Official Report: Minutes of Evidence

The Deputy Chairperson (Mr McCartney): I welcome you once again to the Committee, Attorney General. As I have said, the session will be recorded by Hansard. You will speak in the first instance, and then I will invite members' questions on each item. We will just take them as they are listed. Do you want to make any opening remarks on the amendments tabled by Mr Jim Wells and the Department of Justice to the Bill? Members, the relevant papers are in our meeting folder.

Mr John Larkin (Attorney General for Northern Ireland): Once again, it is a pleasure to be here giving evidence to the Committee. The particular pleasure on this occasion, Deputy Chair, is that it is the first time that I have attended a meeting of the Committee that is being chaired by you. That is an interesting and, from our mutual perspective, welcome first.

If it is not inconvenient to the Committee, I propose to deal first with the two issues that come from me: the amendment to the Coroners Act (Northern Ireland) 1959, as you said, and the proposed amendment in relation to rights of audience of lawyers working in my office. I suggest that course simply because the others are very much demand-led, and I will respond to the issues in relation to the Justice Bill, including any amendments to that which are of concern to the Committee. Does that course commend itself to you, Deputy Chair?

The Deputy Chairperson (Mr McCartney): Yes. Members are prepared for you to cover what is called here the Jim Wells amendment and then your amendment to the Coroners Act.

Mr Larkin: I can certainly do that. I do not propose to say very much about Mr Wells's amendment. This, I take it, is the amendment that textually reproduces the amendment that was moved by Mr Paul Givan on the occasion of the last Justice Bill. I have expressed the view that it is within competence. I have read transcripts of evidence from the Human Rights Commission, and I disagree with that. Obviously, we may be all more enlightened in view of what the High Court might say down the line, but it is absolutely clear that, as a matter of convention law — indeed, this is such an obvious point of convention law that it scarcely needs re-emphasis — that there is no convention right to an abortion, so there is no way in which it could be plausibly said that the amendment would be outside competence on a convention ground.

I have to say that I was somewhat amused when I saw the reference to two interpretations being offered in relation to the emergency provision; I think that, if I have not done the chief commissioner of the Human Rights Commission an injustice, he said that the law therefore lacked clarity. As I am sure my learned colleague Mr Maginness will agree, lawyers would be out of business if there were not the possibility for debate on statutory provisions. The mere fact that there may be two statable positions — indeed, more than two statable positions — on any given statutory provision is in no way suggestive that the provision in question lacks the requisite clarity, particularly from a convention perspective. There will, of course, be important policy considerations, and those are obviously a matter for deep reflection by the Committee, but in terms of competence the Committee should not consider itself troubled in any way by this provision.

The Deputy Chairperson (Mr McCartney): It is the precise amendment that was tabled to the last Bill.

Mr Larkin: Yes.

The Deputy Chairperson (Mr McCartney): Do members have any questions about what we are calling the Jim Wells amendment?

Nobody has any questions on that, so we will move on to your proposed amendment to the Coroners Act.

Mr Larkin: I am grateful, Chairman, and I repeat with particular emphasis my gratitude for the depth of consideration that both members who are recent additions to the Committee and members who have been on the Committee for a longer period have given to this suggestion from me. There has been a measure of correspondence, and the Committee does have a certain amount of material on that. I hope that the Committee has conveniently to hand the letter that should have arrived with the Committee at the start of this week.

To adopt a phrase that I have used before and which you have used, Deputy Chair, during consideration of this issue, this is really about a second set of eyes. Obviously, with the best will in the world and with healthcare systems working as best as they possibly can, errors are made and cases, including significant cases, slip between cracks. This is a provision that is designed to ensure, as far as possible, that there is a protection against that. You have seen the correspondence between me and Mr Maginness's brother, which made for some entertaining exchanges on the last occasion of the Committee. There is no power that I have to require any person to give me any single piece of information to enable me to consider a matter properly. It is absolutely true to say, as Mr Alphy Maginness does, that the threshold for directing an inquest is low: it is whether I consider it "advisable". However, every member of this Committee is fully aware of how heavily loaded and very much under pressure the coronial system is, both in terms of its general workload and its legacy workload. It would be quite wrong, in my view, for inquests to be directed on the basis of material which was not sufficient to take a fully informed view when, if there had been material on which a fuller, more complete view could have been taken, perhaps inquests would have been considered unnecessary.

I agree that the threshold is low. This is designed also to ensure that there is protection for the coronial system in ensuring that only cases which I consider should be properly considered by the coroner actually do end up on his desk. This amendment will be a powerful tool to ensure that that will happen. The arguments have been put before you. I do not see it as anything which is going to cause an excessive burden. True it is that almost any statutory entitlement can be abused, but there is no indication that it will be, and I can assure the Committee that there is no way in which a provision of this nature would be abused by me. I am quite sure that I would not be advised to abuse it by any of my colleagues. And yet, it would provide that reassurance that the public can properly expect itself to be entitled to.

Again, I referred to Northern Trust cases in previous correspondence with the Committee. The Committee will be aware that these are cases that were not referred to the coroner until, all of a sudden, I wrote seeking information about them. So we are in a situation where, naturally, one does not know what is out there, and I am not in a position to require anyone to tell me what is out there. However, given the valuable work that is going on within the health care system itself to improve systems, there is no reason to think rationally that any effective operation would be endangered by this provision, and those who are concerned with the very highest standards of quality, in the interest of all of our citizens, should welcome it as providing that additional set of eyes and that additional safeguard.

I am happy to deal with any particular points that members may have.

The Deputy Chairperson (Mr McCartney): In relation to the evidence that we have heard over the previous two meetings, you still believe that the second pair of eyes is the best way forward?

Mr Larkin: Very much so. I should correct a misapprehension on the law by Mr Alphy Maginness, who says that I can only look at a potential directed inquest when the coroner has made a decision. That is simply not true. If anyone looks at the text of section 14(1), they will see that it is quite clear that my jurisdiction to direct an inquest exists whether or not the coroner has been seized of the matter, has made a decision or has made a decision not to hold an inquest. That is simply unfounded and finds no support whatsoever in the text of section 14. I can say that I have directed cases in advance of a coronial decision.

