Clause 5
11:45 am
Henry Bellingham (Shadow Minister, Justice; North West Norfolk, Conservative)
This is a key clause, because it sets out the purpose of investigations. Our amendments 35 and 48, along with the Liberal Democrat amendments and the one in the name of the hon. Member for Stafford, are mainly about trying to learn lessons. They all aim to ensure that future deaths are prevented.
Amendment 39 is a legal aficionado’s point. It involves quite a complicated argument, with which I do not plan to detain the Committee for long, but we need a full explanation from the Minister. Maybe this is an opportunity for the hon. Member for Cambridge to chip in, because he was a distinguished law fellow at Cambridge university. If I had been taught by him, my law degree might have been slightly better than it was.
Clause 5(2) seeks to codify into statute the provisions of R on the application of Middleton, the HM coroner for the western district of Somerset and Avon 2004 2AC182. The Government say that 5(2) is needed to ensure compliance with ECHR article 2, which relates to the state’s responsibility to ensure that its actions do not cause the death of citizens. The Bill—I find this surprising—does not define the precise circumstances when a coroner should conduct an article 2 investigation. I listened carefully to what AndrÃ(c) Rebello had to say to the Committee in the evidence-gathering session:
“I have concerns regarding matters to be ascertained at an inquest in clause 5, because the draftsman has taken the words of Lord Bingham in the Middleton case and enshrined them in clause 5(2)...It is far better to leave clause 5 as ‘how’, where how means in some inquests ‘by what means’ and in other inquests ‘by what means and in what circumstances’”,
which is, of course, what article 2 would lay down. He takes the view that
“It would be far better to leave out clause 5(2), so that ‘how’ means whatever the common law says it means for the time being. If we are now reforming the 1887 legislation, I am fairly sure that in 2051 the law will have developed somewhat, and I do not think it right to tie the hands of the European Court and the House of Lords with regard to developments.”——[Official Report, Coroners and Justice Public Bill Committee, 3 February 2009; c. 56, Q119.]
I had a word with Mr. Rebello afterwards, and I have looked at the judgment that he quoted. I have also spoken to learned sources, who take the view that the Government should explain why they feel that AndrÃ(c) Rebello is wrong and that subsection (2) should remain in the Bill.