The Report
of the Iraq Inquiry
347.
On 21 October
2009, during a debate on the Bill in the House of
Lords,
Lord Thomas
of Gresford moved an amendment which would have the effect of
bringing
inquests
into deaths in State custody or while on active military service
within the scope
348.
Lord Bach,
Parliamentary Under Secretary of State for the MOJ, agreed
to
consider
that amendment, adding:
“Obviously
I cannot give any guarantees that I will be able to bring forward a
suitable
amendment
... but I shall certainly do my best.”220
349.
An MOJ
official provided advice to Lord Bach on 23 October on the
form and cost
of such an
amendment.221
The
official identified a number of risks, including:
•
The MOD was
trying to reduce how often it chose to be legally represented
at
inquests
“to tackle the perception that they have the advantage over
families”.
If bringing
military inquests into the scope of the legal aid scheme
meant
that most
families had legal representation, then the MOD would also
want
representation.
The MOD had chosen to be represented at “only” 45
percent
of inquests
in 2008.
•
Bringing
military inquests into the scope of the legal aid scheme meant
that
decisions
on whether to provide legal aid would be made by the Legal
Services
Commission
(LSC) without reference to Ministers. That might lead to
military
inquests
being refused legal aid, particularly where the LSC did not waive
the
financial
eligibility limits. The official recalled that all 17 of the
applications for
exceptional
funding in relation to military inquests which had so far been
made
by the LSC
had been granted by the MOJ.
350.
When the Bill
reached its Third Reading in the House of Lords on 5
November,
the
Government tabled an amendment which made specific provision for
legal
representation
at an inquest into the death of British Service Personnel on active
service
to be
publicly funded.222
A means
test applied.
351.
The Bill
became the Coroners and Justice Act in November 2009, with
the
amendment
included as Section 51. That Section was not brought into
force
immediately.
352.
Section 51 was
repealed by the Legal Aid, Sentencing and Punishment
of
Offenders
Act 2012.223
The MOJ’s
consultation paper for that Act, which was published
219
House of
Lords, Official
Report, 21 October
2009, column 746.
220
House of
Lords, Official
Report, 21 October
2009, column 749.
221
Minute MOJ
[junior official] to Bach, 23 October 2009, ‘Legal Aid – Coroners
and Justice Bill –
Extending
Legal Aid to Death in Custody and Military Personnel
Inquests’.
222
Coroners
and Justice Act 2009 c.25 Section 51 and Explanatory Notes,
paragraphs 326 and 820.
223
Standard
Note, 10 March 2014, ‘Legal aid for representation at
Inquests’.
136