The Deputy Chairperson (Mr McCartney): I raised this at both sessions. You state very clearly, in relation to the report of Dr Warde on the death of Raychel Ferguson that, if you were the second pair of eyes, you would have access to that document. I know that this is all now in hindsight, but you felt that this was a document which should have been released.

Mr Larkin: Yes. Obviously one has to be careful, because there is a degree of detail about the circumstances in which that report was commissioned, but, as you know, Deputy Chair, the senior coroner considers that he should have seen it. A distinction appears to be made in the evidence of the board between a medical report that is prepared for internal board purposes to increase the learning of the board and something that is prepared for the purposes of legal proceedings. Obviously, if a doctor writes to his solicitor and says, "I fear I may have incurred criminal liability by doing x", such a letter is not discoverable and could not be obtained by me, because it is covered by legal professional privilege. But where a board seeks expert medical evidence to assist it in determining what went wrong internally, that is not, it seems to me, covered by legal professional privilege. Therefore it would be available to me under the amendment to section 14(1). I should be able to obtain it under that amendment.

The Deputy Chairperson (Mr McCartney): The position regarding the access of doctors or medical staff to private papers and diaries was outlined. Would the amendment give you access to people's private papers and diaries?

Mr Larkin: Strictly on the canon of relevance, I cannot conceive how that could conceivably fall within the amendment if someone keeps a private diary, for example. However, if there is an issue about an appointment book or about a doctor, for example, preparing notes for an article on a medical theme during which she or he refers to the particular case at issue, I would get that. I cannot see how the private diary would fall within that. Indeed, if a doctor simply said, "This is my private diary", there would be no way in which I would be seeking material of that nature, unless I had reason to suppose that what he said was incorrect.

Mr Lynch: John, the people from the Health and Social Care Board who were here on 21 January talked about the unintended consequences for clinical staff and families. How do you answer that?

Mr Larkin: I do not think there is an unintended consequence because, as I have said, any provision in any statute can potentially be abused instead of used, but this is a provision that is designed to be used. If it is used, it will not give rise to those effects. Indeed, as the Information Commissioner points out, it will provide an additional safeguard because it will provide a sure legal route and a safeguard for those persons who hand the material to me.

Mr Lynch: They intimated that if people thought that your eyes were going to be on it, they would be very careful about whether they would draw up documents and reports, knowing that this may land on your desk.

Mr Larkin: Of course, it already ought to end up with the coroner, in one sense, so one would think that people would be careful in any event. It is one of the issues on which clinicians and lawyers sometimes disagree. They point out, rightly, that they are concerned with the delivery of care, but part of the delivery of care, as has been made absolutely clear by all of the relevant professional bodies, to the best of my understanding, is that good note-taking and note-keeping is a vital part of good clinical care.

Mr A Maginness: Thank you very much, Attorney General, for coming. It is very useful to hear in person your views on this. I think the Committee has been struggling with this issue for some time. I am not certain whether colleagues have their minds made up. I know my mind is still undetermined in relation to this issue. The points that were made, particularly last week by the officials from the Health Department, indicated that they felt that there was no need for this additional power to be given to your office. They felt that there was sufficiency in what was available at this time, as the coroner can ask for whatever papers he requires in pursuit of his duties. The question really is this: what added value is there in you or your office having this particular power?

Mr Larkin: I suppose that the first thing one asks rhetorically is, "What of the cases that are never reported to the coroner?" The ability of the coroner to ask — and one emphasises "ask" — for more material can be usefully exercised only if he is informed of the matter in the first place. That argument cannot apply at all to those cases which are not drawn to the coroner's attention.

Secondly, the fact that a provision may not, in the event, be used is no consideration at all as to its potential usefulness. We have, happily, a range of criminal law provisions and, in any given year, happily, no breaches of those are detected, for example, in any given case by the police, but obviously, if we did not have those provisions, the position could well be different.

The striking instance here is of the Northern Trust cases: a substantial batch of cases which were simply not drawn to the coroner's attention until I got involved. In a case where perhaps the coroner had been informed, but imperfectly informed — and the difficulty is of course that the coroner is typically informed by the doctors involved — there is structurally, with the best will in the world, a potential conflict of interest in a doctor or team of doctors who have been involved and who have perhaps themselves made mistakes. Self-criticism and self-judgement is a difficult exercise. This enables that potential conflict to be overcome.

Mr A Maginness: Arising out of that, you have said that the Northern Trust cases would not have been raised by the coroner because he was not in a position to —

Mr Larkin: He was not initially informed of them.

Mr A Maginness: He was not initially informed of them. Your office became involved and was able to raise these issues and ask for an inquest in some or all of the cases — I am not certain. Does that not, in a sense, go against your own argument? If you were able to do that without this particular power being given to you, the power is therefore unnecessary.

Mr Larkin: No, because obviously it shows that, unless one takes the Northern Trust as an area quite apart, there is a phenomenon of cases which should go to the coroner that are not going. One cannot extrapolate in any uniform way from that, but nonetheless it does seem reasonable to make appropriate inferences in that regard. That is the first point. The second point is that where something is drawn to the coroner's attention, but in a way which does not flag up issues to him, he is looking at a very large workload indeed. Our focus will be narrower. And I suppose that the final point, really, is the point that was made in the letter to my office from your brother, which said, "What is your power to do this?" I will not go into the circumstances of that particular case, but it is an interesting and important case with potentially very significant ramifications. We would have no power nonetheless to take the view that we should have that material. The understanding seems to be that there is a conversation between doctors and there the matter rests. Now, I suggest that that cannot be right. The power may be a residual power and, as I have emphasised, where systems are working perfectly, this power will never be invoked, but we know that we do not live in a perfect world. We know that we live in an era of straitened circumstances, particularly on the health care front, where demand is infinite, but resources, sadly, are not. There will be cases that will, to use the prosaic expression, fall between the cracks. This amendment is designed for them.

Mr A Maginness: My final point is that, in the Northern Trust case, the document that the Chair has referred to was not disclosed. In that case, the position seemed to be that the document was, in any event, a privileged document — "privileged" in the sense that it was prepared in anticipation of or for legal proceedings.

Mr Larkin: I am not sure. There are two issues that one must keep separate. The first is the notification to the coroner. No notification took place. Whether or not one seeks legal advice, there is still the obligation to inform the coroner.

