Public Bodies Bill [HL]

Lord Lester of Herne Hill Excerpts

Tuesday 14th December 2010 Lords Chamber

[Lord Lester of Herne Hill]

I have not been able to take part in this Committee since the first day, when I stood on my head and managed to vote against my own amendment. My good and noble friend Lord Pannick managed to win my amendment while I loyally supported the Government. I do not intend in the rest of these debates to stand on my head again, and I have made that clear to the Minister. I took part in the debate that led to the creation of the chief coroner and I agree with everything that has been said on the subject, especially by the noble Lord, Lord Ramsbotham.

There is a further reason why the amendment is very important: I refer to our obligations under the European Convention on Human Rights, which have been referred to. We have been told again and again by the European Court of Human Rights that we need an effective and independent system of investigating deaths, especially the deaths of alleged agents of the state. The noble Lord, Lord Ramsbotham, made it absolutely clear why, during the passage of the legislation under the previous Government, he, I and many others pressed for the creation of a chief coroner and an effective investigation process independent of the state.

I am now in a position where I have to act under some party constraints, which other noble Lords do not. However, I could not support the Government were they to resist this amendment and I very much hope that the Minister will show the wisdom and sense of proportion required on an occasion such as this.

[Lord Christopher]

My Lords, I support the amendment from the point of view of a layman who unexpectedly found himself consulted—if that is the right word—on an inquest. I suppose that all of us hope never to be the subject of an inquest, and very few of us wish to have any reason to be directly involved in one. The case was brought to my attention a couple of years ago—the noble Lord, Lord McNally, has a file on it in his office containing evidence from myself, the complainant and the Member of Parliament for the poor man who was deceased.

It was, in my judgment, a disgraceful occasion. The death was tragic and, because of the number of agencies and parties involved, the case had taken several years to come before the coroner. As a reasonable person looking at what was done by the coroner at the inquest, it seemed to me that he did not do his job properly. He allowed evidence that seemed irrelevant to what had been said before and that was hostile to the complainants, and he did not disclose what he knew: namely, that the parties involved in the actions that led to the death had admitted their role and made a settlement. That evidence was not allowed before the jury. As I said, I had never had any previous involvement of any shape or form with an inquest but it seemed to me that something was not right in the state of Denmark. However, the solution that has come from earlier discussions on the Bill in this House seems to offer some hope that things will be put right.

I understand that New Zealand, which, like many in our erstwhile empire, followed in our steps with its coroner system, has for some time had precisely what is sought in this Bill. I understand that a coroner from that country was here recently and was amazed that we have not gone down this route. It is appalling that ordinary people who may not be satisfied with the results of an inquest can only, as the noble Baroness said, have a judicial review. There is no other avenue for them to complain effectively.

Lastly—this may be of some comfort to the Minister—having looked at this particular case, I believe that some way can be found of dealing with the situation rather more economically. Where there are a number of official agencies—using that term in the broadest sense—it may well be possible, through the good offices of a senior coroner, to find a way of ensuring that inquests take less time than they do today, as that, again, is pretty disgraceful.

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[Lord Lester of Herne Hill]

As the noble Viscount was good enough to refer to me, does he accept and agree that under the European Convention on Human Rights we have an obligation to ensure that there is an effective, independent system of inquests, independent of ministerial interference, and that the previous Parliament, in creating the system that is now threatened, believed that it was giving effect to that convention obligation?

[Viscount Eccles]

My Lords, I fully agree that the separation of the powers of the Executive from those of the legal profession and our courts is absolutely central to our constitution. Unfortunately, this Bill does not affect that separation because the chief coroner does not have that independence. If one reads the terms under which he is employed and what he has to do to satisfy the Lord Chancellor, the real power has been left with the Lord Chancellor.

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[Lord Newton of Braintree]

My Lords, I rise to speak briefly. Having supported my noble friend Lord McNally as loyally as I could last night, I find myself in a slightly more difficult position today. I really do think that we need some sensitive answers to the questions that have been raised in this debate. I have a peripheral historic interest in that when I was chair of the Council on Tribunals, late of the Administrative Justice and Tribunals Council, I was consulted in the course of the review which started off the whole process of reforming coroners. There may have been some thought at that time of making the coroners’ court arrangements a tribunal. We have not gone down that path, but it leads me to what I want to say.

