Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.Donate to our crowdfunder
'(1) The Secretary of State may apply to the High Court for a certificate ordering that an inquest be held in camera.
(2) The Secretary of State may only apply for a certificate if he is satisfied that it would be necessary to prevent material or information being disclosed whose disclosure would be seriously detrimental to national security.
(3) The court may only grant the certificate if it is satisfied—
(a) that granting the certificate is necessary to prevent material or information being disclosed whose disclosure would be seriously detrimental to national security; and
(b) that other measures short of granting a certificate would not be adequate to prevent such disclosure.
(4) Where the court grants a certificate, the following provisions apply—
(a) the Lord Chief Justice may appoint a judge of the High Court to act as coroner for the case, and a judge so appointed shall have the same functions and powers in relation to the body and the investigation as would be the case if he or she were the senior coroner in whose area the body was situated;
(b) the jury may be subject to checking in accordance with the Attorney General's Guidelines on Jury Checks.
(5) The Attorney General must, on the coming of this section into force, consider revising the Guidelines on Jury Checks to meet the particular requirements of inquests in camera.
(6) If a jury has already been summoned when a certificate is issued, that jury must be discharged and a new jury summoned.
(7) The powers of coroners to protect the identity of witnesses shall apply to inquests in camera to the same extent that they apply to other inquests.
(8) The certificate may require that part of the inquest be held in camera and part in public, and the court must only issue a certificate requiring the whole of an inquest to be held in camera if the disclosure of material or information whose disclosure would be seriously detrimental to national security cannot be prevented in any other way.
(9) Where a certificate has been issued under this section, the coroner or judge may at any time, taking into account any other measures that the coroner or judge may have taken, including measures to protect the identity of witnesses, admit to the proceedings any interested person he may specify, provided that he is satisfied that doing so will not lead to material or information being disclosed whose disclosure would be seriously detrimental to national security.
(10) Where a decision made by a judge conducting an investigation by virtue of this section gives rise to an appeal under section 30, and the Lord Chief Justice has exercised the power in subsection (4)(a), that section has effect as if references in it to the Chief Coroner were references to a judge of the Court of Appeal nominated by the Lord Chief Justice.
(11) A reference in this section or section [Discontinuance or variance of certificate for inquest in camera] to conducting an investigation, in the case of an investigation that has already begun, is to be read as a reference to continuing to conduct it.'.— (David Howarth.)
Brought up, and read the First time.
Copy and paste this code on your website
With this it will be convenient to discuss the following:
New clause 15— Discontinuation or variance of certificate for inquest in camera—
'(1) A certificate under section [Inquests in camera] has effect in relation to an investigation until it is discontinued or varied.
(2) A certification may (but need not) be discontinued or varied by the Lord Chief Justice at any time on application from the Secretary of State, the investigating coroner or judge of the High Court, or any interested person.
(3) Where a certificate has been discontinued or varied, and a jury has been summoned, the inquest is to continue with the same jury.'.
New clause 16— Intercept evidence—
'(1) Section 18 of the Regulation of Investigatory Powers Act 2000 (c. 23) (exclusion of matter from legal proceedings: exceptions) is amended as follows.
(2) In subsection (7), after paragraph (c) insert—
"(d) a disclosure to an inquest for which a relevant certificate exists under section [Inquests in camera], and where the coroner or judge is satisfied that the exceptional circumstances of the case make the disclosure essential to enable the matters that are required to be ascertained by the investigation to be ascertained.".'.
Amendment 2, page 6, line 2, leave out clause 11.
Government amendment 94.
Amendments (a) to (c), (e) to (g), (d), (i) and (h) thereto.
Amendment 4, clause 11, page 6, line 4, after 'if', insert
'the matter has been referred to the Lord Chief Justice and he or she is'.
Amendment 47, page 6, line 4, leave out 'of the opinion' and insert
'he is satisfied beyond a reasonable doubt'.
Amendment 5, page 6, line 6, leave out 'any of the reasons' and insert 'the reason'.
Amendment 6, page 6, line 9, leave out 'reasons are' and insert 'reason is'.
Amendment 48, page 6, line 12, leave out sub-paragraph (ii).
Amendment 7, page 6, leave out lines 12 to 16.
Amendment 49, page 6, line 14, after 'detecting', insert 'serious'.
Amendment 52, page 6, line 16, leave out paragraph (c).
Government amendment 95.
Amendment 50, page 6, leave out lines 31 to 34 and insert
'until it has been confirmed by a judge of the High Court.'.
Government amendment 96.
Amendment 51, page 6, line 34, at end insert—
'(5A) On an application by the Secretary of State for the confirmation of a certification under subsections (1) and (2), the court may confirm the certification only if it is satisfied beyond a reasonable doubt that—
(a) the investigation will concern or involve a matter that should not be made public for any of the reasons that are set out in subsection (2), and
(b) that no other measures would be adequate to prevent the matters being made public.'.
Government amendment 97.
Amendments (b), (a), (c) and (d) thereto.
Government amendments 98, 99 and 3.
Amendment 30, page 7, line 18, leave out clause 13.
Government amendments 101, 102, 109 and 110.
Amendment 16, page 23, line 26, leave out clause 38.
Government amendment 111.
Amendment 29, clause 38, page 23, line 28, leave out 'and in sections 11 and 12'.
Government amendments 112 and 113.
Amendment 17, page 139, line 1, leave out schedule 9.
Amendment 28, page 141, line 18, leave out from beginning to end of line 23 on page 142.
Government amendment 120.
Amendments (a) to (e) thereto.
Government amendments 127 and 128.
We now turn, at last, to the issue of inquests without a jury. I use that term advisedly, because the central issue is not whether proceedings on inquests should sometimes have to be held in private—in some national security cases, there are certainly times when that should happen—but whether when somebody has died at the hands of the state, a jury that has been summoned should, at the behest of the Secretary of State or through some other procedure, afterwards be dismissed and removed from the case, so that the case in the inquest continues without a jury.
Originally in this Bill—of course, there were proposals in a previous Bill—the Government proposed a procedure whereby the Secretary of State would simply certify that the inquest would involve a risk of releasing information that might harm national security, relations with a foreign power, the prevention of crime or the protection of witnesses, or that might involve "other real harm" to the public interest. That certificate would mean that the coroner would be instantly removed from the case and replaced by a High Court judge, and that any jury that had been summoned would be removed, too. The case would continue without a jury and, presumably, in private, excluding everybody from the proceedings, including the family of the deceased.
There were protests from all sides about that proposal. It was wrong, first of all, because the Secretary of State decided everything himself on the certificate. Secondly, the grounds on which the Secretary of State could issue a certificate were far too wide. The real harm clause, for example, was very broad and it was confusing, because the Bill contains the exact same phrase later on which the Government admitted meant something different. Protecting witnesses sounded plausible as a reason for excluding the public, at least, from the full inquest, until in Committee the Government admitted under pressure from amendments that proposed giving a power to coroners to give anonymity to witnesses that coroners already have extensive powers to protect the identity of witnesses by the equivalent of anonymity orders and to impose all the special measures that are open to criminal courts when it comes to protecting identity and protecting witnesses. The broad grounds therefore made no sense.
Thirdly, the removal of the jury raises a fundamental point. Juries do not come into inquests in many cases, but when they do, it is because the case is a crucial one—when someone has died at the hands of the police or in custody, and where there are serious questions about the responsibility of the state for the death. It is unquestionably a crucial part of public confidence in the state, the police and the Prison Service that there are ordinary people in the jury to make the judgments in such cases.
Does the hon. Gentleman not agree that a crucial part of this issue is that juries can be a flipping nuisance to the Government in such circumstances? Does he agree that the real fear is that the Government are trying to make the change because they do not like to be embarrassed by 12 good men and women and true?
I am afraid that the conclusion that I have come to is that that is right. I will come back to that point later, when I address how the Government have changed their proposals, because the changes have not dealt with that precise point.
The fourth reason why the Government's original proposals were objectionable was that the family were excluded. A situation in which the family hear only the bare verdict and no explanation of what has gone on, after having been removed from the proceedings, is completely unsatisfactory. The family will not feel that any explanation of what happened was available to them, and are sure to have very little confidence in what happened.
The Government have changed their proposals to some extent. The Secretary of State will still decide on the matter of the certificate. When the certificate is issued, it will still have the effect of removing the coroner—it is interesting to ask why Governments do not trust coroners, to come back to the point made by Mr. Gummer—but it will replace the coroner with the supposedly more trustworthy High Court judge. The Government have made a concession, which means that at that point, instead of the jury being removed automatically, the High Court judge will consider whether to remove the jury. That is the first change.
Secondly, the grounds on which a certificate can be issued by a Secretary of State have changed slightly. The catch-all
"real harm to the public interest" provision has been scrapped, but the other four grounds are still there.
Has my hon. Friend received any satisfactory explanation from the Lord Chancellor, or indeed anyone else, on why it is necessary to include the second ground—
"the relationship between the United Kingdom and another country"— outwith the grounds of "national security" and "preventing or detecting crime"? Why should we be in the extraordinary situation of including a novel procedure to protect the agents of another country from, it appears, embarrassment?
My hon. Friend is right; the second ground, as a free-standing ground, cannot have anything to do with national security, because that is covered by the first ground. The second ground can only be about embarrassment.
May I suggest to the hon. Gentleman the kind of embarrassment that the Government have in mind? A victim of extraordinary rendition being killed during that process, or somebody who is questioned in Guantanamo Bay dying under interrogation—that is what the Government are worried about.
The hon. Gentleman is probably right. One can always tell quite a lot about legislation by the templates that are used, and where they are from.
I take the view, on reading the clause, that the application must be intended to be much wider than national security, because all the examples that we have just heard might conceivably be caught by national security. It seems to me that embarrassment, in this context, means exactly that. I find it troubling that the Government should consider the embarrassment of their relations with another country, when that falls short of being a matter of national security, to come into the criteria at all.
That is correct. It is of course possible that what is envisaged is not so much the rather more shameful sort of case to which Mr. Hogg referred, but the still embarrassing matter of death through friendly fire.
Is not the truth that there is a quid pro quo between the United Kingdom and some of its friends, particularly—but not exclusively—the United States? Our Intelligence Services Act 1994 makes lawful in English law any activities that our agents undertake abroad, and vice versa. Basically, in United States law, and in some other countries, it would be possible for someone to bump off a person in the United Kingdom, but those countries do not want to go there because we have reciprocal arrangements. That is the truth; it is the scandalous UK Intelligence Services Act 1994, and comparable Acts in other countries, that are covered by the provision about not causing embarrassment to other states.
The hon. Gentleman gets to the heart of the reality of the special relationship. There are later amendments on foreign conspiracies, and he will be able to raise that point directly in debate on them.
I am grateful to the hon. Gentleman for giving way; he is being very generous. I say this as a citizen of Canada, one of our closest allies: the passage to which he refers could relate not to embarrassment—I quite take his point on that—but to the national security of another country.
The central point is that national security is taken as a separate ground; it is the first ground. Separate from that, there is the ground of relations with a foreign power. Separate from that are matters to do with protecting witnesses, and separate from that is the issue of the prevention and detection of crime. Those are separate grounds. As I said right at the start of my remarks, no one questions the need for certain proceedings at certain times to be held behind closed doors for national security reasons, but that is different from what is covered in the second ground.
If the hon. Gentleman is referring to new clause 14, the answer is no; in the new clause, "national security" is the national security of our country, and our country alone.
So far as I am aware, no coroners involved in certain military operations have made complaints about the existing arrangements for inquests. If the existing arrangements seem to work well, why is it necessary to add an extra element, when the existing element relating to national security appears to cover everything?
My hon. Friend is right: the complaints about the system do not, in this case, come from the coroner service, but from outside it. We are talking about a political matter, rather than just a legal or technical one within the service.
My hon. Friend has said more than once that he agrees that there are occasions when, for national security reasons, juries might be excluded. I certainly do not believe that that should be the case. Does he concede that there are times when the family have no right at all to be represented in the courts? Once again, I certainly do not share that view. Can he conceive of any circumstances in which a family should not be present when an inquest is being carried out on a family member?
My hon. Friend should be clear that our new clause 14 never allows a jury to be excluded, no matter what the circumstances. That is where we fundamentally differ from the Government. In fact, the Government's concessions are insufficient precisely because they still allow the jury to be entirely removed. My hon. Friend mentions the question of the family. Our new clause allows the family back in—well, technically, it gives the coroner the discretion, in every case, to allow the family back in. Under the Government's proposal, the family are still excluded in all circumstances. The Secretary of State, and the Under-Secretary of State for Justice, Bridget Prentice, are shaking their heads—perhaps they want to intervene—but there is no provision in the Government's proposals to allow families back in once they have been excluded.
May I take the hon. Gentleman back to what he said about friendly fire? Was there not a rather famous case, about two years ago, involving the deputy coroner of Oxfordshire, in which American fighters had killed some British servicemen, and the videotapes were not released? Is not that a case in which it might be useful to use such a provision?
That is entirely possible. There is interesting speculation, let us say, about the origin of the sub-paragraphs of clause 11(2)(a). One explanation is that they have to do with relations with the United States and friendly fire cases. However, another historical explanation has been given, and should perhaps be put on record. It is that objections came from the Metropolitan police because of what happened in the Rodney case, in which a young man was shot by the police. The inquest was not able to continue because of the problem—it was at least seen as such at the time—of wire-tap evidence not being admissible. There might have been other problems to do with the legality of intrusive surveillance. That is another possibility for the origins of the provisions.
