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With this it will be convenient to discuss the following: amendment No. 33, page 45, line 23, leave out subsections (b) and (c).
Amendment No. 2, page 46, line 21, leave out clause 66.
Amendment No. 35, clause 66, page 46, line 34 , leave out subsections (b) and (c).
Amendment No. 3, page 47, line 30, leave out clause 67.
Amendment No. 119, clause 67, page 47, line 35 , leave out 'Secretary of State' and insert
'Lord Chief Justice of England and Wales or the nominated senior judge'.
Amendment No. 37, page 47, line 36, at end insert
'provided that such a person has been specifically approved for the purpose by the Lord Chief Justice of England and Wales.'.
Government amendment No. 70, page 47, leave out lines 37 to 40 and insert—
'( ) The Secretary of State must establish and maintain a list of coroners eligible to be appointed under this section ("the approved list").
( ) A coroner may be included on the approved list only with the agreement of the Lord Chief Justice of England and Wales or the nominated senior judge.
( ) A person may be appointed under this section only if—
(a) the person is—
(i) a coroner on the approved list,
(ii) a puisne judge of the High Court in England and Wales, or
(iii) a circuit judge, and
(b) the Lord Chief Justice of England and Wales or the nominated senior judge agrees to the person's appointment.'.
Amendment (a) to the proposed amendment, line 1, leave out 'Secretary of State' and insert
'Lord Chief Justice of England and Wales or the nominated senior judge'.
Amendment (b) to the proposed amendment, leave out the second proposed subsection.
Amendment (c) to the proposed amendment, in paragraph (b) of the final proposed subsection, leave out
'Lord Chief Justice of England and Wales or the nominated senior judge' and insert 'the Secretary of State'.
Government amendment No. 71.
Amendment No. 120, page 48, line 32, at end insert—
'( ) must hold the inquest in the same district,'.
Amendment No. 121, page 48, line 40, leave out 'Secretary of State' and insert
'Lord Chief Justice of England and Wales or the nominated senior judge'.
Amendment No. 38, page 48, line 46, leave out from 'to' to end of line 47 and insert 'the affirmative resolution procedure.'.
Amendment No. 39, page 49, line 1, after 'may', insert
', with the prior consent of the Lord Chief Justice of England and Wales,'.
Amendment No. 122, page 49, line 8, leave out 'Secretary of State' and insert
'Lord Chief Justice of England & Wales or the nominated senior judge'.
Amendment No. 40, page 49, line 8, after 'may', insert
', with the prior consent of the Lord Chief Justice of England and Wales,'.
Government amendments Nos. 72 to 74.
Amendment No. 10, page 50, line 4, leave out clause 69.
The amendments all refer to part 6 and the provisions on inquests and inquiries. This is the first chance that we have had to debate these matters on the Floor of the House. Part 6 was tacked on to the Bill very late, and the first observation to make is that although the Bill deals with terrorism, the provisions in relation to inquests go way beyond mere terrorist cases—they are much broader than that.
My amendments Nos. 1, 2 and 3, which are tabled to give effect to recommendations of the Joint Committee on Human Rights, effectively delete the operative parts of part 6. Our argument is that those should be incorporated in the forthcoming coroners Bill and dealt with as part of the general reform of coronial law.
Article 2 of the convention imposes a positive obligation on the state to provide an adequate and effective investigation when an individual is killed as a result of the use of force, particularly where the death is the result of the use of force by state agents. The person conducting the investigation must be independent from those implicated in the events, and there must be a sufficient element of public scrutiny to secure accountability in practice as well as in theory. The inquest must involve the next of kin to the extent necessary to protect their legitimate interests.
The Bill provides a new procedure. The Home Secretary will be able to issue a certificate stating that the inquest should be dealt with rather differently, without a jury and with a special coroner if it is in the interest of national security or the interest of the relationship between the UK and another country, or otherwise in the public interest. Those are very broad exceptions indeed, going way beyond the issue of terrorism, as I said—and with no jury, but a specially appointed coroner.
The Government are tabling their own amendments to tweak details of the appointment of the coroner, but in practice they are a fig leaf. The Lord Chief Justice or another senior judge will approve the appointment of the people on the list prepared by the Secretary of State for Justice and the appointment of the individual coroner in a particular case, but will not deal with the key question whether it is appropriate to hold a special inquest in the first place. The Government say that that is an Executive function because the Secretary of State is privy to sensitive information and the overall intelligence picture, which the Lord Chief Justice is not, but there is no reason why he could not be in any individual case.
The Government's response to our various reports and recommendations on the matter are, first—and this I find the most bizarre argument—that they will facilitate an independent inquest. Far from it. They say that they will allow an independent finder of fact to see all the material, that the office of coroner is an independent judicial office, that it would be incompatible if material central to the case were not considered, and that the investigation would have to proceed but could not if material could not be disclosed in open court.
First, if all that were true, which I do not think is the case, does it amount to a counsel of perfection? Secondly, the obligation is to provide an adequate and effective investigation and all those factors necessary for it. The proposals will not give closure to relatives; not give the public confidence that any lessons have been learned; not provide an adequate and effective investigation or the element of independence; not provide for public scrutiny; and not involve the next of kin—the four elements required by article 2, which I mentioned earlier. The Government's proposals allegedly comply with the requirements of article 2, but they do exactly the opposite. They comply with article 2 not by a jot or tittle.
Is my hon. Friend aware that when Nicholas Blake produced a report given to the Government on the deaths at Deepcut barracks, he said that the families of the soldiers who had died should find their answers through the inquest system because the Government said that there should not be a public inquiry. Does my hon. Friend agree that under these provisions the families would never have found any answer to the deaths of their loved ones?
My hon. Friend makes an important point. The real question is whether the Deepcut cases would have ended up with a special inquest. If the Government resisted a public inquiry, one can only assume that they would probably have resisted an open inquest as well. She is right: in those circumstances, the families would have no closure and no knowledge of what had happened.
A further problem that would be faced by the families is that a coroner might, on the basis of closed material, return a verdict of unlawful killing. No prosecution could arise from that verdict of unlawful killing because the information that was crucial to that finding would not be available to the court. That illustrates the oddity of proceeding with these provisions before the issue of intercept evidence in court has been resolved in the way that the Judicial Committee of the Privy Council has recommended.
The right hon. Gentleman makes an important point. I agree.
What is proposed in part 6 is no more and no less than a system of secret inquests for exactly the sort of cases that should be held in the open, where the state is potentially implicated. Independence is essential in such circumstances, and a Secretary of State-appointed coroner, even with the fig leaf of the Lord Chief Justice or other official, would have no hope whatsoever of satisfying that independent test.
What makes matters worse, in a sense, is that the originating certificate is issued by the Secretary of State, who may very well have a departmental interest in not holding a public inquest.
The right hon. and learned Gentleman is entirely right. That goes to the heart of the question of independence, particularly if the Ministry of Justice is involved, the Secretary of State appoints the coroner and the case happens to involve a death in custody, or if the Home Secretary is the Secretary of State involved, and the case involves a shooting by the police, as in the de Menezes case, for example. One can think of a raft of examples in which, on the face of it, the Secretary of State may to a greater or lesser degree be implicated. It is not just a question of whether they are implicated; it is a question of justice being seen to be done, and if there is even a suspicion of implication, that undermines the whole concept of independence in the provisions.
I compliment my hon. Friend on his speech. In his capacity as Chair of the Joint Committee on Human Rights, is he aware of any current procedure that allows an inquest to be held in camera, or allows denial of evidence to be made public, or anything remotely similar to what we have at the present time? Does he know of any other European countries that adopt the system proposed in the Bill?
On my hon. Friend's first question, public interest immunity certificates can be used, and I will refer to them shortly. I cannot help him with regard to the European experience, but bearing in mind all the arguments that we have had on the Bill about international comparisons generally, I prefer not to go down that route. If he has such knowledge, I will be happy to hear from him.
The hon. Gentleman touched on an important point, which is the lack of clarity in respect of who the Secretary of State is. One might have expected that if this was a judicial process, it would be confined to the role of the Lord Chancellor, even though I agree with the hon. Gentleman that there are problems there because the Lord Chancellor is also the Secretary of State for Justice and in charge of prisons, so there can be a conflict of interest. But the Bill, as it stands and even as amended by the Government's proposals, does not specify that it has to be the Lord Chancellor and Secretary of State for Justice at all, which for me raises even greater anxiety about the fact that there seems to be a mixing of administrative and judicial process.
The hon. and learned Gentleman is entirely right. That is why I gave two different examples. My understanding, based on what I have read and not on what is in the Bill, is that the list will be maintained by the Secretary of State for Justice. The hon. and learned Gentleman is right that it is not in the Bill, but it should be, if we are to go down this route. I hope that it will not be because I hope that the House will agree to my amendments to take all this out. But if it is not the Secretary of State for Justice, one can only assume that it will be the Home Secretary and, in those circumstances a whole raft of other possible conflicts of interest and therefore lack of independence potentially arise.
The hon. Gentleman mentioned public immunity certificates in his response to the intervention of Jeremy Corbyn, but am I right in saying that rule 17 of the coroners' rules 1984 enable a coroner to direct that the public can be excluded from an inquest or any part of an inquest if he considers that it will be in the interests of national security? If that is the case, what we are debating as part of the Bill is completely unnecessary and totally over the top.