Whether it is a tribunal, a court or sui generis, it is essentially part of the judicial process. That is why I think that the key issues in the debate are those that were raised by the noble and learned Baroness, Lady Butler-Sloss, and a number of others, including the noble Lord, Lord Pannick, about the need for independence. We are just seeing the full establishment of a Tribunals Service, part of whose merit was that it was led, for the first time, by a senior judge. We had the Lord Chief Justice as President of Tribunals, to whom the noble and learned Baroness, Lady Butler-Sloss, referred, and judicial leaders in different ways from all parts of the judicial system. Why is this being taken out and left to civil servants in the Ministry of Justice? I cannot see any answer to that question and, unlike the noble Lord, Lord Harris, with most of whose remarks I agree, I do not believe the Ministry of Justice could do it however much money and officials it has. It is an issue of principle.

I will not go quite as far as my noble friend Lord Lester and say that if the Government will not accept the amendment, I shall vote against them. However, if we are just given an intransigent response that says that we will not even take this away and look at it, I shall be in great difficulty.

[Lord Lester of Herne Hill]

My Lords, I ought to point out that I said I would abstain.

[Lord Bach]

We should be very grateful indeed to the noble Baroness, Lady Finlay, for raising this matter. We on this side of the Committee support her amendment because we think it is sensible and right. As the Minister, along with my noble friend Lord Tunnicliffe, who took the Coroners and Justice Bill through this House, we understood clearly that reform was considered vital and not before time. The coronial system had failed to keep up with the demands of this century. There were flaws that were evident from the Shipman inquiry and other reviews. Both the inquiry and the reviews recommended a fundamental overhaul of the current arrangements and everyone agreed that reform was essential and urgently needed. After some time listening to evidence and considering the options, a consensus emerged and the Bill came to Parliament. The roles of the chief coroner and the chief medical adviser to the chief coroner sat at the heart of the reforms to which Parliament agreed. The chief coroner is intended to provide the necessary oversight, training and, above all, leadership for the coronial system and to be at the head of the appeal framework for people affected by the decisions that coroners make. While there was substantial debate in this House on many aspects of this part of the Bill, whether there should be a chief coroner or a chief medical adviser was, frankly, not an issue. Indeed, there was strong support on all sides of the House for these reforms.

The Government’s decision to abolish these positions came as a shock to all those involved in the coronial reforms. Considerable concern has been expressed by bereaved service families and those who have lost loved ones who have died in custody, and many noble Lords will have received correspondence from groups and individuals. On behalf of everyone, I thank those who have bothered to write to us, including the Royal British Legion—I declare an interest as an individual member—and the organisation INQUEST for making the issue clear to the House in considering the Bill.

It is worth putting on record what the distinguished director-general of the Royal British Legion said when hearing of the Government’s decision. He stated:

“We believe this decision would be a deep betrayal of bereaved Service families … The Legion campaigned long and hard as part of its campaign to honour the Military Covenant for reforms to the inquest process—to guarantee bereaved Service families a modern, thorough and transparent investigation”.

He concluded:

“The Chief Coroner’s Office and role are absolutely central to this”.

Will the Minister clarify whether it is really argued by the Government that people’s concerns, which are centred on having inquests that are fair and just, will be assuaged by taking in-house the role of the independent chief coroner? The argument that the responsibilities of the chief coroner can be taken inside the Ministry of Justice and somehow, at the same time, be perceived to be independent of government is, frankly, fatuous; it is a laughable argument. Coroners are intended to be judicial officers, independent of government and impartial. The leadership of these bodies obviously warrants similar independence. The public of course expect justice to be done, but also justice to be seen to be done. Indeed, it is for this reason that a distinguished judge had been appointed as the prospective chief coroner before the Government’s edict was announced.

There was a clear consensus about the role of the chief coroner and his team during the passage of the Bill and everyone looked forward to the start of the new framework in 2012—and now this. Surely, at the very least this proposal must leave a bad taste in the mouth; at the most, it is surely constitutionally inappropriate for important legislation, passed as recently as November 2009, having been through both Houses—a great amount of time was spent on it in this House—to be abolished by a mere affirmative order in council. That is what the House is being asked to approve today.

Why? It surely cannot be only a matter of costs. The noble Baroness skilfully took apart the alleged costs, as did the noble Lord, Lord Ramsbotham, in his contribution. Moreover, as I understand it, the Government have already made it clear that this Bill is not really about cost savings and the chief coroner comes well within the Maude test for public body reform. My noble friend Lord Harris referred to the charter for bereaved people. The Government say that it will survive, but the powers of the chief coroner were central to the satisfaction and comfort of people who had been bereaved. And now, if the Government have their way, there will be no chief coroner.