Under the existing system there is already the opportunity for the coroner to take into account issues of national security. If the Government are concerned about the security of other nations—I can understand that being a concern—could they not make that more specific in the Bill instead of the rather broad concept of a relationship with another country?
That is absolutely right. Throughout the passage of the Bill I have been trying to pin the Government down to putting into the Bill what they really mean, as opposed to making the clauses as broad as they can, either to obscure what they really mean or just in case they need something else later. The central problem still relates to the jury and the family. Why exclude the jury in the circumstances under discussion?
In my remarks I will deal with the jury issue, which is central. To reassure the hon. Gentleman in respect of the family, there is no suggestion that the family should be excluded, even were there to be an inquest conducted by a High Court judge rather than with a jury, except from the protected material. The rest would be as before.
The trouble with that is that in many cases the protected material seems to be implicated in everything that happens in the case— [Interruption.] The Secretary of State says that that might be only a tiny part, but these cases are all of a piece. All the bits of evidence come together to build up a picture, and if one has only part of the picture, how does one explain the difference? One can explain it only if there is some means of finding out what was in the protected material. In practice, once the family had been excluded from the protected material, I do not think that it would be possible to let them into the rest of the case. That is a serious problem.
I take the hon. Gentleman back to the Azelle Rodney case which, as he rightly pointed out, ground to a halt because of problems over intercept evidence. He will be aware that clause 13 allows intercept material to be admissible in inquiries in certified investigations, but if it were allowed in all inquests, surely that would easily sort out the Azelle Rodney case. Does the hon. Gentleman agree that it is extraordinary that the Government originally based their entire case in support of clause 11 on two inquests? One is now back on track; the other is that of Azelle Rodney, which could easily be resolved by allowing intercept evidence.
I believe that the hon. Gentleman is correct. The whole issue could be resolved by generalising the principle that the Government have already conceded—the principle of allowing intercept evidence into inquests. The problem from the Government's point of view is that they will concede that point only when the jury has gone. That seems quite wrong and it comes back to the central problem. For some reason, the Government have concluded that juries are dangerous outsiders, which brings us directly back to the point made by the right hon. Member for Suffolk, Coastal. It is as if the world could be divided into the reliable and the unreliable, and the easiest way, according to the Government, of finding out whether somebody is reliable or unreliable is to ask whether they are a servant of the state. If they are a servant of the state they are presumed to be reliable, and if they are an ordinary member of the public, they are presumed to be unreliable. That has only to be stated to demonstrate how ridiculous the position is.
The hon. Gentleman will recollect that the Government's current position is that they are working towards allowing intercept evidence to be available in criminal trials with juries. We may never get there, but that is the stated intention. If they ever reached that point, it would be difficult to see how the argument in relation to inquest juries could be tenable any longer.
That is entirely correct. I do not understand why the Government see this as the thin end of the wedge, when in the end they are in favour of hammering in the wedge completely.
There might be other problems in the Rodney case mentioned by Mr. Bellingham, but those problems have to do with the admissibility of illegally obtained evidence, which could be dealt with in a completely different way, not by removing the jury.
May I return to the issue of the family and the protected information? Can my hon. Friend conceive of a situation where it is possible for the family to be excluded because the information presented was protected yet the subject of that information was the cause of their loved one's death? How can that be right in any court in any circumstance?
The Government seem to think there is some way in which the family could understand the whole case except for the most important part. That cannot be satisfactory.
What can be done instead is for the coroner to take measures to protect the identity of police undercover agents and informers, for example, to make sure that those people are not endangered by the information's coming out, and when that has been done, to allow the family back into the proceedings. They will then find out the nature of the events that led to the death of their relative. They do not need to know the exact identity of police informers or of undercover officers to understand that.
The Government's attempt to change their proposals should to some extent be welcomed, because they are moving on the issue, but like many other hon. Members I do not believe that they have moved far enough, especially on the crucial question of the jury and on families. What will happen when the Secretary of State says to the court, "Judge, the following information is protected. Remove the jury in this case on the basis of what we tell you." What other information, at that point, will the judge have? The judge will have only the information from the Government. Given the nature of the proceedings, they will have to be held in camera, and will be practically unchallengeable.
Even if the Government come up with a variety of reasons why the House should not accept our new clause 14, which is our attempt to put forward an alternative to the Government's proposal, it is entirely fair to expect them to justify their new proposals. For that reason, I shall seek at the appropriate time to divide the House at least on amendment 2, which has the effect of removing clause 11.
It may assist the House if I try to respond to the points made by David Howarth and explain the changes that we have made in the amendments before the House, which are intended to meet the understandable criticisms that were raised on both sides of the House about the original proposals.
I note that the hon. Gentleman said that he welcomed the proposals but that they did not go far enough. In their parliamentary briefing the Bar Council and the Criminal Bar Association did not qualify the welcome that they gave, as the hon. Gentleman did. Since the Criminal Bar Association and the Bar Council are no mean critics, quite properly, of proposals from this Government and from previous Governments, I ask the House to take account of what they said. I shall read it out in full:
"The Bar Council welcomes the Government's amendments which fundamentally recast the proposals for certified investigations in three important respects: first, the criterion for the Secretary of State's certification is to be significantly tightened. Secondly, the Secretary of State's certificate will trigger consideration by a High Court judge sitting as a coroner. Thirdly, it will then be for the judge, not the Secretary of State, to decide whether it is necessary to hold an inquest without a jury or whether special measures with a jury would be adequate to protect the sensitive information concerned (with a right of appeal to the Court of Appeal.)"
The briefing repeats:
"The Bar Council welcomes the change in Government policy."
Has my right hon. Friend looked at the comments made by the Royal British Legion in respect of the families affected by the case that has been mentioned? What answer can he give the legion and the bereaved families, who see the inquest system as their opportunity to get a final answer about the death of their loved ones? Will my right hon. Friend's mechanism allow them to get that final answer?
Absolutely. The whole purpose of the Bill's provisions on coroners is to strengthen and improve how the coronial system operates—not least in respect of military inquests investigating cases in which relatives have lost loved ones who were serving the country. There will be a chief coroner, who will be a High Court judge, and a deputy coroner, and there will be much greater co-ordination between coroners; we will be able to provide a better service than what has been possible until now. Furthermore, there will be proper rights of appeal when there are concerns. It will no longer be necessary judicially to review coroners' decisions, because proper rights of appeal are embedded in the Bill.
I fully understand the important points of principle raised by the issue—which is narrow, as I shall explain—of whether there will be circumstances in which the court might decide that the only way forward would be without a jury. There are two excellent examples, both of which have been raised by Mr. Bellingham. Neither example—although there is now only one—involved the death of a military serviceperson.
On the question of military inquests, the curiosity of the right hon. Gentleman's proposed changes is that the vast bulk of such inquests are already heard with no jury. The coroners handle perfectly well the issue of what must and must not be secret, and the families are always there. Why should that perfectly good system be changed into a certification procedure involving the High Court?
There is not a good reason in respect of the inquests to which the hon. Gentleman has referred.
I shall detain the House without taking interventions to go through the changes that have been made. In respect of the system being set up, it is my wish that the occasions when the court—not Ministers—comes to the view that an inquest without a jury is necessary will be very few and far between, and we do not anticipate that military service inquests will be involved.
I want to pick up the wording of the Bar Council and go through the fundamental recasting of the proposals. First, the criteria in the amendments have been significantly tightened. I shall come to the issue of the relationship between the United Kingdom and another country, but first I ask Members to look at amendment 94. Three criteria are set out. Paragraph (d) states that the Secretary of State has to be
"of the opinion that it is necessary for the inquest to be held without a jury in order to avoid protected matters being made public or unlawfully disclosed."
Not only were the criteria wider before, but the Secretary of State had simply to be "of the opinion"; now he or she would have to be
"of the opinion that it is necessary".
We have greatly reduced and tightened the criteria; what were generally regarded, including by me, as catch-all criteria have been removed altogether.
There does not seem to be any argument in the House about the interests of national security or the prevention or detection of crime. As far as the relationship between the United Kingdom and another country is concerned, there is no suggestion whatever that such conditions should be used to cover up embarrassment on the part of the United Kingdom; that would be not only a preposterous but a worthless exercise for any Secretary of State, as I shall explain.
In evidence to the Joint Committee on Human Rights, the Under-Secretary of State for Justice, my hon. Friend Bridget Prentice, set out in detail an example in which we had co-operated with a foreign country over the detection and interception of drug dealers; for the reasons given, that would not necessarily come under national security or the detection or prevention of a crime. If the circumstances of our involvement were to be disclosed, that could not only seriously disrupt our relations with that foreign country, but lead to a lack of co-operation on central issues relating to our and that country's interests.
Was not the case to which Mr. Llwyd referred, which came in front of the Oxford coroner about two years ago, exactly that—somewhat embarrassing to both the American Government and ours? It involved friendly fire that had killed our service personnel. Was not what the Secretary of State has mentioned behind the suppression of those inquests? How are such issues being resolved? I do not see that they are.
I shall explain that in a moment. The decision will not be made by the Secretary of State; we are strengthening the law in this respect.
Unlike my party's Front Benchers, I am prepared to accept that there are a number of cases for which jury-free inquests can properly take place. However, the bar has been set too low. We have been told that the Secretary of State would have to be "of the opinion"; that is a low standard. If we look at the certification process when the coroner is making the determination, we see that the High Court judge has only to be satisfied—on the balance of probabilities, I suspect. If the right hon. Gentleman increased the test so that it involved satisfaction beyond reasonable doubt, I would be with him.
I am grateful to the right hon. and learned Gentleman for his acknowledgement that there is a problem with which we must deal. There is, and that view is widely shared. We have made a fundamental change with these proposals, and to those who say that the parliamentary process does not work, I simply say that it does. Bluntly, these proposals are a million miles from how they started out in the original Counter-Terrorism Bill. Under the original proposals, the Secretary of State was to be of the opinion that there should be no jury, and his or her decision was to have been final—subject only to the possibility of judicial review. Furthermore, he or she would then have appointed the coroner. This Bill is completely different. I am certainly open to further consideration in the other place about how we should further tighten the criteria without losing the whole purpose of the measures.
I turn to the second, really important limb. Even under the proposals originally presented by this Bill on publication, the Secretary of State was to have triggered the decision on whether there should be no jury—although the inquest was to have been held by a High Court judge rather than by an ordinary coroner; that was an improvement. I invite the House to turn to amendment 97 to see how these proposals differ. The Secretary of State makes a certification. There have been suggestions that the certification should be made by the court. However, the courts have always been reluctant to stand in the shoes of the Executive when it comes to judgments about national security. They do not want to make those decisions, as was made clear in a series of judgments, including by Lord Hoffman in the Rehman case.
To the extent that the right hon. Gentleman is right, that still does not explain why the other criteria are still in the Bill—the criteria about relations with a foreign state or, especially, the prevention and detection of crime and protection of witnesses. Especially on the last two, the Secretary of State has no comparative advantage over the rest of the legal system.
I understand the point that the hon. Gentleman is making. One could argue that those decisions should be made ab initio by the court, although I do not. The court will make the decision, but someone has to trigger the process—the court cannot start it of its own volition—by saying that there is a real problem; it could be the prosecution. There comes a point where an application is made to the court for it to make a decision about whether it is really essential—necessary—to dispense with a jury or to have other measures. At that point, the process set out in amendment 97 operates. As hon. Members on both sides of the House will see, it says:
"The judge holding an inquest as part of a certified investigation must hold it without a jury if...there is a protected matter that would need to be revealed to the jury...in order for the jury to be able properly to discharge its duty" or
"to avoid a breach of...Convention rights" and, under limb 2,
"the judge is satisfied that it is necessary to hold the inquest without a jury in order to avoid the matter being made public or unlawfully disclosed."
It is the judge who has to be satisfied. The next limb talks about circumstances in which the judge operates with a jury. The Bill plainly anticipates that it is for the judge to determine whether this is necessary.
There is no way that any sane Secretary of State would, for trivial reasons—or for reasons of embarrassment to the Government, to pick up on the point made by Mr. Llwyd—sign an application and make a certificate only to have his head scrubbed by the learned judge for coming forward with an application that was trivial and unfounded. Applications will be made by the Secretary of State where he or she believes that it is necessary not to have a jury but the court comes to a different decision. I very much hope that that will happen, and the Secretary of State is put to proof. The court will anxiously examine whether there are any other measures short of dispensing with a jury that could meet the requirements of the law.
One of the options that the court could consider is the so-called gisting of secret evidence to be put before the jury. Gisting, whereby the gist of secret evidence is summarised, has been used on several occasions; I understand that it was used in the de Menezes case. Some argue that if the de Menezes case proceeded satisfactorily without dispensing with a jury, that could apply in all cases. There may be cases—we think that there is one at the moment—where it is likely to be the judgment, on application to the court by the Secretary of State, that dispensing with a jury is necessary. The de Menezes case shows that the courts have been ingenious and imaginative in setting down certain conditions by which highly sensitive information is protected and, none the less, the jury is able to get to the full facts. One of the processes for that is the gisting of such protected matters.