Mr A Maginness: But assuming that the document was a privileged document, the trust could not have been compelled to disclose that.

Mr Larkin: Absolutely not, no.

Mr A Maginness: The trust could have disclosed it, but it could not have been compelled to disclose it.

Mr Larkin: That is exactly right.

Mr A Maginness: I think that the coroner was saying that, in such circumstances, it was desirable that the document be disclosed.

Mr Larkin: We are referring to "the document" here. Can I ask which document it is?

Mr A Maginness: I am not sure. It is the document that the Chair —

The Deputy Chairperson (Mr McCartney): The Warde report.

Mr Larkin: I do not want to pronounce upon the precise nature of a document that I have not seen, but my understanding is — and this seems tolerably clear from the way in which the board's submission was drafted — that the board made the point about legal professional privilege, but separately referred to the Warde report. For example, the coroner has an expert, as one would expect him to in a case of that nature. If the board says, "What do we say about that? Let us get some expertise about that", and gets a report, that would not necessarily be legal professional privilege. I rather think that it is not.

Mr A Maginness: But assuming that the document is privileged, it would not be disclosable. It could not currently be disclosed and indeed, if your amendment were to be accepted by the Committee and passed by the Assembly, it would maintain that privilege.

Mr Larkin: Absolutely right. That is why I made the distinction in response to the Deputy Chair. For example, if a doctor is seeking advice about his or her legal position, there is no question about a document such as that being disclosed. No one would rightly seek disclosure of a document of that nature. Where you have the trust learning about a position, finding out what went wrong and getting medical expertise, perhaps from outside, to enable it to find out what went wrong, my view is that the public should have the benefit of that learning and we would be able to get that through this amendment.

Mr A Maginness: Yes, of course. Thank you.

The Deputy Chairperson (Mr McCartney): Would there be a distinction between an individual doctor asking for that document and the trust as an entity?

Mr Larkin: No. The trust itself can of course seek legal advice. While it is in a position to waive its privilege, the legal professional privilege would also apply to documents that are obtained, for example, for the purpose of advising about legal proceedings or the particular legal position that the trust then stood in.

The Deputy Chairperson (Mr McCartney): Would it declare, prior to asking for the report, that it is asking for it because it feels that there may be litigation?

Mr Larkin: Typically, one of the ways in which legal professional privilege is attracted is where the report is commissioned through solicitors. So, if, for example, the solicitors commissioned that, they would say, "We have been instructed by such and such a trust to obtain your expert opinion on such and such for the purpose of preparing a defence to a possible claim from x." Typically, that will be the way in which legal professional privilege comes into being in that kind of setting, but where a trust decided to simply learn more about what had gone wrong, that would not be an occasion of legal professional privilege.

The Deputy Chairperson (Mr McCartney): Maybe it is not related to this, but, if you receive a report that is favourable, then you waive the privilege, but, if you receive a report that is not favourable, you can use privilege. It does not seem to have the word "fairness" in the middle of it.

Mr Larkin: Deputy Chair, may I say — we are moving off track a bit — that I take that point in relation to publicly funded bodies whose function it is to act in the public interest. It seems to me that they have an overriding duty of candour and transparency. Of course, they can defend their legal position, but, if they obtain at public expense advice or opinions that show that they have not operated well in the public interest, that ought to be placed before the appropriate board.

Mr Douglas: I think that this in is a letter that you sent to us. It states:

Have there been occasions when you have asked for information and it has been refused? Is it a big problem? Does it happen on a regular basis?

Mr Larkin: Happily, it has not happened on a regular basis. In the last exchange, Mr Alphy Maginness said, "What power are you acting under?", and, "You've no right to this stuff". I am not sure how that is going to pan out, but it does not necessarily augur very well for getting those papers.

I return to the point that was made by the Information Commissioner: this is a reassurance for the holders of the information and the documents, because they then know, "Ah, well, if we hand over this material, we're doing so pursuant to this statutory obligation". It is not merely, "We're enabling him, the attorney, to do his statutory duty"; it is, "We're actually handing it over pursuant to a discrete statutory obligation". That is a very powerful safeguard on both sides.

Mr Douglas: I am a layman in this situation. Will you give us an example of the sort of information that you would be requiring or requesting?

Mr Larkin: There is a classic example. One of the great learning tools in the health-care system is the serious adverse incident report, which pulls things together. The reading of that document might, in itself, suggest that there are other documents that one should see. It would be a classic example of something in this regard.

Mr McGlone: Chair, my apologies to you and to Mr Larkin for being a bit late. I was held up with some constituency work, not that that is any less —

Mr Larkin: No apology necessary —

Mr McGlone: — or any more important than what yours is.

Mr Larkin: No, they elect you, Mr McGlone. They are much more important than I am.

Mr McGlone: That is true; you are not a constituent.

Mr Douglas referred to your letter about the 1959 Act. We received a submission from DHSSPS. I will just read these out to you, if it is OK, Mr Larkin.

Mr Larkin: Of course.

Mr McGlone: Paragraph 8 — this is the bit that puzzles me — states:

Paragraph 9 states:

In other words, it is saying to me, as a layperson, that you already have powers to direct the coroner to conduct an inquest. It is saying that you do not need to conduct an investigation to direct that an investigation take place. How do you respond to those words from the Department?

Mr Larkin: If I may say so, that is an excellent question. It enables me to bring the matter out quite starkly. It is absolutely true to say that the threshold is quite low, but, as I said earlier, the coronial system is quite burdened — one might even say that it is overburdened. Therefore, it is important that there be an investigation to determine that there really are issues that merit consideration at an inquest. Me looking at that material enables that to occur. Individuals who know that I am looking at a particular case in which they are involved — perhaps their relative has died in circumstances that give rise to concern — will know that I am statutorily independent of the Department and of the relevant trust and board, and that a second set of eyes has looked at it.

It cuts two ways. If I simply think that there is a suspicion that something does not look quite right, I may end up directing a case — in one sense, quite properly — to be investigated by the coroner, but for which, if I had seen some additional materials, they would have reassured me entirely that there was no need for coronial investigation. So, there is an important aspect of saving the coroner from potentially unnecessary work.

