that way—it is none the less a traumatic experience. The thought of having to go to court, having to identify the deceased, or so on, is a difficult circumstance for people. We thought that more work needed to be done to ensure that bereaved people know of the existence of the Ministry’s guide to coroner services; it is good that it is there, but the evidence shows that, on a consistent basis, there is nothing like the awareness of it that there should be.
We recommended that there should be work done to update the guide and make sure that it is freely available online, and where people cannot access it online, it is available in hard copy. I am glad that the Government accepted this recommendation—we appreciate that. However, we are concerned about what monitoring will be put in place, absent any form of inspectorate or national control, to ensure that this is delivered in practice and that families do receive the access that Government and the Committee want them to have. If it is locally based, what levers will the Government use to make sure it happens in every coroner’s area?
At the moment there is no central funding that goes to the coroner service; it is funded through a local government process with nothing from the Department. We think that the Government should look at a small amount of funding being made available for support services for bereaved people at inquests. That could be done as a separate stream, in the same way as we have streams for victim support in other areas of criminal justice. A small pot here could go a long way towards ensuring consistency. If it was ringfenced, and came directly from the Ministry, then it would ensure that support services for victims were not subject to the same local variations and vagaries as other elements of the system. It is a modest proposal, and I hope that the Minister might be able to tell us what the Government will do on it. Could they perhaps look at the affordability and deliverability of it? Has any work been done on it in the same way that work has been done to ensure that families get access to the guide and are signposted to other forms of support?
An unusual feature of the coroner system is that there is no right of appeal, as such. There is the right to seek a judicial review of the coroner’s decision, but the test for that is a very high one. One recommendation in our report is that there should be a straightforward appeals mechanism to the High Court, without having to go through the judicial review test—is it Wednesbury reasonable and so on. The Government said, fairly, that they would consider whether an additional appeals mechanism was appropriate, and I welcome that, but can the Minister help us as to what progress has been made in consideration of it? If there has been progress, and there is time, could we use the Judicial Review and Courts Bill to bring that forward? If not, can we have a timeframe as to when the Minister thinks the Department will be able to come up with a conclusion on an appeals mechanism and identify a vehicle that can put it in place?
As a general concern, it should be said that although there are some useful changes in the Judicial Review and Courts Bill that we debated on Tuesday, which are generally welcomed, a lot more that could have been done. I think there is a general disappointment that the Bill was not used as a vehicle to take forward a number of other issues that were raised in this report.
I wish to raise two further issues. One area of specific concern is the renumeration of pathologists—that is a real problem. The evidence is compelling; there is a real difficulty in finding sufficient pathologists to service the system. We heard that there are 580 consultant pathology vacancies in the United Kingdom, and we recommended that the Ministry should review and immediately increase coroner’s fees for pathologists. The fees have not gone up for over 20 years; it is difficult to think of any public service that could continue to attract people if the fees are not updated for 20 years. For some reason the Government have rejected that recommendation, and yet, we are not talking about vast numbers of people. We are not talking about the number of legal aid solicitors or barristers in the country; we are talking about a very small number of highly skilled and rare clinicians. To make it worthwhile for them to undertake this work, surely the Government need to look again at this.
What progress have the Government made? They said that they recognised that more could be done and they would consider options, and I welcome that, but what progress have they made in considering how preventing future deaths reports could, first, be made more accessible and, secondly, followed up routinely? The whole point is that they ought to be out there in the public domain to change working practices, to change behaviour and to stop such things happening again.
However, as we found out with prison inspectorates and other things, all too often recommendations are left sitting there and are not followed up. The difference that was made when Her Majesty’s inspectorate of prisons had the ability, and some funding, to follow through on its recommendations was quite marked. What will the Government do to learn from what happened in the prisons system and put in place a mechanism for consistent follow-up and action? Could the Chief Coroner be given greater powers here? It would sit very logically within a coroners inspectorate system, which is perhaps another strong argument for going down that route, but in any event there ought to be a system of consistent means of follow-up and proper transparency and scrutiny.
