Government aims to redress the balance in legal funding and representation at inquests

7 December 2023

Public bodies should not be able to spend “limitless public funds on legal representation” at inquests, the government has said in its response to the report on lessons arising from the experience of the Hillsborough disaster families.

The Ministry of Justice will also look at removing the merits test for legal aid for inquests following major incidents – but not all inquests.

The report commissioned from the Right Reverend James Jones, former Bishop of Liverpool, was published in 2017. Lord Chancellor Alex Chalk today apologised for the delay in the government’s response, only some of which was down to having to wait for the conclusion of criminal proceedings.

One of the points of learning in the report was that the state must ensure the “proper participation” of bereaved families at inquests at which a public body was to be represented, including ensuring the families had legal aid and that public bodies should not “treat public money as if it were limitless in providing themselves with representation which surpasses that available to families”.

The response said: “As Bishop James’ report shows, the Hillsborough families’ experience of the inquest process was one that felt deeply adversarial as legal teams representing the state sought to put their reputation first.”

The families received no public funding for representation at the first inquests – they paid for a barrister themselves – while the then Home Secretary Theresa May made bespoke funding available to them for legal representation at the second inquests.

Bereaved families at inquests may receive legal aid through the exceptional case funding (ECF) scheme. In January 2022, the Ministry of Justice removed the means test for legal representation at inquests, and in September this year, the means test was also removed for applications for legal help.

But the government said it recognised that more was needed in light of the report’s recommendations.

“The MoJ will therefore build on the removal of the means test for ECF at inquests by consulting on expanding legal aid so that it is available to bereaved families at inquests following major incidents where the Independent Public Advocate is deployed, and following terrorist attacks.

“This means that no family involved in such cases in future will have to face an inquest without proper legal representation and would not need to apply for ECF.”

The Independent Public Advocate is a new role being created to support those affected by major incidents.

The response said the government recognised that, where the state was legally represented at an inquest, it could “add to the adversarial experience” and exacerbated the ‘inequality of arms’ that the bishop had highlighted.

“It is right that public bodies have access to legal representation at inquests and that individuals can access legal representation in situations where their job could be at risk. But public bodies should not have limitless access to public funds to spend on legal representation, and their spend should be proportionate compared to that of bereaved families.

“The government will therefore set out, through guidance, its expectation that central government public bodies and their sponsoring department publish their spend on legal representation at inquests and inquiries, and reaffirm that this spend should be proportionate compared to that of bereaved families and should never be excessive.”

But it said there were “practical difficulties” in placing a cap on the number of lawyers that could act for the state: “Different bodies may have different interests and positions, and it is not always possible for one lawyer to represent some or all of these without a conflict of interest arising.

“While we do not consider there should be a numerical cap on the number of lawyers who can represent public bodies at inquests, we will continue to keep this issue under review.”

The first point of learning in Bishop James’s report was a Charter for Families Bereaved Through Public Tragedy or, as it is now known, the ‘Hillsborough Charter’. This drew on the principles underpinning legislation drafted on behalf of the families, the so-called Hillsborough Law – focused on public authority accountability – but the government said it was not going to introduce this.

Rather, it has signed the charter: “The government strongly agrees with the principles of the Hillsborough Charter and the importance of organisations acting responsibly, honestly, and transparently following a major disaster. We have signed the Hillsborough Charter, signalling our ongoing commitment to being open to challenge and reaffirming our commitment to lasting cultural change.”

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07 Dec 2023

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