I thank the hon. Gentleman for that intervention. He is right, and it is a point that I intended to make later, but I am happy to have it made now.
The next comparison to make here is with criminal cases. We have criminal cases prosecuted before a jury and we have criminal cases prosecuted before a judge—not a specially selected jury and not a specially selected judge, but as part of the ordinary criminal process. In those cases, the Secretary of State cannot pick and choose his jury and cannot pick and choose his judge, even if they are dealing with sensitive security matters. All the terrorist trials that we have seen in the last several years have been conducted through the ordinary criminal courts, so why do we need a separate process for something that is rather less than a criminal trial—the inquest system?
We must remember that a criminal trial in a homicide case is, in effect, a substitute for the inquest anyway. An inquest will not normally follow a criminal prosecution for a homicide offence. The Minister may well say that in a criminal trial the prosecution always has the option not to proceed with a trial and it does not have that option in the inquest sphere, but I find it difficult to believe that we will find a case involving a terrorist that is not prosecuted because it is for the convenience of the Secretary of State to keep matters private.
What sort of cases are we dealing with? The European Court has looked at some of these. In the Mubarek case, Lord Bingham summarised the purposes of an inquest as follows:
"The purposes of such an investigation are clear: to ensure as far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."
This process does not provide any of that. The point that I would particularly emphasise is that this is not a counsel of perfection. Lord Bingham summarises it quite accurately by saying
"to ensure as far as possible".
My understanding—it may be the hon. Gentleman's—is that the reason why the Government suddenly came forward with these proposals was a problem encountered in one particular case, which interestingly enough is not terrorist related. Does he agree that the oddity is that the anxiety that the full facts should emerge in that one particular case, which is given as the justification for the change, seems in a way to be completely counterbalanced by the fact that even if the facts emerge correctly in that case and in the way that Government intend through this process, there will not be the transparency that will enable the verdict to be accepted?
The hon. and learned Gentleman is right. I was going to refer to the fact that I understood that this was all triggered by one case in which the inquest has been stalled. So we run the risk of creating this whole part of the Act, and this whole new superstructure, for one case. That one case is clearly very distressing for the family concerned because of the fact that they do not know what happened to their loved one, but this is a matter of convenience. As the hon. and learned Gentleman says, supposing that that one inquest is then allowed to complete, the family will still not know what has happened to their loved one. They still will not know whether the lessons have been learned. They still will not have closure on the case, so it achieves very little for those people anyway. It makes far more sense not to legislate in haste, but to look at this as part of the overall comprehensive review of the coroners Bill, which we know is coming in the next Session.
That family may have to wait an extra year—an extra year of distress. I know what it is like because, when I was in practice, I dealt with dozens of fatal cases, and every one is special to the family concerned, but every one of those families wants to have closure in one way or another, and this process will not deliver that.
What sort of cases are we talking about? Deaths in custody, such as the Mubarek case, perhaps, or the de Menezes case, the shooting at Stockwell tube station. That inquest has been adjourned and is due to reopen later this year. If the Bill goes through, will the Secretary of State issue a certificate in relation to that case before the inquest resumes, because the process can be triggered in relation to an already opened inquest—
Order. I am sure that the hon. Gentleman is well aware of the sub judice rules. He should be careful what he mentions at this stage.
I take your constraints, Mr. Deputy Speaker. I simply say that the inquest is due to reopen later this year and that people can draw their own conclusions.
This process could, for example, apply to the Deepcut barracks case that was referred to earlier, or the death of the service people in Iraq, all potentially an embarrassment to the Government and the Ministry of Defence, as we have seen from some of the inquest verdicts so far. They are precisely the sort of cases that should not be subject to this process, which should have the transparency required by article 2 and not be swept into the secret inquest process being proposed by the Government through part 6.
I agree with the hon. Gentleman that these are exactly the cases that should be given publicity. Even if one were to accept the premise that there are circumstances in which evidence could not be put before an inquest on the grounds of national security, has his Committee considered any possible reasonable interpretation of the other provisions that an inquest should be held in secret because of the interests of the relationship between the United Kingdom and another country, or this vague term
"otherwise in the public interest"?
Are we in the business of not holding inquests in order to save embarrassment to foreign princes?
The hon. Gentleman makes an important point. We have very interesting relations with Saudi Arabia, as we all know. Let us suppose that somebody died in Saudi Arabia in circumstances that might be embarrassing to the regime. Let us suppose that someone was even executed by that regime. In the end it could be very embarrassing indeed, and therefore we would have the inquest in secret.
We know that the jury will be excluded from special trials, and the implication is that the family will also be excluded and will not know what is going on. Are the family seriously expected to take the specially appointed coroner's word for what happened to their loved one, which would extend only to what the specially appointed coroner could tell them? It is difficult enough for families to accept verdicts under the existing open system, given the number of challenges to coroners' verdicts, and it will be more difficult under this process.
The hon. Gentleman has made an important point, namely that the family will have great difficulty in accepting the verdict of the specially appointed coroner. That difficulty will be aggravated by the fact that the specially appointed coroner will be appointed by the Secretary of State, who may have a departmental interest in the matter. In other words, the public may see the specially appointed coroner as the Secretary of State's man.
The right hon. and learned Gentleman has made his point, and I do not disagree with it.
Juries are an essential part of the process. They are used in about 2 per cent. of inquest cases, which are the contentious ones—deaths at the hands of the police, deaths in custody, deaths in prison, health and safety cases and other matters to which I have referred. The situation is crazy, because the implementation of the process is unnecessary. Public interest immunity certificates apply to inquests, so, as has been said, the Government could persuade the coroner to withhold sensitive material or to exclude the public.
The use of PII certificates has been upheld in two cases against the United Kingdom, so it has been found that such restrictions are compatible in principle. In the case of Jordan v. UK, a father alleged that his unarmed son was shot and killed unjustifiably by a Royal Ulster Constabulary officer. When the European Court rejected a complaint about the frequent resort to PII certificates to prevent the disclosure of certain documents on the grounds of national security, it stated that
"the Court finds no indication that these certificates have prevented examination of any circumstances relevant to the death of Pearse Jordan."
The best example is McCann v. UK—the death on the Rock case. The families of the three suspects shot dead by the SAS on Gibraltar alleged a breach of article 2 of the ECHR because of the use of PII certificates by the Government. If that incident had happened under the process in the Bill, it would be a prime candidate for the secret inquest process. At the time, the ordinary inquest process was used including PII certificates. Again, the Court rejected the complaint that the inquest had been an inadequate investigation, stating that
"it is not necessary in the present case for the Court to decide what form such an investigation should take and under what conditions it should be conducted, since public inquest proceedings, at which the applicants were legally represented...did in fact take place. Moreover, the proceedings...involved a detailed review of the events surrounding the killings...the lawyers acting on behalf of the applicants were able to examine and cross-examine key witnesses...and make the submissions they wished...The Court does not consider that the alleged various shortcomings in the inquest proceedings...substantially hampered the carrying out of a thorough, impartial and careful examination of the circumstances surrounding the killings."
A council of perfection is unnecessary; returning to the original test, what is important is that the inquest is held adequately. An inquest does not have to consider 100 per cent. of the evidence, because its purpose is to establish the cause of death, and the matters that I have mentioned would not be met by those arrangements.
The hon. Gentleman is making a compelling case against the Government. Does he agree that his remarks reinforce the point that the Government should withdraw the provision and await the publication of the coroners Bill, which will come before the House in the next Session? It makes more sense to take a long hard look at the situation, rather than rushing through a provision in this Bill.
That is my next point. Amendments Nos. 1 to 3 would ditch this part of the Bill, and I hope that the Government accept them. If we were to review the process in its entirety, we could examine PII certificates, the exclusion of the public and the role of the coroner in excluding evidence—we could even consider security- vetting juries. There is a series of other options that would enable an inquest to be held in public without going through the rigmarole of a secret inquest. The fact remains that the provision has nothing to do with terrorism; it concerns a secret system for investigating deaths that might be embarrassing for the Government, and that system cannot be allowed to stand. The measure is far too broad for inclusion in the Counter-Terrorism Bill, and it should wait for the publication of the coroners Bill. The situation will be difficult for the one family whose inquest has been stalled, but we should not legislate in haste to solve one case's problems. Let us be sensible and throw out the provision.
I rise to support amendment No. 1, which is necessary and essential to preserve the integrity of the coroners' courts system.
Uncharacteristically, I have a measure of sympathy for the Government, which I shall explain before I discuss why they have taken completely the wrong turn. I accept that the distinction between a coroner's court and a criminal trial is that one involves an adversarial system from which the state can always withdraw itself, if it is so minded, whereas the coroner's court involves an inquisitorial system designed to answer a certain number of questions. A coroner's court does not include the option of not having an inquest.
In the light of the recent case where the inquest has been halted because the Government want to use intelligence material that is available to the police to present their case, I see that the Government have a problem. Some have imputed sinister motives to the Government given the way in which they introduced the provision, but I do not share that view. Faced with a particular issue—this is usual in bureaucracies—the Government have tried to find a solution, but they have failed to see the wood for the trees.
