Clause 6
4:00 pm
Tim Boswell (Daventry, Conservative)
I have merely introduced formally the amendments in this group standing in my name and that of my hon. Friend the Member for North Wiltshire. The Committee is owed both an explanation from me and an apology from him for his absence this afternoon. He is visiting forces in Afghanistan, which seems an entirely acceptable excuse—and possibly the only acceptable one—for his absence. I regret his absence. Although it is right that he and my hon. Friends should take an interest in the difficulties and realities that our services face in the region, he has a degree of expertise in this area in relation to military inquests. RAF Lyneham is in his constituency, so he has been closely involved with the Wiltshire coroner, as my right hon. Friend the Member for Witney (Mr. Cameron) has with the Oxfordshire coroner because of RAF Brize Norton. That is an accident of geography and service organisation, which probably had never been anticipated as the coronial system grew up, but it is a sad reality now.
Perhaps, by way of striking a consensual note at the beginning, I can say to the Minister, repeating what I said this morning, that I appreciate her efforts to report to the House on the development of the new defence inquest arrangements. It is a great improvement and has helped both the process and the inquiries. The purpose of the amendments is to make a counterpart disposition in relation to the families further to assist the process.
Let me now touch on the particular amendments at stake. I am sure that the acute textual critique of the Minister—and possibly of the hon. Member for Cambridge—will note some very slight differences between them, and potential contingent arrangements for fall-back positions if she found to my great surprise that she was unable to accept the full Monty at stage one. While the amendments are not absolutely perfect either in drafting or in inter-operation, they amount to a substantial package that would greatly assist families and also the inquiries, which we are busy on this afternoon.
The hon. Member for Stafford was particularly helpful when he responded to my intervention this morning. His new clause 11 is part of this group but it is not in my name. I have no particular difficulty with it—at least, not before he presents the case. We look forward to his comments at a later stage.
Let me go through my shopping list. Amendment 103, which is the lead amendment but not the substantive one, states that the coroner should make available information to the families. Amendment 98 relates to the provision of legal aid to families where a jury is empanelled. Amendment 102 makes the same provision in relation to cases in which the coroner wishes to make a report along the lines we were discussing this morning. Amendment 99 deals with cases in which there is to be—or may be—an appeal against the coronial judgment. Amendment 101 defines legal advisers to families as being interested persons for the purpose of the clause.
We then come to new clauses 12 and 13 and the hon. Member for Stafford’s new clause 11. My new clauses would make a general provision for the availability of legal aid to families in these types of inquest. As a modification variant on that—described as No. 2—new clause 13 suggests the waiving of means tests in this regard. In proposing the amendments, I am grateful for the comments of the Association of Personal Injury Lawyers. When listening to representations from particular interests, one should apply a health warning oneself. However, I have considered the matter carefully, in relation to my feelings of justice, and I am convinced that the approach is the right one.
Although I completely lack the expertise of my hon. Friend the Member for North Wiltshire on military inquests—the point on which many of us focus—I take a specific interest in the matter. Indeed, we once shared that interest when we were members—I remain a member—of the Parliamentary Assembly of the Council of Europe. I found our work extremely interesting; of course, it ends up with the European convention on human rights being served up with the rations. The convention is a very important part of our work and is taken seriously by all 47 member states. Britain is one of the founder members, and as such our response and example are cardinally important. The convention provides a very valuable safeguard and codification of decency in our public affairs.
Over the weekend, I reread the text of the convention and as ever was struck by two things: first, it is clear, straightforward and demanding, in particular, articles 2 and 3, on torture and ill-treatment; secondly, all the necessary qualifications that Governments must make to discharge their business are rehearsed there. The latter point will be the subject of amendments in later groups. It is not as though the nature of our responsibilities have not been considered before. As I said, the convention is a welcome codification of decent practice.
Let us consider what we should be doing for bereaved families during an inquest. Broadly speaking, the scope of our discussions includes persons who die in the care or custody of the state, or for whose death the state or public authorities might be seen to be responsible. In two respects, I shall come back to that point. The foci of this discussion are military inquests, with which we are now sadly familiar, and the perhaps less numerous but sometimes more politically contentious issue of deaths in custody or resulting from state-administered violence.
The convention, which does not oblige the holding of an inquest, imposes on contracting states an obligation to make and publish inquiries. I notice that the Minister is nodding; it is not an issue of contention between us. In relation to military inquests and deaths in state care or resulting from the activities of the state or public agents, we have made much progress on what might be termed the official side. I have referred already to the defence inquest arrangements, which are a great improvement. However, we have not made quite the same progress in relation to the bereaved families. There are two areas of concern regarding inquests: first, that they should consider the facts and decide whether any message for future decision making comes out of them; secondly, that they should provide a measure of closure for the families involved. That has begun to happen, but it has not quite happened.