Under this measure, there is no question but that a certificate would be signed and there would then be an application to the court. It is the Secretary of State who is put to proof to make his or her case. I understand all the arguments made in favour of juries being used in these cases. The judge would, quite properly, lean over backwards to see whether it is possible to meet the concerns of the Secretary of State without having to dispense with a jury. Only in very exceptional cases—they would be few and far between, but they may arise—would the judge come to the view that a jury should be dispensed with.
I have always appreciated that this is a difficult issue for the Government. The right hon. Gentleman seems to be making a compelling argument for the maintenance of the status quo, because there appear already to be several ways through these problems to enable inquests where juries are required to take place with juries. Does not that rather weaken the new framework that he is trying to put in place? I have always accepted that the amendments that he has tabled are a considerable improvement, but they are insufficient.
What the hon. and learned Gentleman suggests is likely to be so in the vast majority of cases. I anticipate that the phrasing of the amendment means that applications will be few and far between, still more so the granting of those applications. That is a good thing, not a bad thing. I can envisage what may happen from my own experience of being responsible first for the Security Service and then for the Secret Intelligence Service and GCHQ, when some intercept or intercept-related evidence was so sensitive that one could not risk its going beyond a High Court judge. Any Secretary of State faced with that situation may decide to resort to not proceeding with an inquest but instead going down the route of an inquiry under the Inquiries Act 2005, which would have the effect of dispensing with a jury. That would be article 2 compliant, because there is no provision for juries in the European convention on human rights. This debate may be slightly uncomfortable, but I do not want to achieve that—I want to achieve a situation whereby the Secretary of State is never faced with that decision but always has to go to the court.
I wonder if the Secretary of State is correct about this. The reason for having an inquest—one of the main criteria, as defined in the case of Amin—is to satisfy the families, not to provide an explanation for the benefit of the state alone, yet the system that is to be set up will never satisfy families. In those circumstances, it would be better to take the inquiry route, which would of course lead to a great deal of condemnation but would at least be clear that there is no attempt to skew the coronial system in a way that was never intended. I feel strongly that what he is trying to do, doubtless for good reasons, will undermine the system, not enhance it.
The hon. and learned Gentleman has made an interesting choice. I commend him for doing so, but it is a much less acceptable choice than the one that I have made and commend to the House. Let us be clear about this. He is saying that there could be circumstances where it would not be possible to hold an inquest with a jury, and therefore it should be for the Secretary of State to decide to hold an inquiry under the Inquiries Act, with as much accommodation for the family as possible. I am powerfully committed to the use of juries in such cases, as in others, but it does not follow that an inquiry without a jury will never satisfy the family. The decision will be made by the Secretary of State and it cannot be tested except under judicial review. In this system, however, scrutiny by the court will be much more intense than it would be under judicial review, because it will be for the judge to make the decision not to review others' decisions.
The problem with the planned system is that once it is on the statute book, it will be used far more frequently than any resort to inquiries under section 2 of the Inquiries Act. Once the system is an established procedure, it will be quite easy for Secretaries of State to make applications and, in a sense, to exonerate themselves from the onerous aspects of the responsibility. They will say, "The procedure is there. Parliament has set it up. There are instances in which coroners inquests can take place without a jury, even though they ought to be one." If I may say so, the Government have approached this process from the wrong direction. Because of that—although I have some sympathy with the Government's position—we will support amendment 2 to delete clause 11. The Government have not made the case that the proposals are the right way forward. Other means already available, which do not require quite so much soul-searching on our part, may be used, but only in the most extreme circumstances. However, I fear that the provisions in the Bill will be used more often.
I simply disagree with the hon. and learned Gentleman. It is of note to the House that the position of the official Opposition is—
With great respect, I have not even finished my sentence. Their position is very different from that taken by most of those who signed the amendment to delete the existing clause 11. The hon. and learned Gentleman accepts that there can be non-jury inquests, but he also says that their use should be determined by a Secretary of State under the Inquiries Act 2005 procedure, and not by an independent judge. His substantive argument is that the measures in the Bill would encourage applications, and that there would be more of them, but I do not accept that. I would be perfectly happy to have a small wager on it with the hon. and learned Gentleman. If he follows the approach of the courts, common law principles about open justice and the quite proper attitude taken by the High Court and the Court of Appeal—and ultimately by the Law Lords—he will understand that the idea that they will act as a patsy, or putty in the hands of a Secretary of State who thinks, "Oh, there is a tiny embarrassment here. Let's go for a non-jury inquest", is frankly nonsense.
I wonder whether the Lord Chancellor overstates a judge's latitude for determination in this matter. From my reading of amendment 97, the judge does not have the capacity to determine more than whether a protected matter would need to be revealed in order for the inquest to take place, and that it would therefore be necessary to hold an inquest without a jury in order to prevent it from being revealed. The judge does not appear to enjoy the clear latitude to determine whether the certification process that the Secretary of State undertook is, of necessity, correct. Perhaps I am misreading the amendment.
I think that the hon. Gentleman is misreading it. The judge has to decide that it is necessary to hold an inquest without a jury to avoid the given matter being made public or being unlawfully disclosed. As the de Menezes case made clear, plenty of other measures can be used, including gisting, which is an important consideration, to ensure that those disclosure criteria are met.
The concerns that we have all expressed about there being an open door on this matter are similar to those we expressed about surveillance issues. In that context, the Government assured us that such surveillance would be conducted only in narrow circumstances, but the door was then opened to a far greater use of surveillance. My right hon. Friend is dwelling upon a contradiction. He has argued that the court is loth to interfere and judge on matters of national security, but decisions in such matters will be dependent on the Government's interpretation of national security. Several of us are anxious that the jury system will be lost in such cases purely on the basis that the High Court will always allow the Government's argument in such instances.
I understand my hon. Friend's point, but I would just say this: it will be for the Secretary of State to make a judgment on national security grounds, or the other grounds set out, but doing so does not determine whether a jury is dispensed with. The Secretary of State will have to go to the court, and it is for the court to say, "We do not necessarily disagree with your judgment on national security"—it may do, because it may think that it is unreasonable—"but we disagree with your view. It is up to us to make the judgment, which is clearly spelt out in amendment 97, about whether or not a jury should be dispensed with." That is the difference. A crucial distinction is being made between the Secretary of State essentially initiating the application and the learned judge dispensing with it.
The Secretary of State's defence would be easier to follow if he had not turned through 180 degrees. At the moment, he is telling us that the terms are all right because they are terribly narrow, but he has just told us that the amendment is light years away from what he wanted in the first place. He must accept that most of us approach his present explanation with a certain amount of suspicion. He started off wanting a huge opportunity to do what he wished; now he says that the remit will be very narrow. I put it to him again: would it not be better to have a system where, in such important circumstances, one would have to go down the potentially embarrassing route of having an inquiry? No Home Secretary would do that without considerable thought. That must be true, and the Secretary of State has made it true by starting off by asking for powers that were manifestly unacceptable.
My point about the measures before us being light years away related to the Counter-Terrorism Bill, which was a Government Bill, and the measures in it were very different. The right hon. Gentleman must accept that the House cannot have it both ways. It cannot say that it wants Ministers to listen to the arguments, then criticise them for so doing. People need to make up their minds.
My right hon. Friend is right when he says that article 2 does not require a jury, but it is fair to say that the jury trial is one of the principal features of common law. He is also right to say that the Government have made a lot of progress, but that raises the question whether the changes were needed in the first place. The key point about article 2 is the need to involve families throughout. My right hon. Friend referred to gisting, and I put to him what happened in the Rodney case in which gisting featured and which the coroner ruled was inadequate. When I read the coroner's judgment, I questioned whether he took the right approach to that issue. If we analyse the Rodney case properly, rather than just looking at it as a piece of hard law, we may find that there may have been a different conclusion if the matter had been tested in the courts. Has my right hon. Friend looked at the judgment of Mr. Justice Weatherup in the Northern Ireland case of McCaughey, which sets out simply and straightforwardly the public interest immunity process, and which would solve my right hon. Friend's problems?
In the light of the overall changes being made, there will be a far greater opportunity for appeals against decisions by coroners than under the existing system. Such inquests will, in any event, be handled by the chief coroner or by another High Court judge on his or her behalf. Forgive me, what was my hon. Friend's second point?
Public interest immunity is used in inquests, and the process worked successfully in the de Menezes case. The only problem is that it cannot be the only measure used to protect material in inquests because if a PII application is rejected, unusually, by the court in a criminal trial and there is a risk that protected material would be put into the open court, it is open to the prosecution to withdraw altogether. That option does not exist in inquests.
I am slightly embarrassed because I seem to be the right hon. Gentleman's only friend in this place on this occasion. It is important that the House should know what is meant by the phrase, "the court is satisfied". I cannot help feeling that the House would be much happier if it thought that the court had to be satisfied beyond a reasonable doubt. If he would include that provision in the Bill, I suspect that he might get a lot more consent and support than he is getting at the moment.
The court must be satisfied that it is necessary, which is a high test. It will be for the courts to decide what the burden of proof is. People may disagree with the criteria, but it is a high test.
Like Opposition Members, I recognise that the Government have moved a long way on the matter, but they have sought to replace a provision that Members of all parties felt was dangerous and unreasonable with an extremely complicated paraphernalia of protections and clauses.
I recognise that the Secretary of State has substantially removed himself from the process, and that is to be welcomed. However, is it not the case that despite the amendments that he has tabled, families, particularly of armed service personnel who have been killed, will still not be able to know in what circumstances their son or daughter was killed? That surely cannot be satisfactory. Would it not be simpler to delete clause 11 altogether?
I do not accept that. We are talking about exceptional and difficult cases in which there is material that everybody agrees has to be protected. The family will not be excluded from an inquest save when the protected material is being dealt with. One can anticipate circumstances such as in the de Menezes case, when PII applications were accepted and some evidence was gisted, so neither the family nor the jury heard the full evidence. I am clear that in those circumstances, whether or not a jury is present, the coroner will lean over backwards to ensure that the family and jury are given the maximum information. There will also be special counsel in those circumstances to act on behalf of the family, although I know that that is not an adequate alternative. There is no requirement in convention rights for there to be a jury.
I do not criticise people who make the judgment that there should be an inquiry under the Inquiries Act, but I believe that it is the wrong judgment. Exactly the same issues would arise, such as what evidence the family could hear. Deleting clause 11 would not deal with the problem that occasionally, inquests will be held without a jury and information will have to be gisted or summarised to the family. The difference is that the decision will be made by a judge under the Bill and would be made by the Secretary of State under the Opposition's proposals.
The Secretary of State spoke about the conditions under which special counsel would be appointed, and I thought that I heard him say that if protected evidence was withheld from the family, for example, special counsel would automatically be available to that family. Can he confirm that that is the case?
I have given notice twice in the House that I wished to raise the question of the inclusion of Northern Ireland in schedule 9, a matter that is covered in this group of amendments. I notice that clause 5(2) includes a provision to ensure that the definition of the purpose of an inquest complies with convention rights. If I may have the Secretary of State's attention, may I ask him whether he has noticed that that does not extend to Northern Ireland? If it was considered right that that definition should comply with the European convention, why was it not extended to Northern Ireland?
Schedule 9 amends the Coroners Act (Northern Ireland) 1959, but clause 5 relates only to the 1953 England and Wales legislation. If I catch your eye later, Mr. Deputy Speaker, I wish to say that the whole of the Northern Ireland provisions should be taken out of the Bill, because they have been sloppily drafted, quite apart from political considerations. I urge the Secretary of State to address the fact that clause 5 does not extend to Northern Ireland. He and his colleagues and civil servants should recognise that and at least indicate that it will be amended in another place.
Amendment 120, to schedule 9, will amend the relevant Northern Ireland legislation, but I am certainly happy to consider my hon. Friend's points. The arrangements have to be slightly different for Northern Ireland, for reasons that I think everyone accepts. I shall come back to that later.
I have made my point and discussed a number of amendments. We have considered the proposals carefully, and I do not believe that the scheme is overly complicated. It provides for Secretary of State certification according to strict criteria, an application to a High Court judge and a decision by that judge one way or the other, and a right of appeal to the Court of Appeal. It is my judgment that that process is fair, above all to the families, and better than what we have now established the Opposition believe is the only alternative—an inquiry established under the Inquiries Act by fiat of the Secretary of State.
I am grateful to the Secretary of State for the time that he has spent at the Dispatch Box dealing with the matters that have been raised. As I disagree with him and will, I believe, vote differently from him a little later, I shall start by saying that I am mindful of the extent to which the Government have moved on this matter. We are considering a very different set of proposals from those that were first presented to me in the summer, in my previous guise as shadow Home Secretary, when they were to be part of the Counter-Terrorism Bill.
I am also mindful of the fact that when the issues were discussed then, in the briefings that the Government provided me with they succeeded in making a case, if not a completely persuasive one, that there was a problem that had to be addressed. Although I believe that their latest proposals could be pushed further, particularly the extraordinary sub-paragraph about
"the relationship between the United Kingdom and another country", which causes me serious problems, I accept that they have tried to move yet further on the matter.