The Government have come up with a system that would immediately appeal to any Administration, because it seems to resolve the problem in a simple manner, but actually it will not meet the interests of justice. Leaving aside the way in which coroners are appointed—I will return to that issue, because the Government have made some sensible concessions, although they have not done enough to attract my support for the measure in its totality—the Government say that coroners need to use intelligence material in order to obtain a full understanding of the background circumstances to an individual's death. They want to appoint a safe pair of hands, because that person will have passed all the necessary tests to handle such information and will come up with a fair conclusion based on the intelligence material and other facts.
As Mr. Dismore has said, the difficulty is that such a verdict would be incomprehensible to the people most directly concerned. Such people would not have any faith in the verdict, because many of the building blocks on which it was made would have been kept secret from them. That is the issue with which the Government have to grapple. There will be the element of secrecy, and those secrets will be imparted to only one individual, however worthy and well appointed. Even with the Government's safeguards on the manner of the appointment of the special coroners, absolutely nobody will be persuaded that there has been a fair process.
Having listened to what the Government said in Committee and, I might add, having had a briefing by Home Office and Ministry of Justice officials about the matter, I was in some ways quite sympathetic to the problem that the Government were facing. However, the more I reflected on the issue afterwards, the more convinced I became that I preferred a flawed and imperfect coroner system that was open over one brought in for these exceptional cases that turned out to be unacceptable to the people whom—in part, at least—it was intended to benefit; I am thinking of the relatives and others. Furthermore, such a system plainly would not provide public reassurance.
Obviously, my hon. and learned Friend's discussions with Home Office and Ministry of Justice officials would have been totally off the record. However, did they give him any indication on why existing procedures and the existing situation were not sufficient to achieve the Government's ends? That is what I find unfathomable.
The Minister may be able to amplify the position when he responds. I was left with a twofold impression. I hope that it is not unreasonable; the Minister will correct me if I am wrong. The first aspect was that a case had come to light—it had nothing to do with terrorism, I might add—in which there was a difficulty from the point of view of the state in having the inquest conducted; I emphasise that it was the state's difficulty. In such circumstances, it would suit the state and the police if material likely to help explain the circumstances of a death could not be submitted—because it was intelligence-derived and would cause difficulties. Coupled with that was the fact that, given the problems in the context of terrorism and terrorist-related deaths, or other deaths, I detected that the Government saw a problem in trying to deal with that particular area, that that problem might grow in future, and that the problem was more germane to terrorism.
Also, any consequent legal proceedings—whether judicial review of the coroner's decision or an attempt to mount a prosecution or civil action arising from the coroner's verdict—would not have access to the evidence. Would not proceeding with the clauses before we have finished assessing whether we can use intercept evidence in court not make things even more absurd?
The right hon. Gentleman pre-empts me; he is absolutely right. What he says must be the case. The provision would solve the Government's problem in that they would end up with a verdict with which they were satisfied. The coroner would say, for example, "I am wholly satisfied that the police were justified in shooting this person. These were the facts and circumstances and in addition material that helps me to come to that conclusion has been given to me." However, it would do absolutely nothing to enable relatives to challenge that decision or bring civil proceedings. The other interesting consequence is that if the verdicts seem to suggest that a criminal offence has been committed, that may in many cases be impossible to prosecute because the intelligence material would not be admissible.
My hon. and learned Friend is making a point about the public acceptability of inquest decisions. He will have in mind the decision of Lord Justice Scott Baker that there should be a jury-based inquest into the death of Princess Diana. The reason was that, otherwise, the conspiracy theories would not be dispersed. The decision to have a jury in that inquest is the clearest possible evidence of the need to retain jury-based inquests in matters of public sensitivity.
I agree entirely with my right hon. and learned Friend. I hope that he will forgive me; in developing my arguments I have tried to treat the two issues separately. I was moving on to the question of the jury. Even if one accepted that in some circumstances we should dispense with the jury—although it is normal to empanel a jury for consideration of controversial deaths—and even if one accepted the notion that an individual should come to the decisions, the burden to be placed on that individual would make his job intolerable in respect of commanding any public acceptance. He would be explaining decisions in a partial fashion, but they would not stand on their own, precisely because, as Mr. Beith said, other consequences might flow from it and make it even more profoundly unsatisfactory.
That task would be made impossible if there were a process of certification through the Secretary of State, rather than through an application to the court, and if the specific coroner had been selected by the Secretary of State. Even under the newly improved appointment process, it cannot be right that a Secretary of State should decide who would be the most appropriate coroner to hear a case in which that Secretary of State had an interest.
I agree entirely with the hon. Gentleman; we come back to the rather administrative way in which the whole thing seems to have been put together. Reading the original proposals, one sees that this was an administrative process, with the Minister wholly controlling it—the choice of the coroner, the selection of the special coroner and the special certification—without any intervention by the judiciary.
Perhaps we can go back over the history of how coroners' courts have always been distinct from other courts in our country. However, if there is a way forward for coroners' courts, I am absolutely sure that it is to bring them into the mainstream of our court system. I say that irrespective of these proposals. To move down a road that starts on the premise that we will put into operation a series of measures that appear to exclude the judiciary almost entirely—except that some of the decisions could be judicially reviewed—would be completely wrong.
In fairness to the Government, I should say that, having been lambasted in Committee on the issue, they have attempted to start to try to restore the situation. I am the first to accept that there have been improvements to the Bill and these measures as a result, particularly in involving the role of the judiciary and the Lord Chief Justice more fully in approving the special coroners and in changing some elements of how the process would operate.
For all that, we are merely tinkering at the edges of the problem. The longer this debate has gone on and the more I have thought about it, the more convinced I have become that the Government have simply taken a completely wrong turning. If this debate fulfils a purpose I hope that it is to persuade the Government that we are not ranked up against them to try to give them a hard time on these proposals—leaving to one side what will happen to the provisions in the other place, which may well find itself not very happy—but we genuinely think that if they go ahead and succeed in putting them on the statute book they will be an albatross around their neck and that of any successor Government. My gut reaction is that the process will constantly be thrown back in their face by people saying, "We have here a system which is unworkable and doesn't command public confidence."
May I ask the hon. and learned Gentleman to reflect on a point that relates to the Scottish element of this matter? This relates to national security and the way in which intercept and intelligence material could be presented to a particular court, in this case a coroner's court. The Bill is strangely silent on the parallel process in Scotland. There seem to be no provisions relating to the fatal accident inquiry in Scotland. I suppose that part of the reason for that rests with the minority Administration who now reside in Holyrood. They have ducked this issue as well and kicked their review of the fatal accident inquiry off into some time in the far distant future. That may add grist to the hon. and learned Gentleman's mill, and I ask him to take it on board.
I very much take it on board. I hope that the Minister will provide an explanation of how the Government are approaching that. The situation is partly helped by the fact that Scotland has its own legal system, so mercifully, perhaps, we are not capable of interfering with it, or at least not interfering with it quite as radically as the Government might wish if they had the opportunity. This is a seriously flawed procedure.
Moving on to the issue raised by my right hon. and learned Friend Mr. Hogg, the jury system exists in coroners' cases to give public confidence, and it works well. I have done jury cases in coroners' courts, and in my experience juries are capable of taking in the evidence and giving verdicts that accord with the evidence. Indeed, the Diana, Princess of Wales inquest was a model of its kind. Although it was carried out in the most difficult circumstances, and was very costly, it appears to have commanded widespread public acceptance. A Lord Justice of Appeal was brought in because that expertise was required. All that was possible under the existing coroner system.
What is the point of suddenly dispensing with juries? As the hon. Member for Hendon said, it is possible to have specially vetted juries, to have public interest immunity certificates, and to treat these processes as ordinary hearings. I very much agreed with his point about the requirement laid down by the European Court of Human Rights, which is highly relevant—that is, to do one's best in carrying out such inquiries, not to try to cross insurmountable obstacles. There is a considerable degree of understanding that there may be problems that make the evidence being presented to inquests inadmissible and one must do one's best, in a human and fallible world, to come up with the best answers.
If we could get intercept evidence admitted in cases more generally, which we have frequently argued about, I have little doubt that we might start moving in the right direction on inquests just as on any other kind of trial. However, to try to create a short cut—with the best of motives, I am sure—is a mistaken road, and these proposals are not capable of being salvaged by anything that the Government can offer. We are expecting a coroners Bill. If we had a delay of a year while we went away and thought about what needs to be done and the Government came forward with other ideas and proposals in the context of their planned reforms to the coroner system generally, that would be a sensible approach. Legislating quickly and repenting at leisure is a big mistake.
I will listen with great care to what the Minister says. I have no animosity towards the Government on this issue. I can see that they have a real problem, but the answer that they have come up with is profoundly and fundamentally wrong. This House has a major responsibility in upholding confidence in the law and the rule of law and in ensuring that deaths are properly investigated, particularly where there are issues of sensitivity surrounding possible state intervention, and it should not have anything to do with a set of proposals that will ultimately bring the Government into disrepute.
I listened with great care to my hon. Friend Mr. Dismore, who made persuasive and cogent arguments on this important issue. He started by explaining the purpose of an inquest and asked what the purpose is of finding out the facts about a death if the circumstances are then to be kept hidden. The Government need to explain that key point in moving ahead with these provisions.