The second point that your question enables me to highlight is that I can certainly direct an inquest. As we have discussed, the threshold is quite low, but what about the cases that I have no means of knowing anything about? I have no power to ask a relevant board, "Have you had deaths that have arisen in the last month where people have been waiting on a trolley for more than four, six or eight hours?" Right now, the cases that typically come to me are those where there are people who have very involved and engaged family and friends. What of those who live alone and die alone; those who are friendless and without blood relatives?

Mr McGlone: That brings me on to the next bit in paragraph 11; you neatly moved me onto it. It states:

I am really putting it back to you. If people were doing their job in accordance with what the Department has laid out to us, it says that you do not need the additional power to conduct an investigation because provision is made in there for those instances.

Mr Larkin: There are two points. First, it may be the person responsible, in a large sense and in a legal sense, for the death who has to make the decision about whether to refer under section 7. That is the first problem.

Secondly, even if the person refers, the amount of information given is a matter for them. Someone acting in whatever level of high good faith might be tempted to put the best foot forward on that. That will mean either that some cases do not go at all or cases go in a way which do not shine a light on the darker parts of the treatment, which might be the matters of real interest to the coroner. Interestingly, the provisions to which Mr Alphy Maginness alluded the last time, such as the duty about holding things back and the penalisation of that, have not been commenced.

Mr McGlone: Finally — this brings me sequentially onto the next bit — it may well include the circumstances that you just outlined, where the person responsible for reporting is, in fact, the person who was involved in the administration or treatment or whatever. Paragraph 13 states:

I would interpret from that, possibly or potentially, the situation that you have outlined, where the person should have been responsible for reporting it to the coroner.

The paragraph also states:

Again —

Mr Larkin: Let me give you an example of a problematic case. This is a case about which the coroner has written. The aspect that interests me in that context is that a particular device that governed the administration of medication vanished after the death. There could be a concern about material and documents — that is the primary focus, of course — going missing at that early stage. As you have said rightly, if the system is working well, we are largely happy. It is for the residual cases, the cracks and the gaps that we are potentially aware of now and those that we can contemplate but do not quite see at present.

Mr McGlone: If somebody comes to you — it could be a relative — and says, "Mr Larkin, I think there is material missing here; there is paperwork missing", or to tell you that their GP or someone has discovered that paperwork around the treatment of mum, dad or whoever, is missing, would that not take us back to the paragraph that I mentioned earlier? If the Attorney General were to have sufficient reason to believe that the circumstances of the death make holding an inquest advisable — given that wide degree of discretion that the Department refers to — would that not be adequate for you to say that, based on what you have been told and on what a GP has submitted, you must direct a coroner to investigate?

Mr Larkin: No, and that is a good example of exactly the opposite. That may be the kind of territory where a document turning up, following a direction from me, could reassure everyone that there is no problem. In the absence of that, I might be, as you suggested, disposed to direct an inquest simply because one might conjecture that something, from appearances, may look a bit off. However, if one is able to get the material, one is reassured, and, because it is an independent person who is reassured, that goes a very long distance towards reassuring the family that there is nothing untoward.

Mr McGlone: You could put yourself through a lot of bother investigating a case that could best be placed at the coroners office. Surely, they would be in the same position to request discovery of that —

Mr Larkin: Yes, but they may have looked at it and made a particular decision, or it might not have been referred to them. There is a variety of —

Mr McGlone: I am talking about that particular permutation of relatives contacting you. The coroners office has not been involved, but there is sufficient merit or something is absent — based on the paperwork in front of you, on the dates and on reports back and forward — that enables you to say that there are grounds to direct the coroner to become involved. I am trying to understand the sequence. The Department stated that you have the powers to do that, based on the circumstances of the death, and have, in its words:

If you have the ability to direct those empowered to conduct an investigation, the coroners, then, if you like —

Mr Larkin: I would not be directing the coroner or his medical adviser to investigate the matter in some informal way; I would be directing that a formal inquest be carried out.

Mr McGlone: Yes.

Mr Larkin: That is exactly the point that I am making. In the event, that might be quite unnecessary. If I write to the relevant clinician within the trust and say, "Can you show me document X?", he is legally entitled, at present, to say, "Get lost", subject to some overarching obligation under the European Convention on Human Rights. However, if I am able to require him to give that information to me, I may look at it and say that it is quite clear that nothing untoward happened. I can then discuss with the surviving relatives the position and, in such a case, I hope reassure them of the absence of any need for an inquest.

Mr McGlone: OK.

Mr Frew: Thank you for your answers so far. My question is along the same lines as Patsy's. You stated, Mr Larkin, that you could, in some way, relieve the work burden on coroners. Surely, you would be placing that workload within your office.

Mr Larkin: No, because, in this context, the workload that belongs to the coroner is that of conducting inquests. I would not ever be conducting an inquest. However, if an inquest has not taken place, family members may come to me and say that perhaps one should be held, because, to use Mr McGlone's example, some documents are missing or they have not got those documents. If I am able to get those documents and reassure myself that there is nothing untoward, I can attempt to reassure the family that there is no need for an inquest or, to use the language of section 14(1) of the 1959 Act, that an inquest in that context, is not advisable.

Mr Frew: How do you answer the points made by the health bodies that there could be a move towards not recording and not taking notes, as is the practice now, because of this amendment?

Mr Larkin: On analysis, I think that the officials who wrote that may want to reflect further on that because a clinician who deliberately did not write notes might find himself or herself coming close to, if not actually crossing, the threshold of committing the offence of misfeasance in public office. It is a clinical duty to keep and maintain good clinical records. That obviously means notes. There is at present an obligation to inform the coroner in, as has been referred to, section 7 of the 1959 Act. That is underpinned by criminal penalties, so the idea that one is introducing a criminal underpinning, for example, for the first time, is simply nonsense, frankly.

Mr Frew: You talk about using this to get into the small cracks in the system and the cases that fall between the cracks. Excuse me for my ignorance, but I am struggling to find where and how you would be alerted to those cases that fall between the cracks. There is a system in play at present — the adverse system. That automatically and mechanically goes to the coroner.

Mr Larkin: Let me stop you there. It does not. Merely because something has led to a serious adverse incident does not necessarily result in it being referred to the coroner. That has been, one might think, part of the problem.