The problem for the Opposition is that the Government have produced a beguiling proposal and said, "We have moved as far as we can, and we think that this is the fairest system we can devise", and are asking for our support. However, another voice makes itself felt within me, saying that there is absolutely no point in setting up a process to bypass the ordinary principle of the coroner system—that there will be a jury, particularly in cases of death at the hands of the state—if the result is that it will not command public confidence and support. It seems to me that nothing in the proposals that the Secretary of State has brought forward solves that problem.
If families are deprived of juries in coroners' inquests, those inquests will be devalued to the point that they effectively cease to be of any real use. I remind myself of what Lord Bingham said about the criteria by which coroners' inquests should normally take place, which bears repeating. He described those criteria as being
"to ensure so 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 learnt from his death may save the lives of others."
The principle is well established that "brought to light" means that the facts require public scrutiny.
I am sorry to disagree with my hon. and learned Friend, but High Court judges often have to rule on matters between the state and the individual—for example, in fatal accident cases and public inquiries. I have not heard the general proposition that the public are not willing to accept the verdict of a High Court judge—generally, I am and, generally, so are the public.
I take my right hon. and learned Friend's point. Speaking as a lawyer and a barrister practising in the courts, I have rarely had difficulty accepting High Court judges' verdicts and judgments. However, the sort of inquest that we are considering will be highly emotive, give rise to serious public concern and be surrounded by a great deal of polemic, and the moderating influence of a jury, which I have extolled in other contexts in the criminal justice system—it also applies to libel cases—seems to be highly effective in reassuring the public that what is happening is not a procedure that is merely for the convenience of state authorities.
I say to my right hon. and learned Friend that the Hutton inquiry into the death of Dr. David Kelly is a classic example of an inquiry that may have been impeccably conducted, but I know from my mailbag that it has never succeeded in answering or resolving some of the basic questions that arose from the case.
I am doing my best to follow the hon. and learned Gentleman, but he has got himself into a cul-de-sac. His argument would be pukka, acceptable and internally consistent if he maintained that there were no circumstances in which it was acceptable to hold an inquest without a jury. However, that is not his position. His comments about Lord Hutton and an inquiry makes my point, not his, because exactly the sort of non-jury inquest that he supports is a one-off inquiry by a High Court judge, without all the procedural protections for which the Bill provides.
I fear that the Secretary of State is not listening to me develop my argument. From the moment I mentioned "inquiry", he seized on the word and played around with it rather despairingly to try to persuade me and the House that there is a serious flaw in my argument. I do not believe that there is.
The inquiry route currently exists, but has hardly been used. When we considered 42-day pre-charge detention, we pointed out that the Civil Contingencies Act 2004 provided a mechanism in extremis for resolving an issue and extending detention, and that that was a better route than extension to 42 days. Although I have no desire for an inquiry to substitute for an inquest, if the problem is reduced, in the final analysis, to the one or two cases over a long period that the Government say they cannot take before a jury in an inquest—I still hope that ways to enable that to happen could be found, especially if we ever reach the point when intercept is admissible for all juries, and having vetted juries, if necessary—let the Government at that point come to the House, make a statement, after which there would doubtless be questions from hon. Members of all parties and polemic, and end up with the second best option. Although an inquiry may answer the Government's questions, I doubt whether it answers those of the public.
The Secretary of State's model is unsatisfactory because the way such things work suggests that every time an inquest presents a difficulty, instead of trying to find every means of resolving it in the existing system—the onus and pressure being on the Government to act in that way—there will be a temptation to say, "Well, we have a procedure voted on by Parliament, and we should go and see the judge, who'll make decisions and we may end up with an inquest without a jury." In my view, that is no better—and cannot be any better—than an inquiry, which will involve the polemic of the Secretary of State's coming here.
My hon. and learned Friend will be aware of the crisis in the Mid Staffordshire NHS Foundation Trust, which is next to my constituency and in which many of my constituents were involved. He also knows that many complaints have been made. I have called for a public inquiry because, under the Inquiries Act 2005, it is necessary to compel witnesses and call for evidence on oath. Does he accept that that, in those circumstances, as with the Legionnaire's inquiry for which I called in 1984 in different circumstances, an inquiry can provide a suitable method of getting at the truth? That is what we need to do.
I am grateful to my hon. Friend, but we must be careful not to conflate two things. In circumstances in which, for example, many people may have died through lack of care in a hospital, there may be powerful arguments for holding an inquiry in any event, and different criteria apply. I want to concentrate on the individual inquest; otherwise we are in danger of being diverted from the main issue.
Is not my hon. and learned Friend saying that, if the Government had started with a narrowly defined point to cover one case, it would be easier for the public to have confidence when they used that narrowly defined power, but given that they started with a much wider provision, the public must believe that the Government want a great deal more occasion for using their non-jury alternative? The Justice Secretary complains that the House cannot have it both ways, but we are not trying to: we are pleased that the Government have narrowed their case. However, the Justice Secretary cannot say that we should not be suspicious, given his starting point. Is not my hon. and learned Friend's solution therefore much safer?
I agree entirely with my right hon. Friend. We cannot escape the starting point and we should not try to escape from the wording of clause 11(2) and the remaining wide criteria for making applications.
I was struck by the comments and questions of Andrew Mackinlay because anxiety has been expressed about how the provisions would apply in a Northern Ireland context. When the Minister of State, Northern Ireland Office, was taxed with the matter on
"The Secretary of State for Northern Ireland has indicated that he does not wish to use these provisions in respect of historic Northern Ireland cases. The MoJ and the NIO will work together to sort out the practical arrangements required to sort out this approach."
The impression conveyed at an earlier stage was that the Government would use the provisions in Northern Ireland because it suited their interests. However, I believe the Minister of State, Northern Ireland Office. The nature of such inquests in Northern Ireland is sensitive for a series of political reasons, and I have no doubt that the procedure that we are considering will never be used there because it is not deemed politically expedient that that should happen. However, that raises in my mind precisely the question why, if that can be done in Northern Ireland, where I have no doubt that public interest immunity matters will play a difficult part, we are apparently still being asked to enact the power in the wider context here. I am afraid that, for me, the matter comes back to the words in the wretched clause 11(2)(a)(ii) about
"the relationship between the United Kingdom and another country," which probably played a major role in the decision to introduce the provision in the first place.
I may not have been in government over the past 12 years, but my experience of such legislation while I have been in opposition is that civil servants get very excited when it comes in, because they see it as a way of resolving all sorts of problems and getting them off hooks that they previously found difficult. They come along and put in a cornucopia of proposals, which then get transformed into something that completely overturns established principle and then, bit by bit, this House starts to ratchet them back.
I am grateful to the Secretary of State for entering into the spirit of this evening's debate, which has proved to be very useful. My conclusion, which I invite my hon. Friends to consider, is that the provision simply is not necessary. Although there may be inconvenience, although problems will remain and although Secretaries of State may not enjoy coming to the House and, in extremis, having to announce that they are going down the inquiry route, the truth is that if the provision is not necessary, there are ways through the problem that do not do what I consider to be the genuine mischief, which is to undermine confidence in the coroner's court system.
Does the hon. and learned Gentleman recognise that not all of us are as confident as he is that the Bill will not be used in respect of what are called legacy cases in Northern Ireland? There are more than a couple of dozen inquests still outstanding from the troubles. We have received assurances and promises in the past from Ministers about what would or would not happen, only to see them set aside. Does he accept the point, which my hon. Friend Andrew Mackinlay made earlier, that clause 11 will extend to Northern Ireland by virtue of clause 38, but that the mitigating effects—for instance, in clause 5(2) or in clause 30, in respect of the right of appeal—will not extend to Northern Ireland, so that we will potentially end up in an even worse situation than anywhere else?
The hon. Gentleman makes some important points about other provisions in the Bill, which I was not going to look at. Nor can I give him a categorical assurance—I am not in a position to do so—about what might or might not happen, but I found the words of the Minister of State, Northern Ireland Office, very interesting, because I am sure that he made them advisedly. He made them in the knowledge that although the power would be going to his right hon. Friend the Secretary of State, there would clearly be a political imperative for him that they not be used, even if it might be convenient for them to be used, because, I suspect, of the disastrous political consequences of that happening.
I simply use that as an illustration of how there are other ways forward through the problem. For those reasons, and because I wish to bring my remarks to a close, as I know that many others wish to participate, we will—I hope with your leave, Mr. Deputy Speaker—seek to vote on amendment 2 and delete clause 11 in its totality.
It is fair to say that the Government have been listening. The concessions that they have made are welcome, even if they have come somewhat late in the day and are not accompanied by explanatory notes or a human rights memorandum, which we would have liked. If it were necessary to have a special sort of secret inquest, the process advanced this evening would go a long way towards developing a model. It is not perfect, as has been said, but it could be improved. However, that prompts the question whether the provision is necessary in the first place. The Bar Council has fallen into error on that, because it has looked at the process, but not at whether the provision is necessary in the first place.
So far we have heard about only one case, the Azelle Rodney case, which, coincidentally and unhappily for the Government, occurred in my constituency and in which I have therefore taken a particular interest. Mr. Rodney was shot by the police in Hale lane, outside a pub where a lot of bemused clientele watched a hail of gunfire, and a few rounds going astray. It was rather surprising that the police were quite happy to talk to the local press about what had been happening—it was all in the Hendon Times and the Edgware and Mill Hill Times—but now things have clammed up for inquest purposes. My constituents are, not unnaturally, interested to find out what is going on given that somebody was shot on our doorstep.
As I said in an intervention, however, the real question is whether what is proposed meets the requirements of article 2. The jury is important for common-law reasons—not for article 2 reasons—but the most fundamental issue is the right of the family to be involved and to know what is happening. That is potentially lacking from the process. The Royal British Legion put the matter quite clearly in evidence to the Joint Committee on Human Rights, by saying, on the point about foreign Governments:
"The objection of another country and/or diplomatic relations will be placed above the need for a grieving family to find the truth."
That is basically the problem.
We are also getting bogged down with the need for certainty in the way in which the issue is approached. An inquest does not proceed on the basis of something being beyond all reasonable doubt; it is not a criminal trial. The reason for holding an inquest is to find out what happened, what the circumstances were and what lessons can be learned, as has been said. An inquest is not a criminal process. Indeed, the Bill makes it clear that any inquest should not make judgments on criminal or civil liability. That is not what it is about.
Can my hon. Friend explain the need for clause 5(2), which, to avoid doubt, says:
"subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death"?
With his human rights and lawyer's background, can he explain to us why it is imperative to include that provision and how deficient it will be if it does not extend to Northern Ireland?
My hon. Friend makes an important point. In fact, I have tabled some amendments to clause 5, so perhaps he might want to wait to hear those arguments later. Otherwise, I might set off on a train of thought that would not be relevant to the point under discussion.
The test for certification is still too broad. We are talking about not just intercept evidence but a wide range of intelligence material—and, indeed, other material altogether. There is the question of wider national security, but the real question is about relations with another country. The Azelle Rodney case, which is the only one that has been prayed in aid, did not concern relations with another country. The relations involved were those among the individual who was shot, his family, my constituents and Scotland Yard—pure and simple. We are told that the provision is about the protection of witnesses, yet the Bill includes a process for protecting witnesses in criminal trials that, if necessary, could easily be translated into a process for inquests. We are told also that the provision is about the prevention of crime, but again, similar processes in the Bill, in relation to the evidential basis for investigation, could have been transferred.
The question we need to ask is this: if the scheme had been in operation five or 10 years ago, would any of the controversial inquests that have taken place in the past five or 10 years not have been allowed to proceed, even though they were able to proceed under the existing regime perfectly satisfactorily, to produce a verdict one way or another and to give the families closure? My concern is that if the process had been in place in, for example, the de Menezes case or the Corporal Matty Hull case, it would have been all too easy for the Secretary of State to make a declaration or a certification and then we would have been none the wiser about what happened in either case.
My hon. Friend is arguing about what was in the Bill, not what the Government are now proposing. Given the experience of the de Menezes case, it seems to me that no judge faced with a similar set of circumstances will agree to dispensing with a jury, because plainly a satisfactory inquest was conducted with a jury in the de Menezes case. I would ask my hon. Friend to take account of what is now proposed, not what was in the Bill.
My right hon. Friend is right about that, but there is still the question of how the judge may decide the case. We did not have that problem in the de Menezes case to start with. The problem is that certification can be challenged only by way of judicial review of whether the Secretary of State was right in his decision to certify something as being against relations with another country. The judicial review test is, of course, an awful lot higher than a simple appeal, which would have been an option. [ Interruption. ] The burden is more difficult for the people making a challenge. One option might be to say that the High Court judge could look at the certification under the normal appeal process and decide whether it was justified, without its having to satisfy the judicial review test, which would require a much higher standard.
My hon. Friend is arguing, in a slightly convoluted way, against going down the inquiry route proposed by the Opposition. The Bill, as amended by the amendments before the House, would provide for the court to make such decisions without a judicial review, which would certainly present a higher bar for the families. The Bill will enable the families to go before a High Court judge who is considering whether to grant a non-jury inquest on the basis of the trigger of the certificate. Because it will be for the judge, not the Secretary of State, to decide, it will be an issue not of judicial review principles but of the merits of the case. The bar would therefore be set much lower for the family than it would be under what my hon. Friend seems to be arguing for, or under what the Opposition are arguing for.