The Government accepted our recommendation on bringing stillbirths within the coroner’s remit. That will be a considerable benefit to many bereaved families. A joint response from the Ministry of Justice and the Department of Health and Social Care was promised; can the Minister tell us when that response will be forthcoming?
I have not touched on everything, but I hope that gives an overview of what was a very substantial report, and the substantial issues it raised, by no means all of which have yet been satisfactorily answered. I know the Minister brings a fresh mind to this matter, and he is a can-do politician, so I hope he will use this opportunity to reassure us that the Government have not just closed the book on this and said, “No, thank you, that’s the end of it,” but that we can continue to have a constructive engagement with the Government about improving the system—because clearly, it does need improving.
Perhaps my most important qualification for wanting to speak in today’s debate is as a constituency MP from a Liverpool constituency. I have been the MP there for almost 25 years, and I have a long-standing involvement with many of the bereaved families and survivors affected by the 1989 Hillsborough disaster. I have seen the horrendous experience of our justice system that they, as wholly innocent bereaved and traumatised people, have had to endure, partly because of the appalling failings of the first coroner’s inquest, which took place in 1990. That was not only the fault of the coroner who handled it at the time; in part, it was a consequence of the behaviour of public authorities, particularly the South Yorkshire police.
I am very much in favour of putting bereaved people at the heart of the coroner service, and it is not only about Hillsborough. I have had dealings with other families who have been caught up in other disasters, such as the sinking of the MV Derbyshire, although that did not involve the coroners. It happened at sea, so that involved a wreck commission. It was long before my time as an MP, but the ongoing trauma felt by bereaved families was still there when I became the MP for what was then Liverpool Garston.
There was also the Alder Hey organs scandal. Scandals and disasters happen every few years, and they can lead to decades of trauma for families.
I have had constituents who have had to deal with coroners’ inquests at the worst time in their lives—after they have lost a loved one, often in traumatic, unexplained or contentious circumstances. They have had to face a public authority that is being defensive, that is lawyered up to the eyeballs and that seemingly has an unlimited budget to spend on avoiding the blame and minimising its responsibility. That is how it often seems to bereaved relatives, who are going along as interested parties—the same status as the public authority before the court—simply to find out the truth of what happened to their loved one and to have a measure of justice done, so that they get the right verdict according to the facts. That is what families who go to inquests want, whether they are a member of a group of bereaved people who have lost their loved ones in awful circumstances or a single family who have lost a loved one and the coroner needs to be involved.
I want to say a little about the experience of families caught up in public disasters. In the case of Hillsborough, the interim report of the Taylor inquiry into the cause of the disaster—remember, this was filmed; it was on TV live, and people saw what happened—reported within four months of the 1989 event. Although time has proven it was wrong in some respects, most notably on the emergency services’ response, it has been proven entirely correct—remarkably so, given that police were changing statements to try to affect the way in which the inquiry apportioned blame—in finding that the main cause of the disaster was a failure of police control. That report was done within four months. It was quite clear at that stage what had gone wrong, yet South Yorkshire police did not like that finding and refused to take responsibility, as Taylor had said in his conclusions that they should. Instead, they used the inquests to give a very different impression, which set the tone that persisted for three decades—three decades of hurt and pain caused to the families and survivors.
There were procedural issues at the time of the first inquests. The inquests were difficult to handle and took more than a year. At that time, they were the longest inquests that had ever taken place in British legal history. The way in which the coroner chose to handle them did not work. The police exploited the way in which he chose to handle them to have evidence put that supported their story. Every individual who died had their blood alcohol levels taken, even though a third of them were children—the youngest was 10. The coroner allowed that.
So the impression was given, during the inquests, that the police story, which Taylor had refuted—that it was not the police’s fault but that of the victims and the Liverpool fans—was perpetuated, ingrained into the public imagination and reported in the newspapers every day for a year. Funnily enough, 30 years later some people still think that is what happened at Hillsborough. It was the coroner’s inquests being inappropriately conducted that led to that hurtful and difficult outcome—a year of propaganda leading to the wrong verdicts.