We will deal first with the military inquests. I have heard the argument—and it would not necessarily apply only to this—that all that is needed is a single council to an inquiry. It is an inquisitorial system, not an accusatorial one, and a legally expert person could be appointed to prompt the coroner to call witnesses and cross-examine them and assist him in developing a conclusion in the matter. That is not an approach that would attract me, and I hope it would not attract the lawyers who are present here. I do not like the idea of single-capacity activities unless necessary, especially where separate interests are involved. We have to admit that there are interests; one of the effects of an inquest is likely to be that at some stage, it may lead to private proceedings, litigation, or, in certain cases, to criminal proceedings. These are not determined by the inquest or by the coroner’s verdict but are consequent on it, or rely on facts which may have come to light as a result of the inquiries. In cases of state killing particularly, which are perhaps the most sensitive of these, the state will usually expect to provide its own counsel. If the state is doing that, it is extremely invidious to the families involved if they are not themselves represented.
That leads to the specific issue of legal aid. The advantage of being a lay person without direct involvement is that when one reflects on this issue, one realises that it is slightly odd to talk about legal aid in relation to an inquest—the subject of the inquest is dead. Unless one is going to means-test the estate of the person involved, one must find someone else who may be a relative but who may be a person at some distance. That person’s financial circumstances, or their degree of interest in the outcome of the will or probate, might be quite small. On the other hand, there might be a major interest, which might be inhibited by the fact that a particular person was there but declined to put their treasure into the pot in order to fund the position.
I draw a contrast with what happens in public inquiries. I have had much to do with only one case, and my point is very tangential because—I am relieved to say—I was dismissed at an early stage without any censure. That was in the BSE inquiry under Lord Phillips, which took place in relation to the affairs of the Department of which I was a Minister in the mid-1990s. I came out of that with clean hands, so I was quite relieved. Some Ministers might have been at risk of being censured by it—although I think that they, too, came out of it relatively successfully—certainly, some senior officials were. It was immediately understood that the Government would pay the legal bills because they had acted in discharge of their duties as Ministers or senior officials. That is right. It is a principle that seems to read across to what is going on in an inquest where a death has taken place.
There is another point about military inquests. As the Minister said this morning, there are widely varying practices between countries regarding whether or not they have coronial inquests as we recognise them. Within the Anglo-Saxon tradition, say, inquests are relatively prevalent. My hon. Friend the Member for North Wiltshire reminded me recently of the Hercules crash in which, I think, 10 service personnel were killed.
One of those killed was an Australian national. There was a rather disturbing and distasteful situation because the Australian Government immediately stood behind their deceased service personnel and offered legal aid to the family, but the British Government were not prepared to do that on the same basis—although some people may have been able to get means-tested legal aid with some difficulty. So there are anomalies to be concerned about.
There are two other points that we should discuss and then I want to come back to the issues of principle before I close, because they are important. The first point is whether the assignment of an advocate, free of charge, to the bereaved family and their associates would make the process more adversarial or even prolong it, which might not be in anyone’s interests and might be distressing. For example, I am sensitive to the point that the hon. Member for Bridgend made this morning. I do not want lawyers to make a meal of things financially, nor do I want to create a very difficult position for the people who are involved. Nevertheless, it seems both normal and proper, particularly in inquisitorial proceedings, to have the various interests represented and the various perspectives of those interests and their advocates brought to the attention of the court and the coroner, so that they may reach their verdict. I see no sign that that process would have to be spun out inordinately, especially if the coroner was doing their job properly. I hope that whatever evidence was adduced would be useful to the inquiry.
The second point, of course, relates to cost. I am quite sure that the Minister will have considered the matters of cost and, indeed, her associates in other Departments may have some difficulty with them. In the end, one has to approach this with a consideration of what is fair and right. We do not, as it were, attenuate justice for people; we do not abolish the jury system to save money, for example. If it is necessary to spend money in this area, it is proper to do so.
It is also worth considering a point that the APIL has made. If there is an inquest, it may well lead to court proceedings. In fact, there may not be so much an additional increment to cost overall in terms of the Government, but some of those court proceedings will result in claims for damages and so on, and the inquest costs can be factored into the recovery that the Government would be able to make in a particular case. So it is by no means open and shut to say that this is just a charter for a whole tier of extra costs. Instead, I say to the Committee that it is very much a matter of what is reasonable and just.