I am not arguing for the Opposition's case; I am arguing for my own case. I think that my right hon. Friend has misunderstood my point. The decision that is challengeable only by judicial review is the decision to put the case into the special process in the first place. Once it is in the special process, other appeal arrangements might well apply. However, the decision to certify it as being required to follow this process—and therefore to run the risk of all the other consequences for the families—is subject to the judicial review test. If my right hon. Friend were to say that the threshold that the families had to meet if they wanted to challenge the decision to certify in the first place involved the normal appeal route, that would be different. However, that is not what is proposed in the amendments tabled by my right hon. Friend. That is a key issue.
We can look at this question from a slightly different angle—in the context of the Binyam Mohamed case. The judges in that case would not go behind the Foreign Secretary's certificate over the material that came from the United States, even though they were clearly not happy with what they were being asked to do, because of the security considerations as certified.
There is no need for the families judicially to review the certificate of the Secretary of State, because they can go one better than that. They can have whatever the Secretary of State is seeking to request as a result of his or her certificate examined on its merits by the court. They could not do that under judicial review.
I am sorry—I do not want to get into a legal argument with my right hon. Friend. I am happy to engage with him, but it might be a sterile debate, because I think that he is looking at this through the wrong end of the telescope. I fully accept that, once a case is in the special process, there are other options for the family to challenge various decisions that the High Court judge might make, through the normal appeal process—the Court of Appeal and so on. However, that raises the question of why the case is in the special process in the first place. The family cannot go behind the decision to certify it on grounds of national security or relations with a foreign country except by judicial review. The problem lies in the original decision to put the case into the process. If the family wants an ordinary, bog-standard inquest, the only way they can challenge that decision is through the judicial review process. That illustrates the difference between my right hon. Friend and me on this issue.
The term "judicial review" is being tossed around the Chamber here, there and everywhere. Does my hon. Friend agree that, for some families, there will be cost implications? It is all very well for the Government to say, "You can have a judicial review" or "You can challenge this in court", but there will be cost implications for the families. It could be very expensive for them.
My hon. Friend is right. There is a little twist to the cost issue, and that is the availability of legal aid for representation at the inquest, although that subject has not been selected for debate. If someone wanted to apply for legal aid for a judicial review case, they might well have to go to the Legal Services Commission and ask for special permission. Such a request would ultimately come back to the Ministry of Justice to decide whether legal aid should be granted for such a special kind of case. So, in the end, the Secretary of State or one of his Ministers would make the decision about whether legal aid should be granted to challenge a decision by the Secretary of State in the courts, by way of a judicial review, on the original certification. That seems a little unfair.
Moving on to the new process, the real issue is the involvement of the bereaved families. If we accept the proposed process, one issue that arises is the representation of those families if they are to be excluded from hearing part of the evidence. Would the judge coroner—for want of a better term—be able to appoint a special advocate to represent them? We know that the judge or coroner can appoint counsel to the inquest; that has always been the case. However, the purpose of that advocate will be to serve the inquest, rather than an individual party. In a complicated case, there could be half a dozen different parties, all fully represented by lawyers, yet the family might not be represented. One solution could be to have a special advocate process, but such a process would go beyond what is presently permitted by the system of appointing a counsel to the inquest. There should be a special advocate process in the Bill, to ensure that the article 2 requirement that the families be properly involved is met.
There is considerable merit in what the hon. Gentleman is saying, but what it amounts to is that, if the process were sufficiently safeguarded, he would accept that there were circumstances in which there could be a jury-free inquest.
As I have said, article 2 does not require a jury. The only basis on which one could argue that a jury is required is through the long traditions of the common law as it relates to the coronial process. We should not get too hung up on the jury issue. We should be much more worried by the fact that the key requirement of article 2 is the involvement of the family. I think that families would be a lot happier if there were juries in these cases, and the new process provides for a jury.
However, my main argument with the Government is the potential for the exclusion of the family from hearing certain aspects of the evidence. The existing system provides ways round that problem. My right hon. Friend has already mentioned gisting, and we know that the coroner in the Azelle Rodney case looked at the possibility of using that process. We are all getting hung up on that one case, but there is an old saying that hard cases make bad law. The Rodney case is a very hard case, and I think that it could result in our making very bad law indeed. That case did not go to appeal; all we had was the judgment of the coroner—in fact, I think it was the deputy coroner—of Hornsey, Coroner Walker, who was given the gist of certain redacted material but not given the rest. There was no question of his challenging that decision.
In the Northern Ireland case of McCaughey and Grew to which I referred, Mr. Justice Weatherup had to decide on that exact point. He stated very simply that the coroner was entitled to see the redacted material, and to decide whether it was of relevance to the inquest and whether it should be put before the inquest. That decision is then subject to judicial review by either side. The Government can challenge the coroner, but so can the family, depending on the ruling. That is not the only option. There is also the public interest immunity certificate process, which worked perfectly adequately in the de Menezes case, and countless others in Northern Ireland and elsewhere.
The eighth report of the Joint Committee on Human Rights deals with the Bill. Paragraph 1.38 sets out a whole series of options available to the coroner. It states that the law
"allows the Coroner to sit in camera on the grounds of national security (a very rare occurrence...), to rule on a claim of Public Interest Immunity...(a more frequent occurrence), to seek... undertakings of confidentiality from interested persons, to order reporting restrictions, and to order special measures for witnesses (including anonymity and provision to give evidence by video link)".
There is a whole series of possibilities, and they have been used in many highly difficult, contentious, sensitive inquests, including the de Menezes case, the friendly fire cases and the inquests into the Nimrod deaths. It has been possible to deal with all those under the existing system.
My main concern is that we are constructing a huge sledgehammer to crack a very small nut: one case—the Azelle Rodney case—which was probably wrongly decided by the coroner in the first place and not subject to testing through the appeal courts. If it had been tested in that way, the appeal courts might well have come up with a different ruling on how it should be processed, as we saw in the Northern Ireland case.
Gisting might well be the answer to the problem. If the gist of the material were made available to a coroner's court, whether there was a jury or not, no state secrets would be given away about how the material had been collected. As we do not need to have a decision beyond all reasonable doubt, that might well be satisfactory for the purposes of article 2.
Let me summarise my main argument. I am grateful to the Secretary of State for what he has done. He has moved a mountain in changing his proposals, but that still raises the question why we have to go through the process in the first place.
It is not my primary intention to address the main question that has occupied the House so far in the course of this debate. That is not because I do not sympathise with the arguments put forward by my Front-Bench colleagues—I do, but they are able to deploy them effectively, as my hon. and learned Friend Mr. Grieve has demonstrated, and I feel no need to add to them.
I would make two exceptions to that self-denying ordinance, Mr. Deputy Speaker. The first arises out of an answer that the Lord Chancellor gave—I was very surprised to hear it—to my right hon. and learned Friend Mr. Hogg, when they were engaged in debating the meaning of the phrase, "the court is satisfied". My right hon. and learned Friend sought to place directly into the Bill the burden of proof required for the court to be satisfied, and the Lord Chancellor, to my very considerable surprise, said that it should be a "matter for the court". Surely that should be a matter for Parliament; it is for Parliament to lay down the burden of proof, particularly on an issue as important as this one. It would then be for the court to decide whether that burden of proof has been satisfied. This point was reinforced by an answer the Lord Chancellor gave to Mr. Dismore. The main thrust of the Lord Chancellor's answer in that argument was that he was "lowering the bar" for the families, but how can we know whether the bar is being lowered if we do not know what burden of proof has to be met? There seemed to be a complete lack of consistency or, if I may say so, even logic, in that part of the Lord Chancellor's argument.
Does the right hon. and learned Gentleman agree that the phrasing in amendment 94, where it says
"the Secretary of State is satisfied" is, in fact, a subjective test? If it said "beyond a reasonable doubt" or "reasonably satisfied", it would make it an objective test, which would make it harder. A judge looking at the certification could say, "Well the Secretary of State is satisfied—goodness knows why he was, but he was genuinely satisfied."
Whatever the answer to that conundrum, it seems to me that it should be specified on the face of the Bill.
The second exception to my self-denying ordinance arises, I am afraid to say, out of something said by my hon. and learned Friend the Member for Beaconsfield during the course of his speech—or, at least, something that I thought I heard him say, but I was so surprised by what he said that I would be perfectly happy to be told that I misheard it. What he seemed to suggest, as I understood it, in relation to certain parts of the Bill, was that the provenance is to be ascribed to civil servants. I do not believe that we should blame civil servants for the provenance of legislation of this kind; it is Ministers who are responsible for the provisions of this Bill, and it is Ministers who should be held accountable in our debates in this Chamber.
I am grateful to my right hon. and learned Friend. Perhaps I did not choose my words as well as I should have, but my experience—having had some briefing on this matter last summer—was that there was a considerable amount of civil service involvement in promoting the need for change. As my right hon. and learned Friend will know, it is also the duty of Ministers to look at proposals that come their way—and the buck stops with them, nowhere else, and I would not wish it to be suggested otherwise.
I am grateful to my hon. and learned Friend.
I am afraid that much of the rest of what I have to say this evening will be a repeat of what I said on Second Reading of the Counter-Terrorism Bill on
Now I have for quite a long time been in favour in principle of the proposition that intercept evidence should be admissible in proceedings before our courts, particularly our criminal courts. I set out my reasons in the debate on the Gracious Address in November 2007. I was delighted when, after the deliberations of the Chilcot committee, the Government finally accepted in principle that the case for admitting such evidence had been made.
However, the Chilcot committee proposed a very rigorous series of safeguards, which it said had to be put in place before intercept evidence could be admitted in such proceedings without giving rise to significant risks to national security—and the Government accepted that when they accepted the Chilcot committee's recommendations. I recognise the need for those safeguards—a recognition reinforced by my role as a member of the advisory group of Privy Councillors appointed by the Home Secretary to monitor the implementation of the Government's decision and the Chilcot committee's recommendations on this subject.
Of course, what I say today, as with what I said on the last occasion I addressed this issue, represents my views and mine alone—and I do not purport to speak on behalf of the committee. It is fair to say, however, that the painstaking work of the officials charged with implementing those recommendations—I come here to praise officials rather than to criticise them—has not been at all easy. There are a number of issues, the resolution of which is essential if the work is to proceed to a successful conclusion, but they have not yet been resolved. They must be resolved, but the Bill's provisions will make intercept evidence admissible in some inquests without showing any recognition whatever of the need for rigorous safeguards or of the need to deal with those issues. As far as the Bill is concerned, those issues might just as well not exist, but I cannot believe that that is either right or what the Government really intend.
I thus pose this question, and I hope that either the Lord Chancellor or the Under-Secretary will deal with it in the course of their replies. Would it not be far better and far more sensible to postpone this particular provision until the officials working on the Chilcot committee's recommendations have completed their work, the Government have decided whether intercept evidence can be admitted in criminal trials and, if so, under what conditions, and a regime can be established and incorporated into our law to deal with the admissibility of intercept evidence as a whole rather than in the piecemeal fashion that this Bill provides for? I hope that I will receive an answer to that question.
Ever since the underground fire in King's Cross station in my constituency in the 1980s, I have been pressing—first as an Opposition Member, then as a member of the Government and now as a Government Back Bencher—for reform of the coroners' system. Generally speaking, it is unsatisfactory, so I welcome most of the provisions in the Bill. It seems to me, however, that the coroner provisions are ruined by the proposition to hold what will effectively be secret inquests.
I do not believe that my right hon. and hon. Friends on the Front Bench are wicked or sinister, and I recognise that they have to balance security and individual liberty, but I think that they are getting the balance wrong. I say that particularly at this time when they have quite rightly talked about rebalancing the criminal justice system in favour of victims and relatives. The secret inquests proposal is a rebalancing in the wrong direction, because inquests are all about victims and their relatives—they are the reason for the inquest system. If someone has been done to death, the truth needs to be brought out, victims' relatives and friends are entitled to know what happened, the public are entitled to have confidence in our system, and lessons are supposed to be learned. The proposition is that a Minister would certify that a normal inquest could be prejudicial to national security, to relations with another state—that is the bizarre one—to the prevention and detection of crime, and to the prevention of threats to jurors or witnesses. However, even under the amended system—I welcome the changes, compared with the original proposal—the Minister will go to a judge, and I do not know whether a single case can be quoted in which a judge has not accepted the Executive's statement that national security was at risk.
Does the right hon. Gentleman accept that one of the most encouraging developments in jurisprudence over the past 20 years has been a willingness on the part of the High Court—some people say that it goes too far—to cut down the Executive? Time and again, judges in the administrative court in particular have held that Secretaries of State have acted ultra vires or been plainly wrong on the merits.
More narrowly, I was challenging any Member of the House to identify a case in which a judge has decided to set aside an assertion by a member of the Government that national security was at stake. I do not think that there are any such examples.
My point is a different one: as I said in answer to my hon. Friend Mr. Dismore, the judge does not have to set aside the original certificate by the Secretary of State that national security, serious crime or the other criteria have kicked in, to decide that a non-jury inquest is not necessary to meet the conditions under the Bill. The amendment is clear that the judge can decide that there are adequate precautions to protect the relevant material, with a jury. That will be the first port of call.