It took Hillsborough families until April 2016 to get the new, correct inquest verdicts of unlawful killing—a full 27 years after the events. The second inquests were not as terrible as the first. For example, the pen portraits introduced at the beginning of those inquests, which enabled families to say something about the deceased, are a wholly welcome innovation, which I know has been taken up in other proceedings. That is good. But imagine, 25 years after the events, family members having to sit and listen for two years—that is how long it took—to the same old lies being told in court by those who were still being defensive, despite the intervening years and the vast amount of evidence. It was deeply traumatic for those families and very difficult for them to cope with. Many felt they had to go every day and listen. Twenty-five years later, they had to go every day and listen, and it took two years—pretty tough.
Being an interested party at the inquest gives the bereaved family no greater locus than that of those who may be at fault for the death or who, by natural omission, failed to prevent a death, even though bereaved families have lost far more. Often, the public authority is simply using lawyers to seek to avoid blame or to protect its reputation above all other considerations. To avoid liability or cost is sometimes the main aim of the public authority that behaves in that way. It does not necessarily think about the consequences for the family.
That was certainly the case with Hillsborough, although I think there was also an institutional unwillingness by South Yorkshire police to accept any criticism or blame for the Hillsborough disaster. Even though—or perhaps because—Taylor had found them to be at fault, they were intent on proving that they were not, blaming someone else. The lack of consequences and the impunity for those responsible for that approach meant that South Yorkshire police were able to continue with it for decades. Right up to the second inquest, they were still advancing the same case, which had repeatedly been shown to be nonsense, to the deep hurt and pain of the families. Had the chief constable been dismissed after Hillsborough, after Taylor, a lot of what happened might have been avoided: a lot of that institutional impunity and appalling behaviour, and 30 years of extremely expensive legal actions, might have been avoided.
I met the families after I was elected. I had known some of them before, in my capacity as a junior lawyer in Liverpool at the time. They told me that the inquest had overturned Taylor—that the inquest verdicts had overturned the result of the public inquiry. As a lawyer, I said, “Oh no, they do different things,” but actually the families were right, because that is what the police set about doing and did—that was the consequence.
Not until September 2012 and the report of the Hillsborough independent panel, which was a non-legal procedure, was the truth finally known and accepted by the vast majority of people in public life in this country. Before that, politicians and other people frequently said that Hillsborough was about hooliganism. It certainly was not, but that was the impression left by the first inquests. That is what can go wrong if things are allowed to go wrong.
Although the public authorities and the bereaved families in essence had the same status—that of interested parties—at that time and still do, the fact is that the police had far, far more resources at their disposal. They seemed able to use unlimited amounts of their public funding to pursue those arguments about who was really at fault and how it was not really them. Only when the second inquest came along did the families have exceptional case funding, which I am sure ended up being extremely expensive, but they were at last able to have equality of arms.
Equality of arms between interested parties in contentious and adversarial proceedings, whether for individuals or in a disaster such as Hillsborough, is essential to establishing and getting justice and the right verdicts, and to persuading families that yes, they have been party to a proper proceeding. Bishop James Jones, in his 2017 report on the lessons of Hillsborough, recommended what he described as the “proper participation” of bereaved families at inquests. That is vital.
The bishop’s specific recommendations are similar to some of those in our report. He recommended:
“Publicly funded legal representation for bereaved families at inquests at which public bodies are legally represented”—
not all inquests, but those where public bodies are represented. He recommended:
“An end to public bodies spending limitless sums providing themselves with representation which surpasses that available to families”,
and which does not have the same tests applied to it. He recommended:
“A change to the way in which public bodies approach inquests, so that they treat them not as a reputational threat, but as an opportunity to learn and as part of their obligations to those who have died and to their family.”
That is a fundamental shift in attitude, if it can be encouraged. He also recommended:
“Changes to inquest procedures and to the training of coroners, so that bereaved families are truly placed at the centre of the process.”
One still hears examples of appalling insensitivity, if I can put it that way, by coroners. I am not saying all by any means. Some coroners are excellent at involving and engaging families properly, but not all are.
Our report proposes an automatic entitlement to non-means-tested legal representation for bereaved people at inquests into mass fatalities. That is tremendously important, but we also recommend more broadly that the MOJ should by 1 October—that deadline has passed, Minister—
“for all inquests where public authorities are legally represented, make sure that non-means tested legal aid or other public funding for legal representation is also available for the people that have been bereaved.”