That brings me to the two substantive points that I want to make in relation to court proceedings, first with reference primarily to service people and secondly with reference to what might be termed state-induced deaths.
Mr. Gale, I know that you asked the question, so you will remember an exchange that you had with the Leader of the House about a year ago, on 13 March 2008. She responded to the question that you put to her by saying:
“I agree with the hon. Gentleman that if bereaved relatives with no legal representation turn up on the steps of a coroner’s court and find that the Ministry of Defence and the Army have a great battery of solicitors and QCs, they cannot help but feel that the position is unfair.”
Clearly, I associate myself with that view. She went on to say:
“We need to give bereaved relatives at inquests a real sense of fairness and support.” —[Official Report, 13 March 2008; Vol. 473, c. 421.]
Later, she said:
“It is important to improve the Coroner Service so that bereaved relatives can get answers to their questions”.—[Official Report, 20 March 2008; Vol. 473, c. 1089.]
I agree with all of that.
Without going into the details of specific cases, the Minister will be aware that, from time to time, concern is expressed about, for example, the level of support given to troops, whether their equipment or training is fitting or appropriate and whether mistakes have been made, by friendly forces or otherwise. All those matters, unless they are of the highest degree of secrecy, seem to me entirely appropriate for an open inquest.
That brings me to my final point, about the proprietors of this. In relation to military service, I think my proposal is really part of the military covenant. If we are going to ask people to serve in the uniformed services or otherwise, in foreign locations on behalf of their country, and to put themselves in the line of danger, we have a duty to support them in their lives, and if they give their lives for their country, we have a comparable duty to their family, to see that justice is done and that reasonable inquiries are met.
Let us suppose that we extend that principle to the rather different area of state killings. I appreciate that the persons killed can be persons who are in certain cases not the best or most shining examples of humanity, criminals or otherwise, and there can be cases of accidental killing where this does not apply. In that area too we have an obligation, which dates back to the article 2 obligations that we undertook 60 years ago in the Council of Europe, to see that we do not kill except in the most precisely defined conditions, and that anything done in the name of the state, or as a result of the state, is done and explained publicly, and if necessary people are reproved for their errors.
I was very heartened by the remarks of the Secretary of State at Justice questions last week. In effect, he said that embarrassment—presumably to public authorities—is not an excuse for not having an enquiry. In even more striking terms, I would draw the Committee’s attention to the remarks made by the right hon. Member for Kingston upon Hull, East (Mr. Prescott), the former Deputy Prime Minister, who leads the British delegation to the Council of Europe. He was there in his position as a vice-president, on 30 January this year, which was less than two weeks ago. In the middle of a debate on Armenia, he made a statement that I admired—and I went up to him afterwards and told him so. It says everything we need to say about these proposals. In relation to Armenia and certain events there, he said:
“There should be an inquiry. In my country, we killed someone unlawfully, a Brazilian. We had a massive inquiry. It was a terrible tragedy. The authorities were wrong. It is important to hold an inquiry.”
I thought that was a splendid remark: blunt, straightforward and to the point.
To summarise, inevitably the state impacts on the citizen, both in terms of its own servants whom it puts in the line of danger, in all our interests, and in what it does either in incarceration or enforcement. I have left aside the issue about what is done in, for example, the nationalised state-provided health service, but you can look at that principle as well.
It seems to me that the basic principle referred to in our evidence last week is one of equality of arms. If we are not having a single-advocate single-function inquiry, but if we are having an inquest where the state with all its resources is represented by legal counsel, it seems to me inequitable not to offer the same opportunities to the families of the bereaved. That is particularly the case where their loved ones have gone to serve their country, but it is equally the case that the descendants and family of people who I was implying might be unworthy or undesirable, who have come into the way of the state and for whatever reason have been killed, should have the opportunity of getting to the truth of what took place, and hearing a public justification of it made, along the splendid lines adumbrated by the former Deputy Prime Minister.
This group of amendments is about resources and about giving access to advocacy. That is an essential part of this process. There are ways of doing it—as I said, even the convention itself is not prescriptive of the precise way of dealing with it. But the present situation, although it is improving in some way, particularly on the official side, has not gone as far as it should or as far as it would be just for it to go. I would urge the Committee to consider this with a view to taking matters further forward in the interests of justice, of the families involved, and ultimately of a better inquiry and exposure of lessons to be learnt whenever such tragedy occurs.