That is all very well, but it would all be part of a process, which would begin, "Old reliable Jack, he wouldn't start off this process unless there were a threat to national security or relations with a friendly state." The judge will be part of a process that has been started off, and is unlikely to put a chock under the wheels at a later stage. It would be possible, but it is very unlikely.
Under the proposal, therefore, the state, in its manifestation as a Minister, could, in effect, order a secret inquest into a case in which agents of the state have killed someone or been in some way involved in the killing of a British citizen, or in which agents of another state have had similar involvement. That is not a sound position in which to place this country, especially as, to say the least, fresh in our minds is the acceptance by the previous Labour Prime Minister that Guantanamo Bay was apparently quite a decent place, or the involvement—to what extent we will never know—in extraordinary rendition, possibly involving the use of British soil, British citizens or people resident here. Let us suppose that someone had died while being tortured, or while being transferred following torture. I am not saying that that is what my good friend the Secretary of State intends, but it might happen, not necessarily under him but possibly under a successor.
I accept the need to protect witnesses, and possibly to protect sources, but that can be done already. When the secret inquests proposition was first put forward, a then Minister said to me, "There will be no chance of a de Menezes inquest unless we get this through." Then, lo and behold, the proposition is dropped, and there is a de Menezes inquest. Evidence on counter-terrorism arrangements was put to that inquest, which was relatively open, and some of the material was read to the family. I understand that the fact that that evidence was presented was welcomed by the police officers who shot Mr. de Menezes, because they felt that they had the opportunity to put their side of what happened and the circumstance in which they found themselves. Therefore, the victims were not the only ones who got some satisfaction from that arrangement. Such matters might be embarrassing, but they are not likely to reveal genuine secrets that would be a threat to national security.
A secret inquest is no good for the relatives, no good for public confidence in the system at the moment, and would not be any good for learning lessons. What lesson could be learned, privately and secretly, from the secret aspect of an inquest involving extraordinary rendition? It might be, "Don't creep to the United States." Inquests are an essential part of our open society.
I shall be brief.
First, I recognise that the Secretary of State has come a long way from his position last year. I served on the Committee that considered the Counter-Terrorism Bill, and strongly opposed the powers that it gave to the Secretary of State of an exclusive jurisdiction as to when a jury-free inquest should be held. That was wholly objectionable, for the reasons that right hon. and hon. Members have expressed during the debate.
However, we must all ask ourselves one question: are there no circumstances in which one would hold that the presence of a jury was inimical to a full inquiry? I found that a difficult question, because I have always been, and I always am on the libertarian side of the argument. I hope that the House will allow me that. However, I served in the Foreign Office and the Home Office for seven years, and I am conscious from my time in government that there are matters—very few—that are not in the interests of the nation to be widely known. One needs to define those categories very strictly, and one needs to set them about with real constraints. I do not think that the Justice Secretary has gone far enough, but I believe that the process that he is putting in place is the right one, because he is allowing the judge—the coroner—to make the decision.
I do not accept that a High Court judge would simply rubber-stamp the original certificate. We might be able to improve the process—Mr. Dismore made a valuable point about the special counsel assisting the court on that specific inquiry. It is a process that we shall consider tomorrow in the context of the anonymity of witnesses. I have tabled amendments.
We could raise the evidential bar so that a judge would have to be satisfied beyond reasonable doubt. That is the burden and standard of proof referred to by my right hon. and learned Friend Mr. Howard. We could say that the Secretary of State should not issue the certificate unless he is satisfied beyond reasonable doubt. There are a number of things that we could do. The central question to which we must return, however, is whether there are some cases, albeit very few, in which it is not right for material to be made available to a jury.
Let me say this to my hon. and learned Friend Mr. Grieve. If material is made available to a jury, even if it is provided in camera, the possibility must be contemplated that it will not be not confined to the jury, but will become public. At the end of the 1980s, I was an Under-Secretary of State at the Home Office. At that time, we had counter-terrorism legislation relating particularly to Northern Ireland. No doubt my hon. and learned Friend will remember the amendments that were tabled with the aim of preventing discovery of documents being made available to defence counsel and other lawyers.
I had charge of that Bill, and we were faced with the considerable difficulty of determining whether there were classes of document that should not be disclosed to defence counsel. We decided that there were such classes of document, and it got me into terrible trouble. What I said in Committee—it was true—was that at that stage there were lawyers who were too close to terrorist organisations. Shortly thereafter, a man was murdered, the solicitor Mr. Finucane, and I was blamed for it. It has always been a great source of distress to me that people thought that I was associated with his death, but that was said of me. The truth is, however, that we reached the conclusion—I still believe it could be the case—that there are classes of document that must be held very close, and what we are discussing is that sort of case.
I shall not vote against the Justice Secretary's proposals, because I think that they are moving in the right direction. I think that they can be improved, and I hope that they will be improved in the other place, but I hope it will be recognised by David Howarth and my hon. and learned Friend Mr. Garnier that although I am always on the libertarian side of an argument, on this issue I shall not be with them.
Let me make one further apology, which I have mentioned to you, Mr. Deputy Speaker. I am afraid that I may not be present for the winding-up speeches. However, I shall be here to abstain in person.
I thank the right hon. and learned Gentleman for at least being here now. The problem with his argument is clear when we examine amendment 97, especially what it asks judges to do. My experience of High Court judges is that they apply the words of the statute as given to them. If they apply the words of what would become clause 11(6)(b)—thinking in the way in which the right hon. and learned Gentleman thinks—they will always conclude that it is necessary to hold the inquest without a jury. What the judge is asked to do is satisfy himself, or herself, that
"it is necessary to hold the inquest without a jury in order to avoid in order to avoid the matter being made public".
If it is the case that juries are leaky in the way that the right hon. and learned Gentleman contemplates, surely that will always be the case.
That is a fair point. My amendment 51—this makes me very reluctant to vote against the Secretary of State's amendment—is designed to secure a certification process which would enable the coroner to make the final decision.
I am prepared to accept that the hon. Gentleman has made a good drafting point, but, while I recognise that drafting is the business of Parliament, let us stand back from the drafting for a moment, and ask where we stand on principle. All I am saying is that I believe that there is a small category of cases that are properly addressed by the kind of mechanism that the Secretary of State is introducing. I think that it can be improved in the way that I have suggested, and perhaps it will be improved in the other place, but because that category exists, I shall not vote against what the Secretary of State has in mind.
I rise primarily with the aim of interesting the House in my amendment. It would strike out schedule 9, which effectively extends clause 7 to Northern Ireland. I also want to express some dismay, however. Clause 11, which is preoccupying the House this evening, is based on exceptional circumstances relating to national security, but seems—I am open to correction on this—not to extend to the kingdom of Scotland. It is as if, somehow, national security considerations such as the disclosure of documents and the involvement of relatives simply will not arise in Arbroath or Dunfermline.
Scots law has always been different. It was different before devolution, and it is different now. They do not have inquests in Scotland, so the point is nugatory. In any event, if the people of Scotland want to change the law it is a matter for their Scottish Parliament, under the Scotland Act.
I did not need the Lord Chancellor to explain the constitutional arrangements to me. I fully understand that which is devolved to the Parliament in Scotland; indeed, I support it. I am merely pointing out how ludicrous it is that such massive considerations should apply in England and Wales—I shall come to Northern Ireland in a moment—while there is no comparable anxiety in relation to Scotland. Of course I understand that the whole regime is different there, but this Parliament is not saying "We need to ensure that there is protection of information in relation to what might be a heavily disputed death in Scotland".
We acknowledge that, under the devolution legislation, matters of this kind are a competence for the Parliament in Scotland, and I have made clear that I support that, but why, in that case, are we legislating in relation to Northern Ireland? Schedule 9 amends an old Stormont Act, passed by the Northern Ireland House of Commons. That Act needs to be updated, but not in this sloppy way.
Earlier, from a sedentary position, the Lord Chancellor told me another thing that I already knew: that there were special arrangements for Northern Ireland, and that we must do things differently. We do not have to do things in a sloppy fashion, however, which is what will happen if we incorporate schedule 9 in this legislation. There needs to be a root-and-branch review, and a bringing up to date, of the coroners legislation in Northern Ireland, and I think that the primary vehicle for that should be the Northern Ireland Assembly. However, if there are overriding considerations that should be ring-fenced or a matter for the United Kingdom Parliament for reasons of national security, there should be a separate instrument, or Bill, for that purpose.
I hope that I made clear to the House earlier my charge that this is a sloppy way of legislating. In support of my case, I cite clause 5(2), which states that in order to avoid any doubt, an inquest must ascertain the full circumstances of a death. That provision is intended to prevent the Government from getting into trouble in connection with their commitments under the European convention. However, it does not extend to Northern Ireland, which, in my view, demonstrates that we are making flawed legislation which was ill thought out and not properly examined. That is why I want to interest the House in supporting my amendment, or comparable amendments, proposing the deletion of schedule 9.
This is not just my brainwave. I rely on the Northern Ireland Human Rights Commission, a statutory body set up by the House of Commons whose functions include a duty to review
"the adequacy and effectiveness of Northern Ireland law and practice relating to the protection of human rights, advising on legislative and other measures which ought to be taken to protect human rights, advising on whether a Bill is compatible with human rights".
The NIHRC has made it clear that article 2 is hit by the effect of this Bill.
I am not suggesting that the statutory NIHRC should tell us how we should legislate. It has not got a right of veto, and it is not a legislative body, but it has a duty to advise and a right to be heard. What is most serious is that it alleges that it has not been consulted about the Bill. It states:
"As regards Northern Ireland, the inquest provisions of the Bill present a case of the worst of both worlds. Clause 38 extends the "secret inquests" provisions of Clause 11 without the extension of a number of the positive provisions of the Bill" that extend to England and Wales.
"The explanatory notes which accompany the Bill state that:
'The legislative changes proposed in the Bill are part of an overall package of reform aimed at addressing the weaknesses in the present coroner and death certifications systems.'
Unfortunately this is not the case for Northern Ireland where the negative proposals in relation to inquests are not set out within a package of general coroner reform. While there has been administrative reform of the coronial system in Northern Ireland in recent years the governing legislation remains the Coroners Act (Northern Ireland) 1959.
The two most glaring omissions", one of which I have referred to already, are
"the failure to extend to Northern Ireland a broader definition of the purpose of an inquest", which is in clause 5, and
"the failure to extend rights of appeal" to Northern Ireland.
I have twice urged the Government to reflect again. For one such intervention, the Under-Secretary of State for Justice, Bridget Prentice, and the Lord Chancellor were present, and there was some confusion between them as to the extent of the legislation in respect of Northern Ireland. They are its architects so they should have been on the ball, but they were not certain—I do not want to rub it in, but they were demonstrably not fully apprised of the impact of their legislation. The Lord Chancellor kindly wrote to me afterwards reaffirming the line, which he has referred to earlier, that the Secretary of State for Northern Ireland and his Minister of State say they will not apply this legislation to what they call the legacy cases—which, as we know, involve a sensitive issue that affects families, loved ones and the supporters of various traditions. As they said they would not use the powers, that begs this question: why not put it in the Bill that they will not exercise those powers? This raises another issue, too. If they will not apply the legislation to those legacy cases, why is Northern Ireland not left out? The matter could be left to be treated as a normal domestic legislative issue by the Northern Ireland Assembly. That principle applies for Scotland. The only case for extending the legislation to Northern Ireland is so that it can be exploited in order to deal with national security issues, and the Government should say so.
Does my hon. Friend not see some contradiction in the fact that only recently the House passed a Northern Ireland Bill providing for the devolution of policing and justice to Northern Ireland, and yet we will have a situation where a devolved Justice Minister, who will have the coroners courts and so forth under their responsibility, will be in the invidious position of being completely bypassed by a Secretary of State who issues a certificate that removes a jury or instructs that part of an inquest be held in absolute secrecy? That Justice Minister and devolved Assembly will then say, "This has absolutely nothing to do with us. We are just the devolved authority and Minister." Does that not test the credibility of devolution in a most sensitive manner?
Of course, I wholeheartedly agree. In terms of the legislation that was so recently passed in this place, I remember expressing concern to a rather empty House about what we were doing. I said it was ill thought out and it had not been adequately dealt with. We had even less time to deal with that Bill than we have had this evening, but we passed it. It seems to me that Members on the Treasury Bench do not understand what they are doing in relation to the constitution. If we devolve, it means that we have devolved and we should not be trying to claw back power.
In any event, we have had no explanation from the Secretary of State for Northern Ireland. Everything has been second hand, by way of a letter from the Lord Chancellor and gossip between Ministers sitting on the Front Bench when they have been challenged. This is not the way to make legislation and I urge hon. Members to join me, or others who succeed in calling a Division, in striking out the provisions that apply to Northern Ireland so that we can make better law instead. If necessary, we could pass precision law, which is targeted on national security issues, if they exist, but which leaves the good people and Assembly Members of Northern Ireland with the responsibility to deal with their coroners courts as they think fit.
I rise to make a brief contribution, particularly on the issue of military inquests, in which I have a particular interest. I am a Wiltshire Member and it is the Wiltshire coroner who currently carries out the vast bulk of military inquests—although previously it was the Oxford coroner—because of the geographical peculiarity that our casualties from Afghanistan and Iraq are repatriated through RAF Lyneham in my constituency.