I know that the Government responded to that recommendation, albeit not particularly positively. Bishop James also proposed a statutory duty of candour for police officers; our report proposes it for the coroner service, and for the Government to consider whether that should be extended to all public bodies.
There should be an equality of arms: legal aid or some kind of funding support for families in these circumstances, along with a more extensively applied statutory duty of candour. Together, those two things are a substantial part of the Hillsborough law, the Public Authority (Accountability) Bill, which Andy Burnham proposed before he left the House and of which I was co-sponsor at the time. I believe that those measures, along with the Public Advocate Bill, which was prepared by Lord Michael Wills and me, and which I have again introduced in the Commons in this Session, would go a long way towards preventing what happened to the Hillsborough families from ever happening again to families of those bereaved in public disasters.
There have been public disasters since Hillsborough, and unfortunately there will probably be more over time. One thinks of Grenfell, and one can already see things going wrong with that. The families are not satisfied with the way that the inquiry is enabling them to represent their views, and one suspects that that disaster has a long way to run before getting to the end of all the legal proceedings that are likely to happen as a consequence of that terrible disaster. The proposals made by Bishop James and in my Public Advocate Bill are not just a relic of some past disaster that would have made a difference; they will, if enacted, make a difference in future to families in that terrible situation.
It has taken the Hillsborough families 32 years to get to the position they are now in, where there is general acceptance—the truth has been officially acknowledged. They have had a measure of justice, in respect of the second inquest’s verdicts of unlawful killing; they have not had accountability for those who caused the disaster, and who over all these decades have sought to blame those who died and the footballs fans in the ground that day, rather than themselves. The Hillsborough families have not had accountability, and if we were to talk to them, they would not say that they are totally satisfied with the outcome, even after 32 years, because nobody has been held to account for what was done—the unlawful killing of 97 people. That cannot be a good day for justice in this country, if that is the outcome after all these years.
In what I would say was a somewhat disappointing response to our report—I think the hon. Member for Bromley and Chislehurst was harsher—the Government have effectively played for time. I take the view that if they are playing for time, they have not completely said no to all the recommendations that they have played for time on. This is where the Minister comes in. This is where he can be a can-do Minister—a will-do Minister. The Government have accepted only six of our 25 recommendations.
I share some of the misgivings about the way the coroners system is working. It is not very effective in certain cases, and it has not been remotely effective in the case of the Shoreham air show victims. There are all sorts of reasons for that. The relationship between the AAIB, the police and the CAA really needs to be looked at in detail. Giving some form of closure, information and comfort to the families of those who lost their lives must be a priority, yet they seem to come at the back of the queue in such considerations.
Something I was involved in to start with was the question of who was going to represent the families at the inquest. The original inquest opened on 2 September 2015, and was adjourned until March 2016. There were pre-inquest review dates, further pre-inquest review dates were set, and a full hearing was originally due in March 2017. That was delayed and postponed, delayed and postponed, and finally in May 2020, it was announced that the hearing would be postponed again until 2021. We are still waiting, and I hope that it will happen before too long. Throughout all that time, the coroner for West Sussex, Penny Schofield, has played a remarkable role and sought at every juncture to keep engaged with the families and keep them in touch as much as possible.
However, it was not clear whether those families would get legal representation paid for by legal aid at the outset. I hope that is now going to happen. It was estimated that 18 public bodies would be represented at the inquest, all of which would get public funds for legal representation. The only people who would not automatically receive funding for legal representation would be the families of the victims—the most important part of that inquiry, one could say. I share the concerns of the Select Committee and of Members who have spoken today: we must ensure that in tragedies such as this, legal representation is automatically available for the families, and the coroner system has to work more efficiently and effectively, not drag on for many years, as it has in this case.
The second case of “dragging on” I want to raise is that of my private Member’s Bill, the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, which was passed by Parliament in February and became law in May of that year. Two of the measures in that Act have now come into practice, the first of which is civil partnerships between opposite-sex couples. The first of those civil partnerships happened on new year’s eve 2019, and they have been taken up by many couples and have been a great success. The second measure, which came into effect earlier this year, is the inclusion of mothers’ details on marriage certificates, a historical anomaly going back to 1837 that I am glad to say this Act corrected.