On Second Reading, I made the point that such issues should be debated when considering the coroners Bill. Since then, I have had the opportunity to examine the Committee reports regarding these provisions. In Committee, the Minister explained that he wanted to look at one particular case, and he feels that the provisions are the way to deal with it. We of course cannot know what that case is, but I do not question the fact that the Government want a way out of a problem, and are moving to solve it.
One of the issues that the Government must face is that most of the families affected by coroners' inquests will be asking who else will be included in the remit of these provisions. Will loved ones be a part of it, or will they, too, fail to get the clarity and answers that they require? As has been said, many families who lose loved ones and attend a coroner's inquest know that they will not get all the answers, but at least they will have an opportunity to hear the evidence, and the coroner can then make some determination, even if it is an open verdict or a verdict of death by misadventure. If they are not there, they do not even have that small solace.
I would like my right hon. Friend the Minister to address the issue from the family's point of view. If it is decided that a coroner's court will meet without a jury in special circumstances, what information can be given to the families so that they have details of what has happened? I mentioned the Deepcut deaths. I chair the all-party group on Army deaths and I have met the Deepcut and Beyond families. We have had coroners' inquests under article 2 procedures with juries, and families have learned so much more from them. Even if they do not get a final answer, at least they are getting some answers. Recently, we had the second inquest into the death of Private James Collinson, and after that the families at least felt that their concerns had been listened to, which is what they want. Sir Nicholas Blake, in his report for the Government on the Deepcut deaths, saw coroners' inquests as the way forward for those families and others. How can the Minister take forward families' heartfelt wish for clarity and for closure, if they can find it? Will they be entirely excluded from the procedure or, in certain circumstances and with caveats, will information be released to them to satisfy their needs?
When it comes to Army deaths, I wonder how the boards of inquiry, and the fatal accident inquiries in Scotland, will link with secret coroners' courts. The Army is increasingly involving families in boards of inquiry, sending them transcripts so that they have some idea of what happened in that internal inquiry. If an Army death is to be the subject of a secret inquiry, how will the BOI process link with that?
I appreciate my hon. Friend's great knowledge and her involvement in the issue, but I must correct her on one point: fatal accident inquiries in Scotland do not need to inquire into deaths abroad—in fact, they are precluded from doing so. There needs to be a change in the law in Scotland to deal with the point that she raises, but that is being ducked by the current Administration in Scotland.
I thank my right hon. Friend for that. I do not pretend to understand English law, let alone Scottish law. I am a non-lawyer. However, many of the deaths looked into by the families involved in the Deepcut and Beyond campaign happened in this country in peacetime. I doubt very much whether those deaths would fall within the remit of clause 65, but the problem is that we do not know, because it is drawn so widely. I therefore seek reassurances from my right hon. Friend the Minister that he will address the needs of those families.
Is not the point that my right hon. Friend Mr. Ingram made, about the possible anomaly created by the law that the Bill would introduce and the situation in Scotland, an argument for the withdrawal of the relevant provisions, so that everything can be considered properly in the context of the coroners Bill?
My hon. Friend makes an interesting point. On Second Reading, I argued for the withdrawal of the relevant provisions. However, I have read what was said in Committee and I hear what the Minister said about a special case that needs to be addressed in a special way.
I will accept what the Minister said, but if the Government are not going to withdraw clause 65, they need to consider what will happen when the coroners Bill finally comes before the House. We could be here debating the issue again in a year's time. The Government will be looking into the wider parameters of the coroners Bill, because there are many problems with the coroners system and huge delays. Indeed, I know of a peacetime death in barracks in this country that happened five years ago next month that has still not been the subject of a coroner's report. Things therefore have to move on.
Can the Minister give me any assurances that when the coroners Bill comes before the House, we will have an opportunity to engage with the issue again? What we are debating today will have consequences for the coroners Bill. If the Government do not withdraw clause 65, there will be an opportunity over the next few months to learn the lessons of this special case and see how it could be better addressed in a wider review and restructuring of the coroners system.
Finally, paradoxically, many families involved in Army deaths want special coroners, but they do not want them in the circumstances that we are discussing. I have spoken to individuals in the Royal British Legion and to the families involved in the Deepcut and Beyond campaign. They admire the work done on Army deaths by the Oxfordshire and Wiltshire coroners, who have built up a huge amount of expertise. If we are going to have special coroners, they should bring expertise and particular skills to a situation, not secrecy.
I therefore welcome the Government's amendments to introduce a role for the Lord Chief Justice, but there are still too many questions unanswered. I read what my right hon. Friend the Minister said in Committee, but he needs to give a lot of reassurances about the breadth of the provisions that we are debating, particularly to the bereaved families who want answers, and about how we can take the matter forward when we debate the coroners Bill.
It is a great pleasure to follow Mrs. Humble, who made a number of very important points. On this issue, it is also a pleasure and honour to follow both Mr. Dismore and Mr. Grieve, who made devastating cases against part 6, which manages to be simultaneously repugnant, unnecessary, ineffective and premature.
Part 6 is repugnant because it violates the principle of the separation of the powers. It is unnecessary because the means for effecting most of its ends—public interest immunity and the power of the coroner—already exist to allow the public to be excluded on grounds of national security. It is ineffective because, as the hon. Members for Blackpool, North and Fleetwood and for Hendon and the hon. and learned Member for Beaconsfield have already demonstrated, this system will not bring about closure for the relatives, who will not know the basis on which the decision has been made. From their point of view, the uncertainties will continue. It is premature because it is wrong to decide these issues before we know the full structure of the coronial system that the coroners Bill will set up and before we know the final resolution of the issue over the admissibility of intercept evidence in all forms of procedure.
I accept what the hon. and learned Member for Beaconsfield said—that the origins of these clauses may not have been badly motivated. There is a case—we do not know the details, but we know the outline—for saying that there have been blockages because of how the present system works, but that does not justify where the Government have ended up, because they have ended up with a system that grants extraordinary powers to the Secretaries of State.
I also accept what the hon. and learned Member for Beaconsfield said about coroners being different and about the system being one of investigation rather than an adversarial conflict between two sides in court. That means that the state, in the form of the prosecution service, does not have the power to withdraw a case. Nevertheless, the issue of the relationship between the investigatory arm of the state in general and the Government is raised here.
The hon. Gentleman must be aware that under clause 65 the Government in power would be able to intervene during a case and suspend the jury; indeed, they could suspend the whole investigation, which I would have thought set an extremely dangerous precedent in any circumstances.
It is extraordinarily dangerous. I know of only one other provision that allows the Government to interfere in some way—although this has been disputed—with an investigation in progress. This is the superintendence power of the Attorney-General over the director of the Serious Fraud Office in respect of its investigations, which was notoriously used in the BAE case. That is the only other example that I know of. These issues are up for grabs in the draft Constitutional Renewal Bill. Why the Government are bringing forward yet another example of something that even they admit in that Bill, which proposes reform, to be wrong seems to me quite extraordinary.
The hon. Member for Hendon pointed out that only 2 per cent. of inquests end up before a jury, but that 2 per cent. is the crucial 2 per cent.—the 2 per cent. that consider deaths at the hands of agents of the state. At times in the debate, the Government's response to those of us who are deeply troubled by what they are doing has been to say that worrying about it reveals one to be a paranoid conspiracy theorist or an obsessive. It seems to me that that is not the case at all; it is perfectly reasonable to be worried— [Interruption.] The Minister chunters that no one said that, but when I read the Committee report, I thought that his treatment of Mr. Hogg was of exactly that nature.
It seems to me that we have examples before us that we should all worry about. The hon. Member for Hendon mentioned one of them, and we need to be careful about mentioning matters that are sub judice. It is clear, however, that mistakes are made by agents of the state—perhaps more than mistakes on occasion. There is always a temptation for the state to cover up its own mistakes.
Much has been made of the crucial issue of public confidence. It is important that the public have confidence in the investigative system and public authorities, but more is at stake. The jury and the coronial system are a counterweight—a deterrent—to the temptation to abuse power in the first place. That is why the Government's proposal is fundamentally wrong.
The Government's proposal is breathtaking in removing the jury from the case merely through a certificate of the Secretary of State—that point has been raised only peripherally so far, but is crucial to understanding why the proposal should be resisted. The basis of national security, relations with a foreign power and public interest is enormously broad—in particular, relations with a foreign power and being generally in the public interest seem to leave virtually nothing that could not be used to justify exclusion.
To build on the hon. Gentleman's comments, is there not an important general principle that it is surely offensive, to law and probably to the European convention, to allow an interested party—the Secretary of State—to decide the forum and the means by which that person's liabilities could fall to be determined?
That is a very important point. For example, in a case of a death in custody, if the Secretary of State for Justice, who is responsible for the prison system, were to exercise such powers, he would in effect be a judge in his own cause. We do not need the Human Rights Act to be worried about that; a fundamental principle of the common law is at stake. The Secretary of State is not independent.
The hon. Member for Hendon was right to say that these provisions have nothing inherently to do with terrorism. They include any case of the kind just mentioned. The provision that the simple certificate of the Secretary of State is enough to decide that the jury should no longer sit is almost arrogant in its brutality. On that model of thinking, the Government decide the public interest, and nobody else need apply. If it were a matter of national security, one could understand why that might be the case. However, the provision applies not only to matters of national security but to relations with a foreign state and anything else that might be in the public interest.