I raised the matter of military inquests in Committee. The Under-Secretary immediately responded to my concerns about whether they would be subject to the Bill's provisions by saying that most military inquests already have no jury. She is to a certain degree correct, but she is also incorrect in that the Coroners Act 1988 stipulates that the coroner may ask for a jury in military inquests, although they only occasionally do so—I believe a case is at present being considered in the Court of Appeal. Therefore, she was not quite right that all military inquests have no jury, although many of them do not.
What we are considering today is a special case. I welcome the fact that the Secretary of State has altered the provisions considerably since their introduction. I understand his point that incredibly few cases would fall under the provisions of clause 11—he anticipates one or two cases going through the designated procedures and going to the High Court. However, he is asking us to put on the statute book laws that a Secretary of State—not him, but someone at some stage in the dim and distant future—may use not for the laudable aims he has described, but for the much less honourable purpose of avoiding Government embarrassment and the like.
In order to illustrate my point, it might be helpful if I focus on one recent inquest carried out by the excellent Wiltshire coroner David Masters. Although he has retired as a coroner, I am very glad he agreed to carry on as a particular specialist in military inquests. He will continue to hear some of those inquests as a deputy coroner.
The inquest I have in mind is that into the tragic loss of Hercules XV179, which was on its way from Baghdad into northern Iraq, flying at an extraordinarily low level. It went down with 10 soldiers and airmen on board, all of whom were lost. Many of them were my constituents, or were at least based in my constituency. There are all sorts of peculiarities about XV179. The plane was flying at remarkably low level and it was on special forces duties. That has been made plain but a number of things about the special forces duties in the evidence given to David Masters were redacted, and perfectly happily so. Indeed, there were all sorts of secret things we never got to know about because they were secret and that is fine.
Other peculiarities of the case included the fact that David Masters discovered that the Americans knew there was enemy activity in the area where XV179 was on that day, but they failed to pass that on to the British, so the pilot did not know that. Curiously, the Americans refused to come to the Wiltshire inquest and to give evidence to it, because they felt it might be embarrassing to them as they had failed to pass that intelligence on. It is clear that there had been a breakdown in intelligence between the two countries.
As I said, there were a variety of very peculiar things with regard to Hercules XV179, so David Masters looked into them and he came to a perfectly satisfactory conclusion. He said that it was shot down by enemy fire—probably small arms fire; possibly a rocket-propelled grenade—and this was a tragic loss. The case had one other element and he looked into that too, concluding that had the plane been fitted with suppressant foam in the wing tanks, as all the Australian and American Hercules planes are, there is a chance that the tragedy—it is no certainty—might not have occurred. He was rather critical of the fact that the Government had not fitted the foam in the wing tanks, and he gave the Government quite a hard time over it. Of course, the Oxford coroner had recorded something similar with regard to the Nimrod case and two or three other military inquests of that kind.
Although the Government say that the Bill's provisions are not designed in any shape, size or form to interfere with the coronial process, which worked extraordinarily well in the case of flight XV179, the circumstances of that case fit, without question, into the definitions as laid down in the Bill. It is perfectly possible that some Secretary of State in the future, seeking to avoid embarrassment for the Government over suppressant foam, to avoid upsetting the Americans over the failure of intelligence or to keep secret—perfectly properly—the fact that it was a special forces flight, might use any of those excuses to say to the High Court, "These are important matters and it is important that we should not hear this inquest in public, because it is against the national interest."
I understand the importance of the military inquests, particularly the case to which the hon. Gentleman refers—I happen to have known one of the crew who was on that ill-fated flight. I can honestly say to him that I can provide him with almost complete reassurance because, as he will know, there has never been a jury involved in a military inquest. There have been more than 200 military inquests and the issue of juries has never arisen. It is hard to see in what circumstances it would arise.
I am happy to accept the correction on the matter. The point I made a moment ago is that I know that there were no juries involved, but the inquests are not secret. There is nothing private about the inquests at all—the families and the public are present. As the local Member of Parliament, I was at the inquiry—it was a public inquest and inquiry.
If the hon. Gentleman will allow me, I shall continue for the moment. The risk involved is that the Bill, as drafted, may allow a subsequent Secretary of State to say, "These are delicate matters that might affect the security of the nation and might embarrass our great friends, the Americans, so for those reasons I request not only that the case should be heard with no jury but that it should be heard in secret."
These powers explicitly arise only where otherwise a jury inquest is required; they cannot be brought into force, as the Bill makes absolutely clear, unless—many Opposition Members are nodding—otherwise a jury is required.
I am surrounded by Queen's counsel and learned—I am probably the only non-learned gentleman in the House this afternoon. [Interruption.] Frank Dobson is equally as unlearned as I am—I beg his pardon.
Am I not right in thinking that the Coroners Act 1988 itself stipulates that the coroner in military inquests may ask for a jury? That tends not to be the case but it is perfectly possible that some military inquests would have juries and therefore would become subject to the terms of this legislation. I am ready to be corrected by the very learned Lord Chancellor if my understanding is wrong—it is certainly also the understanding of INQUEST, which has raised the point with me. It says that it is perfectly possible to imagine that military inquests would be caught up by these provisions and that therefore at some future point embarrassing military inquests of the kind that I have described would be subject to secret hearings. I would be happy to accept the Lord Chancellor's assurances, but perhaps he could get some advice from those in the box on this. It might be that I am barking up the wrong tree and I would be happy to accept that I am. All of our advisers, including plenty of QCs in INQUEST and in the other organisations briefing us, advise us that there is at least a risk that that might be the case. For that reason alone, I shall join my hon. Friends in supporting amendment 2, which seeks to strike clause 11 out entirely.
A number of hon. Members wish to speak and there is a lot of business to be got through, so I shall attempt my own exercise in gisting.
The key issue involved here is that of public confidence, as other hon. Members have said. I was involved in the Ricky Reel case, which some may recall—my right hon. Friend the Lord Chancellor certainly will, because he was exceptionally helpful. A constituent of mine went missing following a racial attack and was subsequently found dead. It was a most distressing case in which the most critical issue for us was to ensure that the interests of the family were protected, that they gained as much information as possible and in the end at least felt that they had had a fair hearing. I also met the de Menezes family and their lawyers, and discussed some of the issues that arose out of that case.
The concern that a number of us have is that although the Bill contains elements relating to coroners that we wholeheartedly support, because they are a significant move forward, on this clause 11 issue we share the view of the Royal British Legion. My hon. Friend Mr. Dismore read a quote from it, but he failed to include the first sentence. The Royal British Legion stated:
"As long as Clause 11 remains in the Bill, we regret it may not be possible to dislodge the perception that crucial evidence will be heard behind closed doors."
That is the key issue, because the provision is a step too far in terms of public confidence. It is regrettable because the system has evolved in a way that has adapted to the needs of national security and other issues—the de Menezes case certainly exemplifies that—without undermining overall public confidence. This measure would be a step too far and it would undermine public confidence.
As my right hon. Friend Frank Dobson has said, the whole panoply of methods was used in the de Menezes case. The High Court judge who was appointed to undertake the case was able to judge on public interest immunity applications, and he did so. However, he did so in such as way as to enable the process of evolution throughout that hearing, so that where he ruled in respect of PII that certain information was not to be provided, he also ruled that some information could be provided to the legal teams on the strict understanding of confidentiality and security. In that way, at least some element of confidence was maintained that the family was having access to that information. My key point is that their own lawyers, whom they had appointed, were able to see that information.
I can understand why people are arguing for the introduction of special advocates, but they have not had the public confidence that is instilled when one appoints one's own lawyer. I was involved in the early Special Immigration Appeals Commission cases when the Sikh gentlemen were arrested, and the key issue was that the special advocate was not able to communicate the full range of information to the person they were meant to be representing. At least in the de Menezes case there was a line of communication and where there was a common agreement that only certain information was provided, the idea of gisting was brought forward and summaries were provided to the family, and in that case confidence was maintained.
I am concerned that the processes that the Secretary of State has brought forward to improve on the original proposals certainly do not go far enough and do not tip the balance in maintaining public confidence. In parliamentary procedural terms there is a phenomenon called Strawism, whereby one produces a Bill that throws in the entire kitchen sink and is so outrageous that the House recoils from it, and one then introduces a series of amendments and Members skip through the Lobby happily, thinking that they have obtained major victories and amendments. This is not an example of Strawism in extremis, but it is close to it. I do not think that the Bill has gone far enough in protecting the interests of the families—those who have lost loved ones—and in maintaining public confidence. On that basis, clause 11 needs to be withdrawn, and that is why I shall support amendment 2.
We have heard something very important from John McDonnell. As usual, he made his case strongly, but he also introduced a new term. We have heard of Thatcherism and Blairism: we now have Strawism. No doubt we will look back with fondness on this occasion on which it was first used.
I am probably the only hon. Member here who has acted as a coroner. In my early days I was an assistant coroner. I was taught always to empanel a jury if the case was complicated or there was any possible involvement of the state or a public body, whether by negligence or act of omission or commission. My senior partner then—he is now the main coroner for the district—always believed that we had to shed the maximum amount of light on the evidence.
The whole purpose of the coronial system is to discover what happened in relation to the death. Specifically, if there is the possibility of an act of omission or commission by an authority—be it the police or anyone else—it is vital that that happen. Over the years I have also acted as an advocate at inquests many times. After hearing all the evidence, the family leave the court able to reach the conclusion of the grieving process. In many cases, the grieving process remains open until the coroner's verdict or the jury's verdict has been delivered and the family knows, having heard all the evidence, what happened. To those of us who have not lost close family or other loved ones and who have not been through the process, it may sound difficult to believe, but I can assure the House that hearing all the evidence does very much assist in the grieving process.
Frank Dobson mentioned the issue of confidence, and that is the main building block of the coronial system. There are some good ideas in the Bill. Indeed, there are good and bad coroners, as there are good and bad in every walk of life. We must weed out the bad ones.
The right hon. Gentleman said that PII certificates might not work because the judge might not grant them. That decision would be appealable, so it is unlikely that anyone would withdraw from the proceedings simply on that basis.
Some 10 or 12 years ago, there was an arson campaign in Wales. Some of the individuals were caught and charged, and appeared before Caernarvon Crown court in north-west Wales. It was a unique case in that MI5 was heavily involved in tracking those guys down. MI5's evidence was redacted, gisted and subject to PII certificates, but the jury followed it adequately. Nobody—prosecutor or defence counsel—complained about the fairness of the proceedings. I suggest that that is one reason why we could look at the panoply of existing ways we could achieve justice. At that time, there was a fragile peace in Northern Ireland, and the identity of the MI5 agents had to be protected at all costs, because not to do so might have had fatal results. It worked, and nobody has ever complained about how that trial was conducted. Justice was achieved in that case.
I am very concerned about clause 11(2), which refers to the relationship between the United Kingdom and another country. I mentioned in interventions that the deputy coroner for Oxfordshire has made many loud complaints about the inability of the US air force to deliver the videos of the fighter pilots unfortunately mistaking UK troops and dispatching them. The coroner was brave in raising those concerns in public, but I suspect that he did so because he was unable to get anywhere in private with the US authorities. His only avenue then was to make the issue public. I guess that his actions would be caught by this provision, and it would be enough for any Secretary of State to apply to minimise any embarrassment for the US.
I am not casting aspersions on Ministers—it is not part of my function to do that—but clause 11(2) covers the "relationship" between the UK and another country. Embarrassing that other country would undermine the relationship, so that would be the effect of the wording, unless Ministers can tell me otherwise.
Along with Mr. Hogg, I am a member of the Criminal Bar Association, and it was refreshing to hear the Secretary of State praying in aid that organisation. Far be it from me to suggest that he was desperate for support, but he certainly cited its opinions a lot, and fair play to him. We are fortunate to have an independent judiciary, and we are extremely fortunate that members of the High Court bench are prepared to tell the Government when they go wrong. That is refreshing, and it is how a democracy should work, with the separation of powers.
If I have understood the process correctly, the Secretary of State will issue a certificate and the High Court judge will decide whether it should proceed. I suggest once again to the Secretary of State that the PII certificates work day in and day out in our courts—I mentioned the case at the Crown court in Caernarvon. Alongside that we have that other process we have heard about today of gisting—a wonderful word. It has been in the public domain before, but it has been very much in evidence today. Why not use that process too? The Jean Charles de Menezes inquest employed all those techniques, and it seemed to work all right. Have we not learned anything from that experience that can inform our approach? If we employ all the safeguards—the judge will undoubtedly have in mind the need to ensure a fair trial, that there is equality of arms and that both sides of any dispute are heard fully and properly—that inquest proves that we do not need this legislation.
My greatest fear—I do not know whether it will apply to military inquests—is that there is no doubt that families will feel short-changed if they do not have the right, and I use that word advisedly, to have a jury trial in the coroner's court when there are these complicating features. Yes, that trial should apply all the safeguards because, as was said earlier, of course juries can leak.
I would not want anybody's life to be imperilled by national security leaks—of course I would not—but as a lawyer I do not see the need for this provision, given that we have the existing provisions and just need somebody to pull them together. It is not beyond the wit of a High Court judge to do that easily and comfortably and to ensure fairness. A High Court judge has been appointed because he or she is probably at the top of the legal tree anyway—they are not there for any other reason—and they are there because they have very special qualities. Given that they have very special qualities, surely they could ensure that we could avoid using this particular provision.