Mr Frew: OK. Let us take the example that you gave of someone who has no friends, no blood relatives and who lives alone and dies alone. How would you ever know that that person existed and died?

Mr Larkin: That is an excellent question. Part of the answer is that I might not, and, under the present arrangements, where I have no power to require production of information, I certainly would not, unless some stranger or benefactor were to draw the circumstances of such a person to my attention. However, I could potentially be alerted to the existence of such a person's death if the amendment is made. That is because I could ask on a sample basis, for example, have there been any deaths — I gave the example of people who waited on trolleys for more than six hours and where their deaths occurred within 12 hours of that. Or, I could ask for a list of the SAIs for the last month, and a case might present itself within that batch of SAIs, for example, that fell within the very category that you are describing.

The point is that, right now, the person who lives alone and dies alone would, in circumstances where they were known, objectively attract our concern. There is no safeguard with respect to such a person now. At least the amendment would provide some measure of additional protection over and above what exists at present.

Mr Frew: Health professionals will also say that the burden of work that could well be placed on them by your requests could be detrimental to the health service.

Mr Larkin: I see that point made, but I do not think that it is accurate. The Department is itself talking about appointing an additional person, albeit within the health universe, and doing things such as 10% sampling. So, there will be a burden that way. In many ways, this is a much less intrusive and a much more tailored and targeted response. Let me be absolutely clear: although I am statutorily independent and am very glad that I am, that does not mean that I am isolated. I am very keen to work with the boards and the trusts to ensure that we, essentially, work collaboratively to deliver what I think we both have very much at heart, which is the very highest standards of public safety in this particular area.

Mr Frew: This may be a crystal-ball question, but if this was to be passed, how often would you see yourself using the power? If you look back over the past number of years and implant that law then, how often would you have used it? Can you tell?

Mr Larkin: It is a very good question. How often would I have used it in the past? It is almost impossible to answer that. How often do I anticipate using it in future? I think that there is a distinction between two types of cases. There are cases where trusts, boards and clinicians would welcome its use and say, "Would you give us a direction, because that gives us safety and the reassurance of knowing that anything that we give you is done in a legally protected way?" That will probably happen quite a bit. In the tinier category of contentious ones where there is resistance, I would anticipate that happening scarcely.

Mr Frew: How often do members of the public, family members or professionals come to you about those situations?

Mr Larkin: Quite often. If it would be of assistance to the Committee, I can give you some detailed figures, but, in many ways, those are not the cases that you worry about so much because they have engaged, motivated people speaking up for them. It is the ones that one does not know about where there is perhaps no response at all.

Mr Frew: I might be far out here, but I want to make sure that I close the door. What happens if someone has had a torrid time in hospital, their care has not been up to a good standard and they die but for some other reason or naturally and it was not necessarily to do with their care, yet their care was horrendous? Where does this law fit in there?

Mr Larkin: Again, it is an excellent question. The short answer is that it does not. For example, to take, one hopes, a fanciful instance, if a member of the nursing staff racially abuses a patient on a regular basis but that is utterly clinically unconnected with the person's subsequent death, it is nothing to do with me at present and will not be anything to do with me even if that amendment is made. Let me give you an example —

Mr Frew: You can understand why someone would be motivated to approach you or contact you about that.

Mr Larkin: Not really, because they will at present. For example, I was approached in relation to an instance where the cause of death was tolerably clear but the remains of the deceased were not well treated after death and there was evidence of post-mortem injuries. That is hugely upsetting and hugely distressing for family members, but that would not be a basis on which I would direct an inquest, and I did not direct an inquest in those circumstances. So, by analogy, with the pre-death, unconnected-with-death and post-mortem events, the amendment would not change any of that.

Mr Poots: Mr Larkin, it is good to see you. Historically, openness and transparency has not really been the forte of the health service, and that has, thankfully, been changing in more recent years. Will what you are doing improve that openness and transparency or will it tend to drive people back into the trenches once again?

Mr Larkin: The affirmative answer is inescapable. There are already regulatory measures in place. I have referred to the penalising of failure to perform the duty under section 7 of the 1959 Act. If the material is asked for, it should be given. If there is a good reason to refuse, it will be refused. If there is a bad reason to refuse and it is refused, it is underpinned with a summary offence. That is a standard model in this kind of arrangement, and I do not think that there is anything in this that, properly understood, will do anything other than increase transparency and, more importantly, because it goes vitally with transparency, reassure the public.

Mr Poots: Serious adverse incident reporting is largely a learning exercise. It is reporting that is there to avoid the same circumstance happening again. Some elements of it are less enforceable than others. Consequently, if we were to see the tailing off of serious adverse incidents, that would not necessarily mean that the health service is performing better; it may be the case that people are not being as transparent as they were previously. How do we avoid the circumstance in which people are not as open and as up for using the serious adverse incident reporting means to ensure that others learn from some failings?

Mr Larkin: This is an instance of where good health service management comes into play. As we know, the demands on the health service are far from diminishing. I have described them as being almost infinitely elastic, and they are going up. If one were to observe against that background a diminution in SAIs being explored, one would realise, presumptively, that something was not quite right. That is a matter for internal health service management.

Mr Poots: You, more than most, will recognise that we live in a very litigious society. The health service is paying out tens of millions of pounds each year on the basis of people taking them to court for treatment that did not meet the standards they expected. Again, much of that care has been provided historically. I suspect that, in a number of years' time, we will be dealing with cases where the care has been provided now. We have people in extremely difficult circumstances who have very difficult decisions to make. How do we get to a situation where doctors and hospital staff are prepared to take decisions that may involve an element of risk but will get a better outcome, as opposed to making them afraid to take such a decision and where, consequently, there is less risk but a worse outcome?

Mr Larkin: This picks up the theme of Sir Liam Donaldson. If I may say so, I absolutely agree with that. It takes us a bit outside the scope of today's discussion.

In my experience, good clinicians dealing with risk are up front and transparent about the risk, and they share the risk with the person or persons affected. I think that there are very few people, such as those who are gravely ill for example, who realise that there are a number of options. If they are made fully aware of those options and how each carries risk, some more than others, and what the range of potential outcomes is, then in those circumstances, where there is communication, people will accept that those with grave illnesses die and that outcomes often do not work out as one might wish.