As the Government want to resolve the problem—as the hon. and learned Member for Beaconsfield said, it is a serious problem—they need to do so in such a way that the Executive do not just decide the matter for themselves. They should need to apply to an independent court in some way, so that the decision could be challenged and the relatives could appear before the court and say, "No, there ought to be a jury." The Government ought to have to persuade somebody that there is some necessity for such action. The Government's current proposal requires them to persuade nobody. All it requires is the Government to decide for themselves that it would be convenient for them not to have a jury. That is only half the proposal; the other half concerns the special coroner. There is a Government amendment on the subject, but, as other Members have said, it is a fig leaf. It is not sufficient.
It was originally proposed that the coroner should be hand-picked by the Secretary of State. That represents an amazing violation of the separation of powers, and an astonishing violation of constitutional principle. A politician deciding which judicial officer should be responsible for an individual case? I cannot think of a worse violation of principle. It is a rule that would delight Robert Mugabe, and would probably get him into trouble. It is also the most dangerous of dangerous principles, subverting a basic rule of the constitution and a basic principle of the rule of law.
The Government amendment brings the Lord Chief Justice into the picture. It suggests that there should be an approved list of possible special coroners, and that the Lord Chief Justice must agree to any name included in the list. It also allows the Lord Chief Justice a veto when a particular person is chosen, but that is not enough. The right of initiative, throughout the system, still rests with the Secretary of State. Although people can be blackballed by the Lord Chief Justice, only the Executive can propose anyone. That too strikes me as a fundamental violation.
Is there not a third point, which was touched on by Jeremy Corbyn? The Secretary of State can revoke an appointment. As such a revocation would be profoundly damaging to the career prospects and reputation of a specially appointed coroner, it might well concentrate his mind in favour of the Government.
I agree. In fact, those provisions are quite confusing. The special coroner can be removed for misbehaviour—it should be asked in that context who decides what constitutes misbehaviour, and on what grounds—or can be effectively removed through revocation of the certificate. The question then arises whether a new certificate can be produced for the appointment of a new special coroner, thereby removing the first special coroner without having to prove misbehaviour. The scope for abuse seems to me very broad.
If the Government insist on embarking on this route, the least they should do is remove the Secretary of State entirely from the process of choosing the special coroner. That is the intention of amendment No. 119, which suggests that the coroner should be chosen by the Lord Chief Justice rather than the Secretary of State. I oppose all these provisions, but at the very least the Government should concede that principle.
I support amendment No. 1 and hope that it will succeed, along with the subsequent amendments to remove the rest of part 6. If those amendments are not passed, I hope that amendment No. 119 is pressed to a Division. Ultimately, however, these are mere details. On an earlier occasion, I was interested to know whether there was any constitutional principle that this Government would not violate for the sake of their own convenience. I think that in these provisions we have our answer.
Clauses 65, 66, 67 and 69 are simply wrong; they are wrong in terms of the process that produced them, they are wrong in principle, and they will do wrong in practice. They are wrong in process because they came out of nowhere and were smuggled into a counter-terrorism Bill; the Government hoped to smuggle through these very controversial changes under the cover of the other controversies associated with the Bill that are more prominently featured in the media and elsewhere.
The Government have told us all along that they wanted to create a consensus on counter-terrorism, and they went to some lengths to create all sorts of dialogues and discussions, although that did not particularly include the Northern Ireland parties, which I can understand in the prevailing circumstances. However, there was no consultation on the provisions before they appeared in the Bill, and since this matter was last discussed in the House there have, of course, been additions. Clause 66 will now extend some of the provisions on inquests to Northern Ireland, which was not previously the case. That clause 66 has been added to the Bill as an afterthought again shows how ad hoc the provisions are—it landed out of the blue in Committee.
Public consultation is a legal duty in Northern Ireland. I hope that the Minister can clarify whether there was any consultation on this measure. Was there consultation with any of the Northern Ireland parties? Was there consultation with the Assembly? Will there be? Has there been consultation even with the Office of First Minister and Deputy First Minister?
These sensitive proposed changes might give rise to a number of serious implications and complications regarding the devolution of justice and policing. Let me ask a simple question: to whom would the proposed powers be devolved in the event of the devolution of justice and policing—or will the Government insist that they should still reserve the powers to themselves on the grounds of national security and relations with other Governments? If that is the Government's view, it is a serious issue. Northern Ireland Office Ministers have been telling this House how wonderful agreements and consensus have been reached in the Committee of the Northern Ireland Assembly that was looking at issues to do with the devolution of justice and policing, and at the detail of the exact scope of the powers to be devolved and how they might be devolved. Yet the Government have now—wham, bam—thrown in this grenade, when the Prime Minister has personally been involved in talks including the new First Minister and Deputy First Minister to try to resolve some of the difficulties in the devolution of justice and policing.
I hope that the Minister can provide some explanation or clarification, and if there has not been proper consultation or consideration I ask the Government to think about using that as at least one of the grounds on which they might consider withdrawing some or all of the clauses to allow for wider developments and for wider and proper discussions of all these issues later in the context of the coroners Bill. Those discussions would then take place with our knowing about the issues raised for Scotland and Northern Ireland, and we could address all the other fundamental points that Members have been expressing in this debate.
Why this scramble? Why do that rather than await the coroners Bill, which the Prime Minister promised us when he made the statement on the legislative programme only a matter of days ago? If that new process introduced by the Prime Minister is to mean anything, we should properly respect that promised Bill and all eyes and all work should be focused on it, rather than try to piggyback in a grotesque way fundamental issues to do with coroners' courts into a counter-terrorism Bill, when the powers in respect of coroners' courts in the Bill are not restricted or confined to what could be defined as terrorist cases. Other hon. Members have made the point that these powers, which would apply UK-wide, could apply in cases of custodial death, military death or death in circumstances of pursuit or controversy, and in all sorts of health and safety cases where issues of negligence or malice might well arise, or be felt or suspected. Inquests are about affording families and the wider public a sense of truth and at least some basis of understanding. We cannot simply pat victims on the shoulder and then shrug our shoulders when it comes to their need for truth, understanding and a sense of justice, yet that is what we are getting in the Bill.
The breadth of the powers in the clauses is striking. The Secretary of State will be able to remove a jury and a sitting coroner on almost limitless grounds—national security; relations with any other Government, no matter how bad their repute; and the public interest—to be defined at the whim and with the private knowledge of Ministers, but to be undisclosed and unexplained to the public, as ever. In short, the discretion is unlimited and untrammelled. The Secretary of State will have the power to sack juries and coroners if and when he likes. It is the Secretary of State who will have that power, not a judge, who makes a decision after hearing submissions from parties. A politician will control what this special area of the judicial branch of the state is to do. So much for the independence of the judiciary.
It is not just any politician who will have this power, but one who will too often have a conflict of interest, as other hon. Members have said. Juries are required in inquests when there may have been wrongdoing or negligence on the part of the state, yet who will get to decide whether there is to be a jury? Who will get to decide whether to step in and put a stop to a certain coroner and jury if they do not like the way in which an inquest is going? Who will get to decide whether to appoint a select special coroner of their own? The answer is the Secretary of State, and that is a fairly breathtaking reach on the part of any Executive.
As far as I am aware, the vast majority of jury coroners' inquests take place where the death involves the operations of an arm of the state—the military, the police or some other body—so the power is not just one of appointment; it is specifically a power of appointment where the state itself is involved.
The hon. Gentleman reinforces the point that a number of hon. Members have made. The state might have issues to cover up or its own interests or those of its agents to protect, and it is in a position to do so. It is even in a position to protect the agents of another state, no matter how unworthy that other state might be. That is the kind of law that this Parliament is being asked to approve tonight. The Secretary of State will not only be able to sack the sitting district coroner and the jury and take an inquest off them; if he so wishes, he will be able to sack the special coroner and then appoint another one. That is how far the Government have gone on this issue.
I am not sure that I could fully agree with Mr. Grieve that this is just some messy lay-by that the Government have stumbled into. They seem to be going some distance with these proposals; they have worked their way around the board, passed "Go" and collected £200. I find it hard to believe that the Government have got lost here. They have ended up somewhere where they get all the control and hold all the cards when it comes to inquests. How real is the supposed veto that the Lord Chief Justice would have? That is a cosmetic move by the Government, because it would be almost impossible for the Lord Chief Justice to exercise the veto without causing huge controversy and difficulty. In reality, the Secretary of State will get to choose whom he or she wants.
Yet again, we witness the right to a jury being stripped away. The Minister earlier stressed that the non-jury courts in Northern Ireland will no longer be Diplock courts, because they will have a different legislative basis, However, clause 66 means that we will not only have continuity Diplock courts, but Diplock inquests, in which juries will be prohibited on the say-so of the Secretary of State in cases in which they would otherwise be involved. Juries could even be, in effect, sacked.
What message does that send to the families whose loved ones' deaths are the subjects of the inquests? What message does it send out to jurors, who are responsible, law-abiding citizens who are prepared to play their role and do their civic duty on a jury? How would they feel if, for reasons unexplained, they were suddenly sacked and disposed of? It would be a scandal if that were to happen in any case, but we are told that this is a matter of administrative convenience and could be done for diplomatic comfort, for the sake of relations with other countries. It will certainly be for the convenience of those who have something to hide or who want to hide something for others.