We all know that Governments of all colours sometimes latch on to a policy and will not come off it when it is obvious to the world and even to themselves that it is wrong. Indeed, the more sensible the criticisms, the more likely are the Government to stick to their guns. Sometimes it is the role of Parliament to step in and save Governments from their own macho tendencies. This is one of those occasions. We support the amendment of the noble Baroness, Lady Finlay, because it is so obviously right and so obviously common sense.

[Lord Taylor of Holbeach]

My Lords, I thank all noble Lords who have spoken for expressing the Committee’s views so clearly. I thank particularly the noble Lord, Lord Bach, for putting the creation of the post of chief coroner in its historical and political context. Above all, I thank the noble Baroness, Lady Finlay, for tabling the amendment and giving the Committee the chance to debate this hugely important issue.

Throughout the passage of the Coroners and Justice Act 2009, the noble Baroness demonstrated her absolute commitment to improving the coronial system. Her amendment is another strong demonstration of that and provides a welcome opportunity for the Government to reaffirm their commitment to that same aim. I acknowledge that it seems counterintuitive for a Government to state on the one hand their commitment to improving the coronial system and, on the other, their plans to abolish the post of chief coroner. However, I reassure the Committee that when the detail of the Government’s proposals are examined it will be seen why in the current economic climate we have no choice but to abolish the office and transfer its key functions. It represents the best and most cost-effective option for realising many of the improvements that were envisaged in the creation of the post.

The noble Baroness and other noble Lords have given eloquent testimony as to some of the weaknesses of the current system. It is an analysis with which we agree, and we are absolutely committed to addressing those weaknesses. Paradoxical as it may first appear, that is precisely why we must abolish the office of chief coroner, thereby allowing the Government to transfer key functions away from an office which is currently unaffordable and facilitating genuine improvements to the coronial system. It is right that we should justify our doing this and, in bringing forward the amendment, the noble Baroness has acted as the Government’s conscience, but the debate has shown that a consensus exists about the need to improve the coronial system. I am grateful that the noble Baroness’s amendment has established such a consensus on reform within the Committee, and I would seek to be a part of it.

The Coroners and Justice Act 2009 envisaged these improvements being led by a chief coroner. The Government are not suggesting that this is necessarily a bad model, although we do not believe that it is the only one. For the chief coroner to have achieved these improvements would have required substantially new investment, as indicated by the noble Baroness herself, of some £10 million at start-up and £6.5 million each year thereafter. The Government are facing severe cutbacks, meaning that the office is not financially viable in the current economic climate. Let me reiterate that this is new funding and a significant amount of money that must be found. In the current environment, there is simply no prospect of that funding being available. The noble Lord, Lord Ramsbotham, asked about this. An experienced resource dealing with coroner’s policy exists within the Ministry of Justice. We accept that it means that some work, such as guidance, may take a little longer to produce without the dedicated resource provided by the office of chief coroner. The actual functions that we propose to take forward will be deliverable within the existing resource of the Ministry of Justice. It should be recognised that setting up a new office always entails costs that are not there when the existing resource is being used.

In conversations with noble Lords, I have been asked whether we should leave the chief coroner on the statute book until such time as funding was available. Indeed, that was a question that I asked myself when I first considered the issue. However, I can tell the Committee that this is not a viable option. Many of the improvements that we wish to make are vested in the office of the chief coroner. Therefore, if we want to make real improvements to the coronial system, it is absolutely necessary and right to transfer those functions to another body. The abolition of the office through the Public Bodies Bill does precisely this. Not to do so will prevent a number of improvements to the system. This amendment, leaving the role latent, would mean that the service would continue to operate with many of the same flaws that noble Lords have highlighted.

We have a good set of proposals to improve the coronial system and address those issues that noble Lords have raised. We will consult on a new charter for the bereaved in the new year. It will set out standards of service that coroners are expected to deliver to bereaved families and others, including the right to be kept informed and participate in the inquest process. The charter will also set out how people may complain if these services are not delivered.

I refer to comments made by the noble and learned Baroness, Lady Butler-Sloss. It is worth noting that the only statutory guidance provided for in the Coroners and Justice Act 2009 was to be issued by the Lord Chancellor. That is the provision under which a charter will be produced, so it is not clear that this House felt that it was inappropriate for the Lord Chancellor to issue guidance.