It is where there is no upfront communication and where there is concealment, typically, that problems arise. One of the themes, and I suspect it is something that Sir Liam would probably agree with, is that, where there is early acceptance that we took that risk but it did not work out, people are disposed often to accept that.

Mr Poots: I will create an instance. If someone has cancer quite close to their spinal cord and, during surgery, some damage is done to that spinal cord, and the individual ends up in a wheelchair, it may be a young individual, and, consequently, the level of claim would potentially run into millions of pounds. The alternative may have been to allow the cancer to continue to develop and the person dies. Those are the sorts of decisions that our front-line staff are having to make on a daily basis. There is a fear that they may end up feeling constrained and take what they consider to be the right decision as a consequence of the litigation that may go on.

Mr Larkin: One hears that, and, to an extent, one understands it. But, I revert back to the emphasis that I think ought to be placed on effective and clear communication of risk. To take your example: if the nature of the options is communicated — bearing in mind, of course, that there has to be informed consent to treatment — then physician A cannot do anything to patient B in ordinary circumstances unless patient B consents. As we know, there is now increasing jurisprudence about what is meant by informed consent. So, I am really not talking about anything new. There has to be a proper process of putting the patient in the picture. When the patient, and the patient's relatives where appropriate, are placed in the picture, there is often a huge acceptance of what has happened, even though the outcome may be very far from what was desired.

Mr Poots: Again, in the imperfect world in which we live, and in spite of having some of the best imaging services in the world, when you open up a person's body, the circumstances you often find are not what you predicted. Therein lies the difficulty that physicians often find themselves in. They have to make an on-the-spot decision, and the decision they make may well be the wrong one, but it may have been one that was made with the right intent. Therein lies a difficulty.

Mr Larkin: I agree.

Mr Poots: There is a lot of fear out there that people will end up being constrained in the work they are doing.

Mr Larkin: I agree, but, of course, in many ways the fear comes from clinical negligence litigation, and an inquest should not be conflated with that. It is quite separate. In one sense, an SAI is about clinicians learning. An inquest, in my view, in a medical context, should be about learning what the clinicians have learned and reassuring the public about that.

In the scenario you sketch, Mr Poots, what happens in an ideal world is that, where the decisions are made, for example during the course of an operation, the relatives — providing appropriate consent exists — are informed of what has happened right away. Usually, in those emotionally charged moments — and I suspect we have all experienced those, either directly or indirectly — there is a huge, proper, and open emotional response to the candour of a clinician who often visibly bears, on his or her face, the marks of having to make a difficult decision in difficult circumstances. I think we all rightly appreciate that.

Mr Poots: I suppose that, for your case, it would be more like an instance where a surgeon is operating close to an artery and someone bleeds to death. Those would be the circumstances that are to be feared in that instance.

Mr Larkin: In many ways, if it is clear that that is what happened — it may be an inquest that, if referred to the coroner, he will deal with — and it is simply something that is happenstance rather than negligence, I think the wider public will understand that.

Mr Poots: You do acknowledge that, for health care workers, the safety of the patient should always be paramount, and that that is almost exclusively the case. Consequently, people involved in health care will want to provide health care. They will not want to be involved in court cases of any kind, whether with coroners or otherwise.

Mr Larkin: Yes, but I think there is a distinction. It used to be that lawyers liked to wrap themselves up in a god-like aura and see themselves as aloof, apart and quite immune from external scrutiny —

The Deputy Chairperson (Mr McCartney): Do not get him going.

Mr Larkin: I am not talking about judges.

Quite rightly, that is no longer the case. Similarly — I make no bones about saying it — I do not think that clinicians can pretend to be minor deities. They have to be properly accountable. Actually, the inquest is a forum in which there can be learning without direct fear of civil or criminal liability. In the very old days, it would be possible to be returned for trial by a coroner's inquest. Those days have long gone.

Mr Poots: I think that the more openness and transparency that can be developed, the better it will be. The best example of not doing it right is the reporting that John O'Hara is looking into. Four deaths were involved there. It has turned out to be a hugely traumatic inquiry, particularly for the families and for everyone involved. Had there been more openness and transparency at the outset, it would have avoided a lot of pain for everyone.

Mr Larkin: I agree entirely with what Mr Poots said. It is worth bearing in mind that, had there been properly informed inquests, we would not have had the inquiry that then became necessary.

Mr Elliott: I apologise, Attorney General, for missing the earlier part of the presentation. There was a query from the Department last week. I will read Fergal Bradley's position. Maybe you have covered it. If you have, I apologise. He said:

They were saying that, in principle, they broadly support it but did not see the rationale for it and that there was maybe not enough clarity and explanation.

Mr Larkin: That is obviously my fault. Let me try to explain very briefly. Where cases are not reported, the amendment will come into its own. Where cases are reported to the coroner but with insufficient information and therefore the coroner makes a negative decision on an inquest, the amendment will potentially come into its own. Where the coroner makes a decision, even on an informed basis, but information subsequently comes to light, the amendment will come into its own. It is textually proportionate, and, as I said earlier, any provision can potentially be abused, and that is where the Committee comes in. If the Committee thinks that, for example, a particular Attorney General in 10 years' time is doing that too often or improperly, I am quite sure the Committee or its successors will look hard at that matter. So, I see it as proportionate and necessary, and I very much welcome the view of the Department that it has no objection in principle and that we are both looking to deliver the same thing.

Mr Elliott: I assume that you do not look at them randomly, but one of the questions was:

How do you pick them?

Mr Larkin: Right now, I do not do so, because I have no power to do so; but it is interesting that the Department is talking about introducing, perhaps, a 10% sampling scheme through the institution of a new post. The first thing is that it might be useful to use that position, which the public are already paying for. I could engage with the clinicians as to what an appropriate sampling exercise to engage in would be. For my purposes, and simply because of my resource limitations, if I were ever to engage in a sampling exercise, I can assure you, Mr Elliott, that it would be much, much smaller than 10%.

Mr McGlone: I have one final question. I did not really close off the line of questioning earlier. There may be a query around a death and you pass it to the coroner's office. You said earlier that you can then investigate whether the coroner's office should go ahead —

Mr Larkin: No. Once I have directed, that is the end of my role under section 14(1). It is then very fairly and squarely in the hands of the coroner.