If the Secretary of State is going to go so far as to remove the jury and if we have measures to control the business of inquests in terms of secrecy, is it too far fetched to worry that the next step will be to exclude the press and families, or even everyone? That is the dangerous logic of where this is headed, and that is why the Government need to put a halt to it now and leave such matters to the anticipated coroners Bill. It is entirely wrong that we face the prospect of the Secretary of State acting as the puppet master in inquests in which, as my hon. Friend Jeremy Corbyn pointed out, the state may have much to hide. In some cases, the state may have little to hide but will still go to these offensive lengths to hide it. That must not and should not be done.
Inquests must meet certain standards, as Jordan v. UK, Edwards v. UK and other cases that have been taken to Europe have made clear. The first standard is that they should be independent, both institutionally and in practice. How does that standard sit with one side in the proceedings having the power to sack the jury and choose the coroner; to sack that coroner and choose another one, and to control what happens with secrecy?
Inquests must also be capable of leading to a determination of responsibility and the punishment of those responsible, yet in Northern Ireland there is no possibility of bringing a verdict of unlawful killing. Another standard is that inquests must be prompt, yet there are cases in Northern Ireland in which inquests into murders in the 1980s—there is even one in the 1970s—still have not happened. We still have 20 inquests outstanding involving 30 deaths from the troubles.
Inquests are meant to allow for sufficient public scrutiny to ensure accountability. With the jury sacked and, I have no doubt, with other powers and restrictions to come, that is clearly on the wane. Of course, inquests must allow the next of kin to participate, yet that too is under threat from the direction of travel that the Government are taking. Hon. Members should be in no doubt that these powers will be not only used, but abused.
Let me give an example of a case in Northern Ireland. Roseanne Mallon, a 76-year-old woman, was shot dead by loyalists in 1994. Her sister was shot, too, and she took a civil action against the Ministry of Defence. In the context of that action, by some miracle, she discovered tapes held by the Army that revealed that her house was under observation by members of the Special Air Service—the SAS. They saw the loyalists arrive at the house and saw what was happening. In fairness, they radioed back to Mahon barracks to say what they had seen and to ask for instructions. Mahon barracks told them to do nothing and that was that.
That information came up during a civil action, but in context of the inquest the coroner asked for a copy of the tape from the MOD, which flatly refused to provide it, God alone knows for what reason. Maybe it was for reasons of national security or the public interest, but whatever the MOD's grounds for holding that clear evidence, which is relevant to an inquest, the Government will be able to use those same grounds to sack a jury and to dispose of the inquest, too. So that inquest still has not happened. Neither have inquests in the shoot-to-kill cases from the early '80s, nor those in the cases from the late '90s of Raymond McCord and Sean Brown. Such a situation leaves families wondering whether inquests are being stalled until one generation of the family dies off. It leaves them feeling that the state feels that time is on its side and that it can play it as long as it takes—and, of course, as the families say, the new measures are then brought forward.
In Northern Ireland, there is a consultative group looking at issues of the past, appointed by the British Government and led by Lord Eames and Denis Bradley. The Bill's provisions leave a lot of people with the sense that some of the unresolved cases that have not been the subject of inquests will be crudely disposed of using the new powers. People such as me will not be in a position to disarm people of that suspicion unless the Government move to halt the measure now. Families are left without loved ones, suffocating with frustration that they cannot get truth or understanding about their situation. Rather than meeting their situation with truth and justice, the Government are creating more obstruction and more obfuscation.
My hon. Friend Mr. Dismore whether there were such powers in other parts of the world. My hon. Friend the Member for Hendon rightly resisted going on a comparative world tour of such matters. I draw the attention of the House to a fact about the clauses that we are discussing tonight, which concern not only Northern Ireland but the whole of the UK—or certainly England and Wales, at least. They are uncannily similar to a legislative provision made in another Parliament, which allowed the Minister to provide
"for the duties of a coroner and a coroner's jury, or of either of them, as respects any inquest prohibited by the order being performed by such officer or court as may be determined by the order".
The order was entirely in the control of the Minister, and that provision was in the notorious Civil Authorities (Special Powers) Act (Northern Ireland) 1922.
This year, we are celebrating the 40th anniversary of the civil rights movement in Northern Ireland. Its work and cause were supported by many Members of this House, and one of its aims—and eventual successes—was to overturn that obnoxious legislation. We need to remember how notorious the 1922 Act was. South Africa's Minister for Justice in the apartheid years, Mr. Vorster, put through his own pernicious legislation, but said that he would trade it all for one clause of the 1922 Act.
Now we find that, with this Bill, this Government are digitally remastering one of the most pernicious and obnoxious provisions of the Civil Authorities (Special Powers) Act (Northern Ireland) 1922. That is what we have come to, and that is what is happening with the provisions in the clauses under consideration. They are almost uncanny in their resemblance to the 1922 Act when it comes to their scope and their effect.
If nothing else, what should give people cause for concern is that the measures will not be applied only to Northern Ireland. Indeed, Northern Ireland is in some ways protected from some of them, as the special coroners will not operate there. As I understand it, that is because it is deemed that all Northern Ireland's coroners are already kosher, having been security-vetted and all the rest of it. However, the standard set by the 1922 Act is to be the law for England, Wales and Northern Ireland in the future.
The House needs to think twice about these provisions, and I beg the Government to think again about them. Ministers may claim that they apply in only a small number of cases, but it has been stressed already that those cases will be very important and controversial. Moreover, if the number of cases is likely to be small, and if the powers are to be used only rarely and as such are not worth worrying about, why are we to have 15 special coroners? Why are the Government going to such lengths, without consultation and when other legislation is going to be available soon? If they are trying to clarify, reform and deal with problems with the coroner's system in an effective and positive way, appropriate legislation is already coming.
The Government should withdraw these provisions from the Bill. If they do not do so, Parliament should say no to them.
I find myself in complete agreement with the points made in the series of powerful speeches about this part of the Bill. Indeed, it is difficult to see how any objective observer could fail to be in complete agreement with those points.
I support the amendments put forward by Opposition Front-Bench Members, and others. I hope to vote for them later this evening, but I do not intend to engage on those issues in what I hope will be a brief contribution to this debate. Indeed, so comprehensive and compelling have been the arguments so far put forward that I am certain that I would be unable to add to or enhance them in any way. Instead, I want to make a particular point that relates to the proposed admissibility of intercept evidence at coroners' inquests from which the jury has been excluded—as they would be if the provisions of the Bill as it stands reach the statute book.
The Home Secretary has recently appointed me to the advisory group of Privy Councillors that is concerned with the implementation of the Chilcot committee's recommendations on the admissibility of intercept evidence in criminal trials. The make-up of the committee is in fact identical to that of the original Chilcot committee, except that I have been appointed in place of my right hon. and noble Friend Lord Hurd of Westwell. The only other member of the committee who is a Member of this House is Mr. Beith, and I am delighted to see him in his place this evening.
Obviously, the views that I express this evening are mine and mine alone. I do not purport to speak on behalf of the committee in any way. It is, however, fair to say that the committee as a whole has been impressed with the way in which the officials who have been charged with the task of implementing the original recommendations, which were of course accepted by the Government, have set about their task. That task is not an easy one. The Chilcot committee report set out nine requirements that must be met to ensure that the United Kingdom's strategic intelligence capability is safeguarded, and that the ability of intelligence and law enforcement agencies to protect the public is not harmed if intercept evidence is made admissible.
I do not intend to go through all nine requirements this evening, but they include provisions relating to the retention of raw intercepted material and to the examination and transcription and note taking of intercepted material. In all, they add up to a comprehensive series of safeguards designed to minimise and, if possible, eliminate any risk to national security arising from the admissibility of intercept evidence. It therefore came as a surprise, to me at least, to see the provisions of the Bill that allow for the admissibility of intercept evidence in coroners' inquests without a jury, and to see that there was no reference to those safeguards, and indeed no hint of their necessity. Of course, I appreciate that the disclosure envisaged in the Bill would be limited, but that does not dispose of some of the questions that could arise. For example, the way in which intercept material is prepared—an issue to which I have already referred—is, on the face of it, relevant whether we are talking about intercept disclosed in the circumstances envisaged under the Bill, or intercept disclosure in criminal proceedings.
Other questions arise, too. What if the verdict of an inquest that is based on intercept evidence, among other things, leads to a prosecution, or is challenged through judicial review? It may well be that the Government have thought through all the implications of the change, and have convincing answers to all those questions. I hope that they do, in which case I look forward to hearing them from the Minister at the end of the debate. Should that not prove to be the case, a great deal of further thought would be required before the provisions find their way on to the statute book.
I knew I would get it wrong. My right hon. Friend was the Chair of the Defence Committee when we produced the report, "Duty of Care". That is an interesting phrase; it refers to our duty of care to people—the families—who have an interest in an inquest and go through the process. I am very interested in the subject.
In some senses, the part of the Bill that we are discussing worries me more than the issue of pre-charge detention. It is interesting that the media have not really done much with it, and that there has not been much informed debate among the public about the real effects of the provision that we are discussing.
It was clear both during our inquiry and subsequently that the inquest process has huge potential to allow people to understand not only what has happened, but why. The provision will deny that process to people who would be subject to it. We saw the genuine pain and suffering of families who wanted that ability to understand—they did not necessarily want revenge or retribution—but to whom the process was denied, because it was not properly run and not properly available to them.