However, two parts of the Act have not come into effect, the first of which is coroners’ investigations into stillbirths, dealt with in section 4. That section requires the Secretary of State to
“make arrangements for the preparation of a report on whether, and if so how, the law ought to be changed to enable or require coroners to investigate still-births”,
and states that
“The Secretary of State must publish the report prepared under this section”
and that
“After the report has been published, the Lord Chancellor may by regulations amend Part 1 of the Coroners and Justice Act 2009 (coroners etc) to—
(a) enable or require coroners to conduct investigations into still-births”.
Effectively, due to interpretation of the law, coroners cannot investigate deaths until somebody is deemed to have lived, and a baby who is stillborn is not deemed to have lived and therefore does not fall within the remit of the coroner. However, in some cases in which children have been stillborn, serious questions need to be asked. That is why, after representations from many coroners—including my own—and various baby charities, I included that clause in the Act. It is referenced on page 31 of the Justice Committee’s report, urging the Government to get on with publishing that report.
It is slightly odd that I am once again having to go over the reasons why this provision is so important, because we made the case for the Act in the long time it took to get it through Parliament. It was described as the most complicated and comprehensive private Member’s Bill ever to make the statute book, but it was widely supported in this House by Members from all sides, in the Lords, and by many baby charities. The Select Committee on Health and Social Care also included a reference to the Act in a recent report, and it has been supported by my right hon. Friend the Member for South West Surrey (Jeremy Hunt), the former Health Secretary who is now Chair of that Committee. The reason is that, according to the charity Sands, an estimated 500 babies die or are left severely disabled because of an event during their birth that was either not anticipated or not well managed, and there is currently no independent investigation of those intrapartum deaths. That, again, leaves many questions unanswered for many parents.
There have been many improvements to the way the NHS has been dealing with stillbirths, and the Government are to be congratulated on that. Various investigation measures have been brought in, but none of them are independent. They are all within the NHS. That is why it is still deemed necessary that the coroner, in exceptional circumstances where there are unanswered questions, should have the power to investigate. The Minister was involved in my private Member’s Bill and he was very helpful with and supportive of it, but I ask him, when is the report going to be published?
I had a meeting with the Secretary of State for Digital, Culture, Media and Sport, the right hon. Member for Mid Bedfordshire (Ms Dorries) when she was Health Minister as well as this Minister’s predecessor in the Ministry of Justice, in which it was suggested that various details of the consultation would be published before the summer. However, the Department was loth to go ahead with measures because they were worried about the compulsory inquest by coroners causing trauma to parents. I am afraid I do not accept that; it was parents who were asking for these powers.
I am particularly concerned about the sunset provisions in the 2019 Act. Section 4(6) reads:
“No regulations may be made under this section after the period of five years beginning with the day on which the report is published”.
Time is ticking away. I urge the Minister to investigate where the report is. It was never sent to me, so was it published on the quiet? Can we see the full result of the consultation responses? Will he go away and look at when we can have regulations brought forward, which the vast majority of people have agreed is necessary, so that the third important part of my 2019 Act can come into force? It will give great comfort to many parents who are concerned that they had a stillborn child in circumstances where many questions have not been answered.
In some cases that results in legal action taking place. The provisions in the 2019 Act will cut down on that sort of legal action and hopefully give quicker and more effective answers to those parents who have gone through the traumatic experience of suffering a stillbirth. There are good reasons why the law was passed by the House. I see no good reason why it has not become effective. Can the Minister respond as to when we can expect the good news?
A whole chapter of that Bill is to do with the coroner system, which provides an opportunity to address some of these issues. Unfortunately, the current proposals in the Bill are pretty minimalist and, if they do anything, they tend to restrict transparency and accessibility rather than the other way round, which is certainly not what the Select Committee was looking for. However, let us not let this be a missed opportunity. There is time to get it right, and whether it is in this House or in the Lords, there is an opportunity for the Government to bring forward some of their responses to the Committee that they said were delayed.
