Key takeaways
Bill seeks parity of arms for families
Non means-tested legal aid proposed when authorities involved.
Public bodies must justify legal representation
New 'necessary and proportionate' test governs inquest instruction.
Expanded legal aid likely to shift inquests
More represented families may increase formality and legal debate.
The Public Office (Accountability) Bill, designed by the lawyers who represented the families in the fresh Hillsborough Inquests, aims to secure non-means tested publicly funded legal representation for bereaved families at inquests. The intention of the policy is described as 'Parity of Arms'.
Necessary and proportionate use of legal representation
The Bill would introduce criteria for public authorities looking to instruct legal representation at inquests and inquiries. Schedule 6, Part 1-3 would amend the Inquiries Act 2005 and the Coroners and Justice Act 2009 so that legal representation can only be instructed if necessary and proportionate.
To satisfy the necessary and proportionate test, public authorities must have regard to:
the comparative position of affected persons in respect of their means to engage legal representatives;
the nature and extent of the authority’s obligations to assist the inquiry in respect of disclosure and other matters;
the importance of the issues under investigation and the need for those issues to be investigated fairly, proportionately, expeditiously and cost-effectively.
Inquiry: It is difficult to see a public body being unrepresented at an inquiry. On the face of it, inquiries are always likely to satisfy (b), given the amount of disclosure they usually require, and (c), given the issues that inquiries tend to explore. For example, issues of significant public concern attracting widespread media coverage and the wider interaction of different public bodies and regulatory agencies.
Inquests: if a public body has been made an Interested Person (IP), combined with the wider duties to be placed on public officials to act with candour, transparency and frankness (read our earlier Part 1 and Part 2 articles for more information), it is likely that there will be sufficient grounds to satisfy the test for the instruction of legal representation as being 'necessary and proportionate'. In our experience, public bodies already consider very carefully when to engage external legal representation to ensure public funds are appropriately spent.
Practically speaking, if they do not already do so, public bodies will need to have clear processes in place to consider the specific factual matrix and issues to be investigated in each individual inquest to carefully assess whether legal representation is appropriate. It would be wise to document a clear rationale for this decision in the event that the decision is challenged.
Lawyers attending Inquests for families, organisations and individual witnesses must remember that an inquest is not adversarial; it is a fact-finding enquiry. All lawyers are there to assist the coroner with their investigation, not to argue a case as seen in the civil and criminal courts.
Legal aid – current position
At present, the legal aid system for inquests offers legal advice and advocacy. It is currently available to bereaved families in all inquests, subject to a means and merits test, although this can be waived through Exceptional Case Funding which is granted where there is risk of breach of the European Convention on Human Rights or wider public interest.
Legal aid – looking ahead
The intention is to remove the means tested element of the test. In the Bill’s fact sheet, it is stated very clearly that:
'[T]o be eligible for legal aid (legal help and advocacy) families will only need to demonstrate that a public authority is an interested person at the inquest'.
The impact assessment estimates that this will cost £65million-180million per year. There is a further estimated cost of up to around £3million per annum of associated operational costs to the Legal Aid Agency. Where this additional funding comes from is yet to be clarified.
Independent providers of health and social care
The draft Bill’s the new duty of candour would cover private providers of health and social care when they are providing care under NHS contracts, solely in respect of these public functions. A question will arise when a private body has been given IP status and is undertaking 'public functions' – will that be sufficient to meet the requirement of 'public authority' and enable the family to access legal aid funded legal representation?
Conclusion
Practically speaking, our experience is that health and social care organisations already have clear processes and robust decision making on when to instruct lawyers at inquests and inquiries. The main impact will be that inquests may become more legalistic with increasing numbers of families being legal represented. Inquests are supposed to be inquisitorial with lawyers there to help the coroner investigate the death. It is likely that that they will become more adversarial with, for example, increasing questioning of witnesses and submissions on legal issues and conclusions,
Follow Hill Dickinson as we cover the progression of this bill through parliament. Our healthcare lawyers are carefully considering the implications of this bill to advise you how best to prepare.
This article was co-authored by Associate, Caroline Watson.