Mr McGlone: Yes, but you said earlier that you do have the investigative powers to look over a case and decide that there may or may not be merit in it being passed to the coroner. At the moment, someone, be it a doctor, a funeral director, the police or whatever, may become involved and pass it to the coroner to look at. Before deciding to go to a full-blown inquest, the coroner will look at all the information that he or she might have, including, presumably, asking the police to ascertain whether anything further is required. What bit of that do you need to be involved in to make sure that the process is properly gone through?

Mr Larkin: If the process is properly gone through, then I would not be exercising my jurisdiction under section 14 at all.

Mr McGlone: That is my point. If a family, a funeral director or someone is concerned about the death, why would they approach you when they can equally approach the coroner's office?

Mr Larkin: Quite, and, in many ways, the coroner's office will be their first port of call. However, the coroner's office may have looked at it on a particular set of information and made a decision that was deemed, subsequently, to be unsatisfactory, at least in the eyes of the surviving relatives.

There was an example of a case, which I think falls into the second or third category that I identified with Mr Elliott, where something is reported to the coroner but the coroner is not given the information. There is an issue — and you may be familiar with it from the legacy inquests — about the coroner's source of information, and there are obligations on the police to gather information for the coroner. We know that that has been the subject of much commentary in other contexts. However, the coroner does not have a free-standing investigative power outwith pre-inquest. Obviously, he can issue a summons in the context of an inquest, but he is not a police officer with a panoply of investigative powers.

Mr McGlone: I appreciate that. I am trying to work out who requires more powers. Is it you or the coroner?

Mr Larkin: One of the issues often kicked around in the context of this debate is this; "Oh well, let us look at the whole coronial system down the line, and let us have a larger look at it". My view is that the best is — as it is so often, and this case is an example of that — the enemy of the good. Here is a measurable, deliverable reform that we can do now.

Mr McGlone: In conclusion, you are saying that the coroner's office does not have sufficient power to ensure that all the necessary information or evidence required in regard to some of these cases is gathered, but that you, with your proposals, will have sufficient power and, on that basis, this is the way forward.

Mr Larkin: Indeed, and that is the impression one gets from reading some of the legacy judicial reviews in a different context. In summary, in relation to what this will do, I very much agree with that.

The Deputy Chairperson (Mr McCartney): Thank you very much. We have now concluded that session.

I invite you to talk about the legislative provision in relation to the rights of audience for lawyers in your office.

Mr Larkin: Yes. If the first occasion was a sort of begging bowl on behalf of the wider public, this is a begging bowl with two parts: one is a selfish part, and the other is a public interest part.

The selfish part is in relation to cost. Obviously, there will be a saving if I can use the very talented and skilled lawyers in my office in a junior counsel role in the higher courts. The public interest aspect is that it struck me forcibly on a number of occasions that I have hugely skilled staff who have been working on files — particularly in the context of litigation involving charities in the Charity Tribunal. The matter goes on appeal to the High Court, and the person who is absolutely up to date with the information on files and who has the file at her or his fingertips has to step out and let the junior counsel in private practice get to a position where she or he is able to present the case adequately. This strikes me as a significant loss to the public, in the learning occasioned by participation in litigation and, prosaically, in money that the public spend when they do not have to.

Interestingly, the panoply of responses to what I have suggested range between the Bar saying, "Oh no, never" and the DPP saying, "Well, yes, but me too", and something a little vaguer, as one might have expected, from the Departmental Solicitor's Office (DSO) and, to a lesser extent, from the Crown Solicitor's Office (CSO).

It is understandable and perfectly proper that the Bar makes the points that it has made. It is important for me to emphasise that, as Attorney General, I am the titular head of the Bar and would not do anything that I thought would damage the independent Bar. I do not say this because I have some selfish interest in the independent Bar, from which I came and to which I hope to return one day, but because I think that the independent Bar is a hugely important aspect of ensuring access to justice for our citizens, and a hugely important aspect of protecting the rule of law in a free society. However, should the Committee decide to go forward with this proposal, a very small number of cases will use the facility.

That leads me to the second point, which is that the PPS doing it would have a potentially very large impact in relation to that of the independent Bar. Obviously, the director is independent in the discharge of his functions, as am I. That distinction is important, because this is not the case for the Departmental Solicitor, who is not independent in the direction of his functions. The "D" in DSO is, of course, DFP. The CSO deals with non-devolved issues, and therefore may be thought of as not being of huge concern to the Committee, at least at this stage, one way or the other.

As the senior law officer, I have a huge reputational stake in ensuring that the people I bring into cases do not let me and my office down. So, one can rest assured that I am not going to bring in someone, even to save money, if I think they will damage my office and the wider public interest it represents. I assure the Committee that that will not happen. This provision is very much a balance between the absolute negation that the Bar proffers and the "yes-but-me-too" approach of the other bodies. It plots a safe, median course between those two extremes.

The Deputy Chairperson (Mr McCartney): The Minister's view, in the consultation response, is that a mechanism is in place for all this.

Mr Larkin: There is not at present, but there will be. As you know, in Mr Ford's first Justice Bill, there is provision for rights of audience for a certain category of solicitor. He is right in stating that regulations to confer rights of audience would, invisibly, do so on all employing barristers. I am sure that the Committee will consider that matter down the line, when it comes, if it ever comes, to look at those regulations if they are ever made. The problem, and the reason why those regulations have not come forward yet, was identified recently in a Scottish case and was touched on in a judicial review challenge to the Bar rules just last month — on 19 January, if memory serves me right — about the deployment of senior counsel in criminal cases.

In the course of that interesting litigation, the Divisional Court touched on the issues of a conflict of interest. So, for example, if a citizen walks into a solicitor's office and is advised by that solicitor that they can have a solicitor advocate from within that firm, how can one avoid the rather striking potential for a conflict of interest in that setting? That problem has still not been got over. Indeed, the experience of the Scottish case, which is discussed briefly by our Divisional Court, is that that will be a real problem.

That means that the route that the Minister proffers is not really going to happen, not least because I am very concerned that there should not be a conflict of interests. So, I will be contributing to drawing attention to a problem that the divisional court has itself drawn attention to. It will not happen unless the Committee makes this kind of provision.