I turn to the whole issue of judicial independence, which was raised by the noble Lord, Lord Pannick, and many other noble Lords, including the noble Lord, Lord Bach. There is a suggestion that judicial independence is compromised by the involvement of the Ministry of Justice, but the chief coroner was envisaged to have a number of functions that included some of a judicial, leadership and administrative nature. Discussions are ongoing with the senior judiciary as to which functions of the chief coroner should be transferred to whom. The Government fully recognise that judicial independence and functions, including rule-making and deployment, are a matter for the judiciary and not necessarily for the Ministry of Justice. In the same way, discussions are also ongoing with the senior judiciary on whether cost-neutral judicial functions may be transferred from the chief coroner to another body. However, the key reason for not proceeding with the national leadership office remains that no additional resource is available to fund the office of chief coroner.

As my noble friend Lord Eccles pointed out, the chief coroner would have had few powers of direction and those he would have had we intend to take forward. I confirm that discussions with the senior judiciary about where these powers should reside are ongoing. The important leadership functions include: more efficient arrangements for the transfer of cases from one coroner to another; transferring inquests in the case of service personnel deaths overseas to Scotland—at present, as noble Lords will know, all such inquests must be heard in England and Wales—and any deaths overseas to Northern Ireland; the making of regulations about the training of coroners and their staff; and, the strengthening of statutory monitoring of coroners’ caseloads and backlogs, including the deaths of military personnel.

The main function of the chief coroner that will not be taken forward is that of a new appeals system. I know that a number of noble Lords have concerns about a lack of accountability and transparency in the absence of an appeals system operated by a chief coroner. In the current economic climate the costs are, I am afraid, not justifiable but it is important to note that people may still challenge the outcome of an inquest by judicial review and that an application to the High Court for a second inquest to be held can still be made by or with the authority of the Attorney-General. Complaints about the conduct of the coroner will continue to be made to the Office for Judicial Complaints.

My noble friend Lord Lester is greatly interested in the human rights implications of measures under the Bill and I respect him greatly. The coronial system has developed and will continue to be in compliance with human rights requirements, especially Article 2 on the involvement of the state in death. The absence of the chief coroner will not undermine this.

Perhaps I may return to a particular point made by the noble Baroness, Lady Findlay, when she questioned where the leadership might lie to look at public safety issues. Tackling public safety is delivered directly through reports from coroners to authorities, which can then take action to address problems. These rule 43 reports, as they are called, are sent to the Lord Chancellor, collated and published to promote public safety and they require a public response. The Act brings rule 43 from subordinate to primary legislation, promoting the importance of action to prevent other deaths.

I turn to my noble friend Lady Miller of Chilthorne Domer. I thank her for referring to Section 16 of the new Act. That is in fact a provision requiring the chief coroner to report investigations not completed within 12 months, not an enforcement power.

The important changes that the Government want to take forward currently sit with the chief coroner and his office. In order for the functions that I have outlined to be taken forward in the most practical way, we must abolish the office of the chief coroner. With no prospect of funding to enable the position to function, this amendment will prevent the improvements to the coroner system by keeping the body on the statute books. Today’s debate has clearly demonstrated that we agree improvements are necessary. We consider that, given current financial restraints, taking this approach offers the best value for money for the public if we are to deliver significant improvements to bereaved families and other interested people. I have met—

[Lord Lester of Herne Hill]

I am grateful to the Minister. I am also grateful for the kind remarks that he has made about me personally, which are excessive, but would he accept that public expenditure problems are no justification for any undermining of the independence and effectiveness of the inquest system, whatever the cost, because we have international obligations to secure that? Does he also accept that that is the result we thought we were achieving during the last Parliament when we passed the Bill?

[Lord Taylor of Holbeach]

I thank my noble friend for that intervention. Nothing that I have said talks about the undermining of the inquest system; we are talking about enhancing it. We are seeking to improve the service. We recognise that it is currently inadequate, and we need to find mechanisms within the Government’s current financial restraints to take this matter forward.

I was just saying that yesterday I met Mr Chris Simpkins of the Royal British Legion. I said to him that I hoped that between now and Report we would have an opportunity for further discussions about this proposal, and I say the same to the noble Baroness, Lady Finlay, who referred to the discussions that we have had on the proposal in the Bill. I think that noble Lords will understand that it is likely to take some time. We know that the Ministry of Justice has plans and proposals to bring forward in connection with the coronial service. This is an opportunity for the Ministry to demonstrate its determination to deliver what it is talking of.