A coroners Bill is due to be introduced. The Defence Committee is waiting for it, and had a discussion today. I do not speak on behalf of the Committee, but as everyone will know, we wish to hold an inquiry on how the coroners process is run, with regard to cases concerning the death of military personnel and attendant effects relating to people associated with the military. The provision that we are discussing seems inherently unsound, in a way that many hon. Members have already described. Certainly, its timing is wrong. When that Bill comes along, the provision in the Counter-Terrorism Bill and this discussion will not inform it. They will prejudice it if the Bill proceeds and the Government will have to unscramble it and redo it.
The dangers of the provision have been described by others. As Mark Durkan said, the problem is not what such provisions do now, but what happens later. I suppose the Secretary of State responsible will be the Justice Secretary. That might be an honourable person at present, but individuals will change. We must be careful what we do. I signed the amendment and I shall prosecute that if necessary, but I would prefer not to do so.
Everyone has explained that this is the wrong time to legislate in haste in a Bill that, we are told, was drawn up in the cold light of day as a reserve power for the future. The provision is wrong, it is dangerous, and I hope that the Minister will withdraw it—if not here, then elsewhere later.
In a civilised society, every one of us, and the society itself, has an interest in the causes of the death of every one of its members. That point has been well rehearsed in the debate. The Bill is extraordinary, but I say to Mark Durkan that I am not surprised by anything that the Government bring forward from the Home Office or any of their security agencies to improve the lot of the British citizen.
Who could imagine that a Bill about terrorism should suddenly incorporate an amendment of a Coroners Act to bring about a situation that repudiates the whole tradition of our open justice and our approach to the reinforcement of the citizen's right to know what happened in the circumstances of an unusual or exceptional death? That is why we support coroners courts. That is why they have been largely open and accessible to us. We spoke about closure and satisfaction of the individual families concerned, but we as a society have a wider interest. We want to know that the cause of death is explicable and whether it was criminal in its intent.
Suddenly a Bill relating to terrorism contains an extraordinary and very nasty series of proposals. It states:
"The Secretary of State may certify in relation to an inquest that, in the opinion of the Secretary of state, the inquest will involve the consideration of material that should not be made public", and then it lists the circumstances:
"in the interests of national security, in the interests of the relationship between the United Kingdom and another country, or"— the usual catch-all that the Government use—
"otherwise in the public interest."
Defining the public interest is a matter not only for Government, but for the Chamber. The measure strikes at the basis of our principles. It is outrageous that it has been incorporated in the Bill.
The provision can be retrospective. The clause goes on:
"Where a certificate has effect in relation to an inquest, the inquest must be held or (as the case may be) continued without a jury" and so on. It is an assertion of the nervousness of the state. Let us be clear about that. Who in a democratic society would seek such far-reaching power to obscure something that we take as a routine part of our democratic exchanges? Yet there has been no justification. What do the Government mean by
"in the interests of the relationship between the United Kingdom and another country, or otherwise in the public interest"?
It is everything, is it not? The Government determine it. On the most basic and preliminary examination, this is unacceptable.
I have heard all the calls for national security over the nearly 30 years that I have been in the House. The Conservative Government used to bait the Labour party because it opposed internment and the Northern Ireland terrorism Acts. This Government now try to bait the Conservative party on the basis that we are soft on terrorism. It is nonsense. This country is united in the belief that we want peaceful, lawful existence, and that the purposes of the state are to ensure that each and every one of us is secure. To stick in the middle of that the view that something nasty might be going on in a coroner's court hardly brings joy to the hearts of a free people when they listen to a Government bring forward what we all know are important measures in other areas of the Bill. I hope very much that the House—no one else has spoken in favour of it other than the Minister himself—
The right hon. Gentleman has probably been listening to the Prime Minister and will come back with the answer.
The House must reject these provisions. This is not a matter for the House of Lords. This is quite clearly a matter for us, and we should tell the Government that this should not be included in the Bill and should be withdrawn.
I shall be brief to enable the Minister to reply and other Members to speak. I want the Minister to be able to explain to the House exactly why we are introducing something as draconian as clause 65 into this Bill. I am glad that we have had a good debate on this issue this evening, because this part of the Bill is as important and as dangerous to liberties in this country as the 42 days that we will be debating tomorrow. Like that issue, it crosses the important Rubicon of the separation of political and judicial powers. If we are to give the Secretary of State the power to appoint a coroner, the power to prevent a jury and the power to intervene in a case as it goes on, we can no longer claim that there is a complete separation of political and judicial authority in this country. Additionally, since, as far as I understand it, the majority, if not all, of jury cases that are heard in a coroner's court involve a state party—be it the police, the Army or some other organ of the state—in connection with a death, the Minister, whoever he is, will have a clear conflict of interest, as many hon. Members have pointed out.
Proposed new section 8A(1) (b), in clause 65 (2), contains the words
"in the interests of the relationship between the United Kingdom and another country".
That particularly disturbs me. If we are to be proud of and believe in our judicial system and traditions, why are we saying that our relationships with another jurisdiction are an overriding interest? Look at the odium that Tony Blair incurred when he intervened to prevent the investigation by the Serious Fraud Office into the involvement of BAE Systems with Saudi Arabia. He said in his defence that the overriding interest was one of national security and the relationship with the kingdom of Saudi Arabia, whose record on human rights is slightly questionable in a number of areas. I suspect that the overriding interest would relate to many other jurisdictions as well where we have close relationships, arms sales or whatever else. It is simply wrong and dangerous for us to do this. It will not do our standing any good around the world and it is no good for our judicial system or our democracy.
I also draw attention to the briefing that has been sent out by Inquest. That organisation has its offices in my constituency and it has campaigned with great difficulty and tenacity and very bravely on investigating the causes of deaths in custody. I pay tribute to that organisation, and I know the people who work there very well.
I know families where somebody has died in custody, and the family goes through the pain of calling for an inquiry, a coroner's court inquest and so on. Someone who dies in custody may be under suspicion, which may be why they are in custody in the first place. Such people often do not have wonderful connections with brilliant barristers and lawyers, and they are often victims who find themselves in police custody and tragically die for a variety of reasons. In such circumstances, it is not in the interests of the police to ensure that there is an open investigation, and it is not necessarily in the interests of any other agency of the state. The only avenue that is available for families of the deceased to seek justice is through the legal system. If we give the Secretary of State the power to intervene to prevent a jury trial in a coroner's court, that avenue will not be open to such families.
I have two more points. First, deaths in custody raise important issues of state power and accountability. In a free and democratic society, deaths in state custody should be subject to particularly close public scrutiny. For that reason, it is imperative that the inquest system is open and transparent so that justice can be seen to be done and public confidence in the state bodies is upheld.
Secondly, I intervened on my hon. Friend Mr. Dismore during his excellent contribution—I will take great pleasure in supporting his amendment—on international comparisons. I do not have the information that he thought that I had about what happens in every other jurisdiction, but I want to discuss article 2 of the European convention on human rights, which other hon. Members have also mentioned. Article 2 requires the Government to implement a proper procedure for ensuring the accountability of agents of the state to maintain public confidence and to allay any concern arising from the use of lethal force. It places a positive duty on the state to investigate a death in custody with an inquiry that is conducted on the state's own initiative, that is independent both institutionally and in practice, that is capable of leading to a determination of responsibility and the punishment of those responsible, that is prompt, that allows for sufficient public scrutiny and that enables the next of kin to participate.
When the Minister replies, I hope that he will explain the motives behind the inclusion of clause 65 and its related provisions in the Bill. We are taking a very dangerous step: we are giving too much unaccountable power to Ministers to protect the state's agents, when the public rely on us, as Members of Parliament, to defend their interests, their procedures and their access to justice.
I am sorry to prevent others from contributing, but I am mindful of the time. [ Interruption. ] The programme motion was agreed by Government and Opposition Front Benchers, so take it up with them and get real.
Some germane and relevant issues have been raised. There have been some interesting little treatises, including the previous contribution, by my hon. Friend Jeremy Corbyn, but they do not bear much relation to the substance of the Bill. Nobody, apart from my hon. Friend Mrs. Humble, has answered the question of what to do about families who are currently stuck in limbo and cannot achieve resolution and closure at an inquest into the death of a loved one because of the blockage around the use of sensitive material and, potentially, intercept evidence—I will address the point raised by Mr. Howard in a moment. If this system, or a similar system, does not prevail, what will happen to families involved in such rare cases? The answer is that they will stay in limbo; the answer is that they will stay in abeyance and nothing will be done for them.
I understand what the Minister might be trying to do, but how has he met the tests that the Chilcot committee set, such as the test that intelligence and law enforcement agencies should not be required to retain, transcribe and otherwise process material to such an extent that it would interfere with their ability to gather intelligence? That is one of the things that the implementation group is now having to address.
I accept that, and I applaud the implementation team on its work, as I do the right hon. Gentleman and his colleagues who were on the original Chilcot committee. It relates to the point made by the right hon. and learned Member for Folkestone and Hythe, too. These are absolutely and quintessentially different circumstances. The right hon. Gentleman will know, because he has lived and breathed it for the best part of a year or more, that the whole edifice and architecture of Chilcot, and how to move to utilise intercept as evidence in courts, is precisely a result of the two substantive sides—precisely because of disclosure and all the other elements that surround it. They are not germane to an individual coroner sitting in such circumstances.