I counted at least seven major omissions from the Government’s response, and many of them have been mentioned already by the contributors. One is the provision of non-means-tested legal aid, which might be the most central of them. One is appeals on coroners’ decisions. One is the issue of pathologists’ fees. One is the national coroner service, which the report recommends. One is the inspectorate, which the report recommends. One is a complaints procedure. The last is the independent office. Some of those are rejected out of hand, such as higher fees for pathologists and the national coroner service. With others, we are told that the Government will consider them—not now, but they are not saying not ever—or simply that they are not responding at present. It is quite unusual that we had a response along the lines of, “Why are you bothering us with this report now? Don’t you know we’ve got a Ministry of Justice to run?” I do not think that is an adequate response.
I do not have time to go through all the issues in detail, but let me mention one or two of which I have had personal experience. It is right that the Government appear to be shifting some way on the issue of legal aid, but they are looking at it from the wrong end of the telescope. What is clearly needed is not to make some adjustments to exceptional funding and early help, but to state the situation categorically in situations where there are unrepresented families—they are almost always families—in proceedings where there are state actors who are well funded and represented.
In my time at the Bar, I appeared at many inquests, but I do not think I ever appeared in one where 18 state bodies were represented, as the hon. Member for East Worthing and Shoreham told us about. However, I have certainly been at an inquest where there were at least six state bodies and a family who either did not have representation or had pro bono representation, and neither of those is sufficient, frankly. I hope we can get an answer to when we will see the proposals coming through and when we will have a response to the bishop’s report.
On the issue of appeals, I cannot understand why this is probably the only area of law where there is no right of appeal. That seems an anomaly.
The prevention of future deaths reports have been significant in many cases and are a welcome innovation in the process, but they do not do the job that the independent office would do—what INQUEST calls in the report the national oversight mechanism. Again, I have personal experience of this. I have done a lot of work on fire safety over the past few years, and there have been a number of inquests around the country into situations where people have sadly died because of electrical fires and other fires that have occurred, but the dots have not been joined up. There may have been an individual report, but it has not been sufficient to carry it through into national policy.
The conduct of coroners is rather dismissed out of hand in the Government response, but it is a serious issue. I have taken part in a Westminster Hall debate with representatives from across west London about the west London coroner service. There have been allegations of appalling conduct, but there is no real mechanism for addressing them, which needs to be examined. I also think that the Government should look again at the idea of a national coroner service.
I know the Government will be concerned about cost in some of these areas, but at least they should investigate the price and decide whether there is merit in some of the recommendations here. The recommendations should not be just left to rest.
I mentioned the Bill that is coming up, which includes provisions for discontinuance of investigations, inquests in writing and remote attendance inquest hearings. I will be interested to hear how the Minister defends those changes, but none of them are about the fundamental reforms we have suggested. Indeed, he may want to look at the responses from the Royal College of Pathologists, a series of bodies representing victims and, indeed, from Tom Luce himself about the opportunity presented in the Bill to make some of these changes.
I do not want to exceed the 10 minutes I have been given, Sir George, so I will conclude with this: in responding today, in the time available, I am sure the Minister cannot cover every recommendation in detail, but perhaps he could at least do two things. First, perhaps he could articulate more clearly the Government’s response to us and what the Government’s policy is towards coroner services. There is a common theme of consistency in the report, whether we are talking about appeals, the independent office, the inspectorate or the national coroner service: consistency. How do we get a high standard of consistency in the decisions being taken in coroners’ districts around the country?
Secondly, and more immediately, can the Minister say when the response to the bishop’s report will be published, when the legal aid guidance will become clear and whether he will meet the ask in the Select Committee report on that, and whether he will consider bringing forward in the Bill some of the issues that the Government have not currently ruled out—appeals, inspection, and an independent office or national oversight mechanism?
If we can go that far, that will address many of the Committee’s concerns. If we do not, and we are left with the Government’s response as it is, they will have singularly failed again to address a service in which problems are being highlighted every day and every week by hon. Members on behalf of their constituents around the country, and in which people, often in extremis, are left to their own devices to try to represent the interests of their loved ones when they should be getting assistance from the state.