Historically, inquests have been marked by stark imbalances. Legal aid for families is limited in scope and, for advocacy at inquests, is only available through Exceptional Case Funding (ECF). Bereaved families often face the daunting prospect of navigating complex legal proceedings alone, while public authorities appear with teams of lawyers funded by the state. There is also concern that public authorities may approach inquests defensively, rather than supporting the inquisitorial nature of proceedings, potentially hindering a Coroner's ability to establish the facts surrounding a death. This disparity was painfully evident during the Hillsborough inquests, where families were unrepresented while senior police officers had multiple legal teams.
The solution
The Bill delivers on the Government's 2024 manifesto pledge to provide non-means tested legal aid and advocacy for bereaved families at inquest proceedings where public authorities are involved. Key measures include:
- Automatic legal aid for bereaved families when a public authority is an Interested Person (IP).
- Limits on representation allows for only one family member per case to be eligible for legal aid for advocacy, keeping proceedings focused and costs proportionate. Additional family members may apply for separate representation via ECF if necessary.
- Statutory guidance provides that public authorities must support the inquisitorial nature of inquests and engage lawyers proportionately.
- Coroners can challenge a public authority's conduct if it undermines fairness.
The impact
This milestone is about more than money – it is about justice for families. This movement will allow families access to the legal support required to participate fully and effectively throughout inquest proceedings, while public authorities are held to higher standards of transparency and proportionality. This development will introduce a different approach to investigating deaths that is intended to provide a more balanced and transparent justice system.
Risks associated with new provisions
The Bill's Impact Assessment for Parity of Arms measures highlights several risks:
- Rising Costs – estimated at £65 to £180 million per year, with potential higher costs of more than one family members claim legal aid.
- Increased Litigation – easier access to legal aid may lead to more civil claims after inquests, which has potential to raise costs for public authorities and legal providers.
- Market Strain – the increase in eligibility for legal aid stemming from these changes could strain the market's capacity, making it harder for families to find representation.
- Cost Sharing – while public authorities may see reduced legal costs as a result of the provisions requiring proportionality, this benefit may be offset by new obligations arising from cost-sharing.
Monitoring
To keep the scheme on track, the Ministry of Justice and the Legal Aid Agency will monitor the operation and volumes of families accessing the scheme, ensuring expenditure remains within projections. Regular reviews will ensure the scheme remains robust, effective, and true to its objectives.
Conclusion
The Parity of Arms measures introduced through Hillsborough Law represent a significant step towards fairness and transparency in the inquest process. By providing non-means-tested legal aid to bereaved families and setting clear expectations for public authorities, the Bill aims to ensure that all parties can participate fully and effectively in the search for truth. While the financial implications are substantial, the anticipated benefits for families, the justice system, and society at large are considerable, promising a more equitable and robust approach to investigating deaths involving public authorities
For further information on the Public Office (Accountability) Bill, please contact Steffan Groch and Simon Belfield.