The right hon. Gentleman's constituency is very close to Scotland—I hope his town stays this side of the border; I have heard the rumours—and he will know that a High Court judge is quite properly on the appropriate list in Scotland to get such sensitive material, including intercept, as evidence during fatal accident inquiries. That is why FAIs do not feature in the provisions. My right hon. Friend Mr. Ingram asked a question about that, and he will know that Lord Cullen of Whitekirk was recently appointed—in March, I think—to carry out a full review of the law and the operation of FAIs in Scotland. He will consider issues relating to article 2 and the disclosure of sensitive materials during the course of that review, which, I am told, is to report by next March.
I have no wish to add to my right hon. Friend's burden of explaining some of the contradictions in the concessions that have been made to get the Bill through, but because I agree with Mr. Beith, let me ask the Minister this simple question. The Bill establishes a principle of extending the use of intercept evidence in a coroner's court. Why is it necessary to do so in this Bill, here and now, when our own inquiry is under way and will report in the not too distant future, and when we are awaiting the Bill on the coroners process? Why is it not possible here to wait, but in Scotland—another part of the United Kingdom—it is possible, on a matter of national security, to wait until its inquiry has resulted, and when, moreover, responsibility for national security on such an issue will be handed over from this House to the First Minister in Scotland?
That is because, as my right hon. Friend knows, the High Court judge rather than the coroner sits in FAIs and already has the capability under Scottish law to receive and use that information. I freely concede the point, although not in respect of the constitutional drivel from David Howarth, that two or three things are going on that of course should, more usefully, be aligned. In the wake of the Jordan case and what we require on article 2—yes, again, for the families and nobody else—we cannot delay one particular case any longer. There may well be others, as I have suggested. It would simply be unfair and unjust to those family members and on that case.
I alluded to this point in Committee and I am happy to repeat it: I shall do all that I can to ensure—I do not know what the mechanism is; we are still exploring it—that these elements are duly sunsetted and fed into the coroners reform Bill. That is where they properly belong, and they can be properly fed into all the other aspects of a full and deep review of the coronial system in the country. That is right. The balance for us to strike is to comply now with article 2 and the essence of the Jordan case and to move on further the individual case and, potentially, other individual cases, because they have been held in abeyance for so long, rather than to wait not only for the Chilcot implementation group and Lord Cullen to report, but for what may well be—I do not know; I am not a futurologist—the real rather than the apparent existence of a coroners reform Bill, from the pre-legislative form in the Queen's Speech to actuality.
May I just pick up on that point? The Minister's argument is that the provision is vital for a number of cases in which people need justice, but how does he respond to the point that has been made from all parts of the House that the system is so inherently flawed that it will not deliver the results that the Government claim for it? This is a matter of self-interest, if I may say so to the Minister. The Government should pause and withdraw these measures, because they will not fulfil the expectations that they themselves have placed on them, quiet apart from the fact that they are unfair.
I do not accept that they are flawed, and I certainly do not accept that they are Kafkaesque, going back to the 1920s or anything else. What we have replicated for special coroners is the provision that pertains to the judiciary everywhere else in this land. It is arrant nonsense to suggest that a special coroner suitably appointed by the Secretary of State and the Lord Chief Justice is somehow a stooge while all the other judges all the way up to the very top are not stooges.
As the Minister is aware, I share the concerns about moving to the use of intercept evidence before the Chilcot committee has undertaken the study that was not only recommended by the Government but fully accepted by the Prime Minister in this Chamber when he introduced the report. Interestingly, the Minister said that he is considering the possibility of a sunset clause. I presume that the mechanism for that would be the tabling of some amendments at the appropriate stage in the other place. Could he confirm that that is in the Government's thinking?
That is entirely in the Government's thinking, not least because the only unfortunate thing in the whole process is the lack of alignment between fairly significant pieces of endeavour—the Chilcot implementation group, Lord Cullen's further inquiry into what pertains in Scotland, and the introduction of the coroners reform Bill. In the end, all these provisions sit more suitably in a coroners reform Bill, having been suitably informed by the Cullen review and what Chilcot says about implementation. It is arrant nonsense to suggest that this is about the state taking over people's article 2 rights and in some sinister fashion ensuring that anything remotely attached to the state relating to the death of an individual will now be hush-hush, covered up and secret. We have said very clearly in the substance of the Bill that the only secret bit of any proceedings, even with a specially appointed coroner, will be for sensitive information, intercept evidence and whatever else. The rest of the inquest, albeit just with the special coroner, is public.
The notion that this is about hurrying and scurrying into a little hole so that no one knows anything, not least the family, is simply is not the case, as Mr. Grieve knows. He rightly starts from the premise, as do most fair-minded individuals in this House, of whom there are plenty, that there is an issue to do with particular cases that we need to resolve. We think that this architecture addresses that, and that none of the amendments does.
We have moved on this, as we have on all the assorted groups of amendments that we have dealt with tonight. We have taken to heart what the Committee said about this being a singular activity of the Secretary of State, and we have introduced not only concurrence but the veto of the Lord Chief Justice and the Secretary of State working together. We have even amended and restricted revocation—taking an individual special coroner out of a process—to incapacity and misbehaviour. That is misbehaviour in the perfectly rational and legally precedented process already on the statute book, which extends to falling asleep, being offensive and all the other things that already govern the conduct of judges in such procedures.
The hon. and learned Gentleman will know far more about that than I do. People are not going to say, "Oh, we will vote for the licensing of this particular special coroner because he is making a decision counter to what the state wants." That was the implication of the comments of some individuals, and again I say that it is absolute nonsense. Complaints about judicial decisions are subject to appeal to a higher court in the normal fashion. What we are describing is the independent, finder-of-fact role that the coroner has, and getting to a stage—in what are, in reality, narrowly defined cases—where closure can be achieved for the families.
With respect, no.
I know that most people are entirely genuine in sharing a desire to see the resolution of those cases. I hope that the House takes what I am saying seriously; in the end the process has to align with the work of the implementation group on intercept evidence, and with what Lord Cullen is saying in Scotland. The perfect place for that will be, if and when it comes to fruition, the coroners reform Bill. However, there is an urgent need in some cases, with regard to article 2 and the Jordan case, to go along these lines.
In other aspects, as in most circumstances, other elements of what is currently on the statute book will prevail. The Regulation of Investigatory Powers Act 2000 will prevail, where appropriate, as will other provisions in a broader context. We need to get to a stage where the next of kin can get closure, and we need to ensure that we move to get closure for individuals now, rather than waiting, which would be the most convenient thing for the Government to do.
With those reassurances, and leaving time for the principal mover of the amendments, which is only a courtesy, something that Mr. Bellingham will not know much about—[Hon. Members: "Give way!"]—I ask the House to resist the amendments, except for the Government ones, and to give closure in these special cases to the families for whom everyone purports to speak.
We have had an interesting debate, and there has been unanimity across the House—apart from my right hon. Friend the Minister—that the proposals should not stand. The fact remains that the proposals create a system of secret inquests. No matter how much my right hon. Friend blusters about it, that is the case. He asked the question, "What about families?" We are aware of only one family affected. It is a serious matter for that family, as I mentioned earlier. My right hon. Friend talks about closure, but the process in question will not give them closure. It might give them partial closure and some of the answers, but it will not give them the full story. We have not heard whether the Government have considered the public interest immunity system in that case. We do not know whether the family in question have asked for that process to be implemented. Has it been discussed with them, and would they accept it if it was offered to them?
My right hon. Friend says that none of us is really interested in the concerns of the families. I can tell him that in my professional life I have dealt with many bereaved families—cases where people were killed in the most appalling circumstances at work or on the roads—and I know what makes families in those circumstances tick. Inquests deal with bereaved families day in, day out, and those involved are opposed to the proposals. If I were to ask the families concerned whether they wanted to wait a little longer and have a much better chance of getting full closure, or whether they wanted the process to go forward now and not know what actually happened, I know which alternative they would accept.
The inquest process is not just about the families. They are an important part of the process, but there is also a public accountability function. There is a public interest function in establishing the truth, and the provisions will prevent that from happening. We are not looking for a counsel of perfection in an inquest. Inquest verdicts are not brought in on the basis of "beyond all reasonable doubt", considering every factor involved.
The question of why we are doing this now arises, when many other things are yet to be decided. A coroners Bill is coming up. Why are we tacking the provision on to a terrorism Bill when most of the cases we are talking about will not involve terrorism at all? We are told about a sunset clause. Can we have a sunset clause just for this case, covering a few weeks, then kill the Bill off after that? We still have not heard which Secretary of State will be involved, and the separation of powers argument has been advanced by several Members. My right hon. Friend accepts that the provision would be better in the coroners Bill—let us go down that route. The fact remains that the process in the Bill forms no real part of our system and it ought not to be allowed to survive.
Question put, That the amendment be made:—
The House proceeded to a Division.
It seems that the Tellers are rather late in coming before me, so I instruct the Serjeant at Arms to investigate the delay in both Lobbies.
Question accordingly negatived.
It being after Ten o'clock, Mr. Speaker then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour , pursuant to Order [this day] .