The tragedy of Hillsborough and its wider impact

Published: 7 Dec 2023

In November 2017, Bishop James Jones, Bishop of Liverpool published his report “The patronising disposition of unaccountable power”. The report drew on the experiences of the families who lost their loved ones at the Hillsborough football stadium. The first Hillsborough inquest was heard between 1989 – 91, those families fought and eventually secured a second inquest which was heard between 2014 – 16.

Bishop Jones’ report was and remains important not just because it gave a public voice to the bereaved, a vehicle by which they could collectively raise awareness of how difficult and unfair the inquest process is for families. It was important because it recognised that while it drew on the experiences of the families of the Hillsborough disaster, it also reflected the experience of families at inquests involving public bodies. As Bishop Jones said:

“What this report describes as a ‘patronising disposition’ is a cultural condition, a mindset which defines how organisations and people within them behave and which can act as an unwritten, even unspoken, connection between individuals in organisations. One of its core features is an instinctive prioritisation of the reputation of an organisation over the citizen’s right to expect people to be held to account for their actions. This represents a barrier to real accountability.”

That statement will resonate with any lawyer representing the bereaved at healthcare inquests. It certainly resonates with AvMA and our experience of supporting families through our Pro Bono Inquest Service.

Yesterday, 6th December 2023, some six years after its publication the Justice Secretary, the Rt Hon Alex Chalk KC MP gave an oral response to Parliament on the report.

In that response he said: “that proper involvement in an inquest will in appropriate cases mean that bereaved families should get legal representation, especially when the state is represented”. First consideration of that statement might suggest that meaningful change is afoot but he goes on to state that “…had the Hillsborough tragedy happened today, the families would have been eligible for free legal aid, through the Exceptional Case Funding Scheme.”

He highlights that the means test for Legal Aid’s Exceptional Funding rules was removed in January 2022 and in September it was removed for legal advice. Unfortunately, he omits to mention that eligibility for legal aid requires families to satisfy not only a means test, but a merits test too.

The merits test is satisfied only if at least one of two available grounds is demonstrated. They are either there is to be an Article 2 inquest and/or where the Legal Aid Director finds there is a “wider public interest determination” in relation to the individual and the inquest. To satisfy this the bereaved applicant must be able to show that the inquest into their loved one’s death “is likely to produce significant benefits for a class of person, other than the applicant and members of the applicant’s family”. In practice not much has changed. Exceptional Funding is exceptionally difficult to secure. It should also be remembered that legal aid is not retrospective and therefore must be secured before the inquest hearing commences.

AvMA gave evidence to the Justice Committee on the Coroner Service and in May 2021 they published their report. Their clear and unambiguous recommendations include: “The Ministry of Justice should by 1 October 2021, 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 who have been bereaved”. That has not happened.

Yesterday’s oral statement does not suggest any real intention, urgency or commitment to ensuring fairness for the bereaved. Instead, the emphasis is on expanding the existing legal aid facility to include funding for families bereaved through public disaster and while AvMA fully supports that, there are thankfully comparably few public disasters. There needs to be at the very least an equal focus on ensuring a level playing field by making public funding available for families faced with an inquest “where public authorities are legally represented”.

There is no sense of any commitment from government to promote equality of arms at inquests between the bereaved and public bodies. In September, the government announced plans to introduce a scheme of Fixed Recoverable Costs (FRC) for low value clinical negligence claims to be effective in April 2024. Cases where the death was caused or substantially contributed to by failings in healthcare will be caught by this regime. The rates are so low that our own survey from October 2023 confirms that 89% of the firms currently providing representation at inquest while investigating a clinical negligence claim will cease to do so.

Other than legal aid funding, representation at inquest on the back of a clinical negligence claim is one of the only ways a family can hope to achieve representation at inquest and therefore some sort of equality of arms in the coroner court. Instead of supporting this by excluding all fatal claims from a FRC regime, the government has sought to cut off this route of access to representation. AvMA repeats its previous calls for government to exclude all fatal claims (not just stillbirths and neonatal deaths) from this FRC regime.

So, while Alex Chalk acknowledges that Bishop Jones talks broadly about the proper participation of bereaved families at inquests where the state is represented. He now says that he seeks “to further understand the experiences of these individuals”. What is it that our Justice Secretary is trying to understand? He may find that by liaising with the Justice Committee who recently heard evidence directly from bereaved people as well as organisations such as AvMA and INQUEST that the experience of individuals is already well researched and documented; it simply remains for him to act on the recommendations.