Mr A Maginness: Attorney, thank you for that. I think that that is very helpful. You emphasised the point, and, as a non-practising member of the Bar, I agree with you that the independent Bar is a very important element in our democracy. I think that people are inclined to forget that, but it is important. I will take an ordinary case by way of illustration. There may be a negligence case where a firm of solicitors believes that the client has a very good case and instructs a barrister to represent that client. The barrister sees the case and says, "By the way, this is not a good case. I have to inform you that your case is weak etc. You should really settle this case for x amount or whatever". I think that that independence makes a very important contribution to the citizen. I use that to illustrate the point about independence. I think that the same goes for other bodies such as the Public Prosecution Service, where the prosecution may be convinced that this is the right way to go and brings various charges and so forth and then goes to the independent Bar. The independent counsel, acting on behalf of the PPS, says, "By the way, I don't think this is a very good case. The charges are inappropriate etc. You should look at this afresh". I think that that is a valuable thing.

I am sympathetic to what you are saying about your own staff. I take it that the staff is made up of a fairly limited number of people.

Mr Larkin: You are talking about eight lawyers.

Mr A Maginness: Eight lawyers. Would that apply to solicitors or just to barristers?

Mr Larkin: Both.

Mr A Maginness: It is both. I know that you cannot give a precise figure of the number of cases that you bring per year, but —

Mr Larkin: It is modest. One could extrapolate from the potential that eight lawyers could conceivably be engaged in. Let me correct that. One could extrapolate from the potential that one lawyer — me — could conceivably be engaged in, because they will not be involved in cases on their own. It will be only when I am engaged in the case, so one can readily see that there is a —

Mr A Maginness: Mind you, this Committee is not too fond of two counsel in cases. I say that in jest.

Mr Larkin: Of course, the answer is that the cases that —

Mr A Maginness: I do not want to offend Mr Poots.

Mr Frew: We are just glad that it is getting through.

Mr Poots: The public prosecutor and I are on the same page.

Mr Larkin: Steering a way through the general hilarity, may I say that the cases in which I am involved are obviously very important? They are the cases that even the more austere-minded Committee members would agree would properly, in any context, attract two counsel.

Mr A Maginness: The point of distinction that I want to make is about your office, which is an independent office, representing what I would call the public good. Therefore, per se, you are bringing that independence on behalf of the Executive here, so the whole notion of independence is not the issue.

Mr Larkin: That is right.

Mr Poots: I think that one thing that Mr Larkin could not be accused of is not being independent.

Mr Larkin: I am grateful for that compliment, Mr Poots.

Mr Poots: I thought that you might take it as a compliment. Nonetheless, I did not quite pick up whether you were supportive of the notion of the PPS having the same rights as you.

Mr Larkin: No. If that were to happen, I think there is at least a risk of damaging the legal ecology. I think that the safe course, if the Committee is persuaded of this, is that this extension should be accorded to my staff. If I may say, we should go with that and see how it works. I am, of course, confident that it will work very well. If it does, it would seem to me that the next obvious step would be the PPS. However, that should not happen right away, because, in fairness to the Bar and the Law Society, it is being consulted only on the change that is happening in this office. It has not been consulted on a much wider change, which would certainly be a change with very significant ramifications.

Mr Poots: Yes, although Mr Hunter, representing the Law Society, was opposed to you receiving this as well.

Mr Larkin: Yes.

Mr Poots: I think that he referred to it as "piecemeal".

Mr Larkin: Some of the best reforms are piecemeal. I think that the people who have a totalitarian view of the world and want to change everything all at once often stand in the way of the more modest, measurable and deliverable reforms.

Mr Poots: What is the downside of this to the public?

Mr Larkin: None. There is no conceivable downside. There is a public saving, a preservation of quality and, in some cases, a quality that could bring enhancement, because you have someone who has worked with the file for longer. Take a private practice barrister, for example. Depending on the level of seniority, that barrister will, I hope, contribute to the case, but it contributes to the barrister. I do not mean that merely in a financial sense; the barrister learns from the case. That goes to service that barrister's personal career, whereas the learning that occurs for the lawyer in my office, who is working as junior counsel with me in the High Court, Court of Appeal or UK Supreme Court litigation, accrues to the public's benefit. So, there is a tripartite benefit. There is a cost saving, a preservation of quality, which in some cases brings an enhancement of quality, and a learning opportunity accrues to the benefit of the wider public. I think that it is a triple win in the public interest.

Mr Poots: Of course, none of that precludes your office from requiring particular expertise on a subject.

Mr Larkin: No, absolutely not; that is right. I give that reassurance to the Bar. In any case, that is precisely what I do when I think it appropriate and necessary, for the reasons that Mr Poots touched on.

Mr Poots: You have eight lawyers, and the PPS has around 160 lawyers. Clearly, it could take on a much greater volume of work than you, which would probably have a more disproportionate impact on the independent legal profession. Our responsibility, first and foremost, is to the public, not to any particular profession. Where is the downside for the public in that?

Mr Larkin: I can give you a personal assurance of the quality of the lawyers in my office. As one goes more widely in larger organisations, that becomes more difficult to personally assure, even from a conscientious head of a particular organisation. The director and the chief inspector of Criminal Justice Inspection have been working to improve advocacy standards, but I know that the chief inspector of Criminal Justice Inspection has historically identified issues with the advocacy in the PPS from time to time. I am very far from saying that this is not a step the Committee might one day choose to very actively look at; I am simply saying that now is maybe not the time for that.

Mr Poots: So, if we give the go-ahead for this, your office will put in a smaller application to the Department of Justice for funding for the following year.

Mr Larkin: One of Mr Poots's great gifts is that he can say humorous things with an entirely straight face.

Even he yields sometimes. We will be able to deal with increasing demands on our work in an era of increased financial stringency for everyone. Of course, it is OFMDFM that bears that particular responsibility.

The Deputy Chairperson (Mr McCartney): From my recollection, the director said that he was talking about a small number of his lawyers, not, I do not think, the whole team. I say that for the record.

Members, before we move on to the last item for the Attorney General, which is the charge of police corruption, there are a number of questions on the Justice Bill that we will write to him about. If members have questions for the Attorney General, I invite them to supply them to the Clerk. Once we get a reply, we might invite you back to reflect on those issues.

Mr Larkin: With pleasure, Chair.