My biggest problem is that people will feel short-changed, hard done by or whatever phrase we want to use. Families will not feel that the matter has been heard properly, and I think that that is the worst possible thing that could happen. Given the reason why coroners' courts are convened and given the fact that families deserve to be told the truth, the whole truth and nothing but the truth, I believe that it is those families' common law right, as mentioned by Mr. Dismore, to be entitled to have a jury hear their case.
The hon. Member for Hendon, who is Chair of the Joint Committee on Human Rights, referred to several things that the Committee had suggested in its concluding paragraphs—no fewer than nine, or maybe 11, suggestions that would add to the panoply of provisions that we already have. I think that this part of the Bill is flawed. I said that on Second Reading. I am as concerned now as I was then, and although I acknowledge, with great respect, that the Secretary of State and his team have moved in a certain direction, I think that the other place will make them move even further.
I shall be brief, because I want just to raise a few issues about clause 11. There has already been a great deal of debate on that clause. At the outset, I should say that I recognise that the Secretary of State has moved a very long way from where he was on Second Reading. He has introduced significant changes. The Bill contains a great deal of good in the part that deals with coroners, but I still have a problem with clause 11. It is pretty obvious that the provisions of clause 11 will come into play only in some contentious—and then inevitably high-profile—cases. That is inevitable. It is more critical than ever in such cases that we ensure that the families of those people for whom the inquests are held are satisfied with the way in which they are held.
I am still not clear about how we can be sure that the families will be properly represented. I hope that I will hear an answer later in this debate. My hon. Friend Mr. Dismore raised the question of special counsel—whether there will be a special advocate. The Secretary of State referred to a special advocate for the inquest but did not mention anything similar for the families. It is even more important that the families' legal representatives are able to take part fully in the process and that, if necessary, legal aid is made available.
The hon. Gentleman will know that new clause 31, which I tabled but which has not been selected for debate, proposed precisely that—legal aid for those whom the coroner chose to designate as deserving of it. I hope that that new clause will be taken up in the other place.
I thank the hon. Gentleman for that point. It is critical that we do not reach a situation where a family cannot be properly represented, and represented in two ways. First, how are they represented at the point of certification and how is it possible for them to be involved in challenging the process of certification? Secondly, if certification goes ahead and an inquest is held at least partly in private, how in the families' absence will their legal representatives be involved in hearing that evidence?
I am also still far from clear on what ills the change is supposed to cure. Two cases have been referred to—one in which an inquest was held up, and another in which the inquest is now going ahead. That is all. It is suggested that they were the trigger for the powers. I have not heard a long litany of cases in which there have been problems. Indeed, some very difficult cases have gone ahead, with safeguards in place to make sure that some evidence was not made public. I need to be convinced that the measures are the only way of dealing with the one or two problem cases.
The Secretary of State says that only one or two cases will be dealt with in such a way, but in clause 11—even the revised version, once his amendments are made to it—there are quite broadly drawn criteria that could be used if an inquest without a jury is sought. The criteria include protecting national security or a relationship with another country, and preventing or detecting crime. It seems that to some extent we are dealing not with problems that have occurred but with hypothetical problems that may occur in future, and that always makes me nervous in legislation. It always makes me nervous when we are sold legislation on the basis that something may happen in future to make it necessary; we should rather be able to point to a real problem that has happened and needs to be corrected.
The Secretary of State says that uses of the power will be few and far between, and that the judges will decide, but I am not sure that I can read the minds of High Court judges and say what they would do in future, when faced with representations from a Secretary of State that an inquest should take place without a jury. I am not sure, either, what counterweight there would be to the Secretary of State's propositions when the judge comes to make the decision if, as I suspect, the family will not easily be able to make counter-representations. I need to be convinced that the current inquest procedures to protect sensitive material cannot continue to be used.
Finally, I want to reinforce the point made by my hon. Friend John McDonnell about public confidence. One of the most sure and certain ways of destroying public confidence in a process is for the public to believe that things are being hidden from them. A few years ago, I recall dealing with the case of Zahid Mubarak, although not in the context of an inquest. He was a constituent of mine who was murdered by a racist cellmate while in Feltham young offenders institution. One of the worst aspects of the case was the continued resistance of the Home Office to holding a public inquiry. It was only after the matter had gone to the House of Lords that the family were able to get a decision made to hold a public inquiry. That poisoned the case—the belief that what was happening was an attempt to keep secret what was going on.
That, I suspect, will be the consequence of inquests that the public perceive to be happening behind closed doors. It will be much harder for the state—the Government—to persuade people that there has been a fair process, and that there is not something going on that people want to hide. That is an important consideration in trying to maintain the integrity of the coroner system; people must feel that it is working and that its findings can be trusted.
I want to follow on from Mr. Gerrard, Frank Dobson, and the hon. Members for Meirionnydd Nant Conwy (Mr. Llwyd), and for Hayes and Harlington (John McDonnell); the latter introduced the concept of Strawism, and made an important point. I have been in the House for a very long time now—30 years, I think. During that time, an Official Secrets Act was brought forward. I remember that the first intimation, or leaks—that is frequently how Governments are run—were that Lord Hurd, as he now is, was about to introduce into the House a truly draconian measure. When the Bill was published there was such relief that the full weight of all that had been leaked was not to come about that the House almost passed it with a sigh that this was a major improvement. It is true that sometimes our fears are too great, so any concession inclines us to be more respectful of the measure before us.
I have difficulties with the Bill and they centre on clause 11. The right hon. and hon. Members whom I mentioned spoke about a profound principle in our system of law and liberty. The circumstances into which a coroner may inquire are the most obvious ones. We would want to know the circumstances leading to someone's death in the protection or custody of the state, and whether the death was murder, whether it occurred in suspicious circumstances, and so on.
There is a wider public interest in that matter, not just the family, although one understands and reaches out because the death of a member of the family is of crucial importance to the family and to neighbours and friends. It is also of crucial importance to us as a society. Why bother to have coroners' courts if we are not interested in the circumstances of an unexpected or unexplained death that happens in our midst?
Clause 11 has been said to deal with secret inquests. Indeed, it does invoke secrecy,
"in order to protect the interests of national security".
Who are we to argue what national security constitutes? That, essentially, has been the argument of the Executive through the ages. We must determine that because we cannot know what it is that we must secure in the national interest.
We have moved on from that. I give the example of the injunction that the Nixon Administration tried to secure against The New York Times in the case of the Pentagon papers. The American authorities insisted that there could be no revelation of the papers, which went to the security and heart of the American state. They dealt with the Vietnam war. A judge decided the matter and the papers were published in The New York Times. No state fell. America progressed and retreated from Vietnam.
What was in the public interest? Was the secrecy in the public interest? "National security" was the cry. Absolute national security was what the Nixon Administration demanded. They were denied it by the independence of a judicial process. Looking back 40 years later, did the world end? No. But the result was greater public knowledge and a wider public perception of national public policy. It could therefore be challenged, debated and understood.
The second reason given for an inquest to be held without a jury is the relationship between the United Kingdom and another country. From memory, this and the preceding reason appear in our Official Secrets Act. I remember from the debates that the relationship between the United Kingdom and another country was a contested matter. These matters are vital to everyone's interest—every citizen of this country and everyone who is concerned about public policy. These are considered greater interests than the ascertaining of the death of a person by the judgment of two people. The Secretary of State, or the Justice Minister, or the lord high panjandrum—he has so many responsibilities—puts the notion before a judge. The judge will determine what the public interest is, but many of us feel that it is for Parliament to decide what the public interest is in matters of this nature. The rule of law must be open and above board, preventing or detecting crime to protect the safety of a witness or another person, or preventing real harm to the public interest. This, however, is a whole bag that catches everything that is inconvenient—perhaps only that—to those who administer the state.
As I said, I have been here a long time. There was a time when the attestation of a public interest immunity certificate, for instance, was almost an absolute assertion. One learned from the unravelling of the Scott inquiry that judges did not necessarily look behind the public interest immunity certificate; in fact, they quickly back-tracked. We are told that now judges take a determined interest in a public interest immunity certificate. However, there were all the arguments leading up to the Scott inquiry, which was about the standing of Britain—whether we had exported arms and whether the process had been correct. Scott's judgment was that two Cabinet Ministers had failed in their constitutional duty to keep the House informed.
It may seem that I have wandered widely from what happens in a coroner's court. But a coroner's court is no less a part—and a very important part—of our freedom. It is a safeguard that ensures that the state cannot just override the inconvenience of someone's death or something that has happened to someone. It tells us the actual nature of what our real public policy is. That, I think, is why the provisions that I have been discussing are in the Bill.
The Secretary of State's argument is that the interests of our country may not always coincide with the rule of law. We are talking about Executive, Crown appointees who use prerogative as the foundation—although much circumscribed by the House over time—through which there can be protection in respect of the inconvenience of the public, united, disagreeing with their judgment on what public policy should be. That is the tension that lies in secrecy about great matters. We are talking about the death of a citizen, and the reasons set out in the Bill are important. We should not take clause 11 or the processes that get us there lightly. Is it not better to know that when such a certificate is brought into place, it is open to real challenge?
I have learned a new word: "gisting". I thought that "gist"—the "gist" of something—was only a noun. Just think about it: the "gist". That is not the facts.
The hon. Gentleman says that it is "spin, spin". I do not accept that it is necessarily intended to be that, although we are well accustomed to spin. But each one of us does a précis of things. I remember it from school; we were marked on the quality of our précis, and we did not always do a good one of the central facts. I do not doubt that clever judges and those educated and powerful in the law, which I certainly am not, can make a better fist of things than I did as a schoolboy. But I do not like the idea of only the "gist" of something being involved. However, it seems acceptable to many in the House, so I listen with interest.
The principle that our processes should be open, however inconvenient, is one that has to be genuinely undermined by the arguments of the Executive, and we did not hear that today in the responses to David Howarth, who spoke on behalf of the Liberal Democrats, or to my hon. and learned Friend Mr. Grieve, who represented us so eloquently from the Front Bench. This House could therefore confidently reject this proposal on the basis that something better will come in another place, whose Members will have enough time and opportunity properly to examine these contentions.
In the Public Bill Committee, I made the same criticisms of the Government's original clause 11 that David Howarth made earlier, so I was no fan of that proposal. However, I support the Government's current proposals.
I said in Committee, and say tonight, that we must approach two principles in this debate. First, is it within Parliament's contemplation that in an investigation into a death where there would be an inquest with a jury, there might be protected matters of such sensitivity that the inquest could not proceed with the jury? It is reasonable for some parliamentarians to conclude that there are no circumstances in which we should allow the inquest to proceed without a jury, and hon. Members who have come to that conclusion should clearly oppose these provisions. I come to the other conclusion.
When this matter was discussed in Committee, what defence was given for the idea that we should have secret inquests where they involve matters of relations with other countries that may have legal systems that are nowhere near the standard that we would wish or expect?
I am not the Minister defending such proceedings. However, national security involves relations with other nations, and the argument is that the Bill's definition of national security alone might not protect some of the exchanges of intelligence with other states' Governments that would involve matters of shared national security—theirs and this country's. That was the Government's reason for extending the provisions beyond the phrase "national security", but it is not my explanation.
The first principle concerns whether there might be circumstances where there are protected matters that mean that a jury could not be empanelled in order for the inquest to proceed. I am fortified in coming to my conclusion rather than that of those who disagree with this by the fact that there are apparently, even today, inquests that are stalled because of such a situation. As we have heard, there have been two such instances in the past. It is true that in one of those cases the impasse has recently been resolved and the inquest is going to proceed, but the other one is still stalled. If there is already a case before we pass this law, it is within our contemplation that there could be cases in future.
The case that has been stalled has no international dimension whatsoever—it is about a straightforward police shooting.
May I put a hypothetical case to my hon. Friend? Let us suppose that somebody is in detention in Pakistan and is tortured, and there is an allegation that the British secret services were complicit; that that individual is then rendered by, say, the United States to Morocco, where they are tortured again and there is a suggestion that the British secret service supplied questions; and that he then ends up in Guantanamo Bay, where he dies of his injuries. That is the case of Binyam Mohamed; he survived, but let us suppose that he died. Is that the sort of case that my hon. Friend thinks might be caught by these provisions?
I agree that these are serious issues. However, even the new clause recognises that there might be matters of national security that form the basis for saying that protected matters can arise. I do not think that it is helpful to get involved in an individual case.
The second principle is that it is surely the Executive's responsibility to identify protected matters, subject to an unreasonable decision being capable of challenge in the courts through judicial review, but it is the judiciary's responsibility to determine how to conduct judicial proceedings. The Government try to make that distinction in the new proposals. A judge making a determination on how to conduct an inquiry in the knowledge that protected matters have been identified by the Executive will have before him or her what has been called the panoply of powers short of not having a jury at all, and the Bill may add new powers to that panoply. The judge could consider the measures that have been discussed tonight and determine whether some of them would be sufficiently effective to safeguard the protected matters so that the inquest could continue with a jury.
The point that the hon. Gentleman made in Committee applied to national security, and I could follow that. But the Government's proposal does not apply just to national security but to the other three matters as well, about which the Government have no particular advantage over the rest of the criminal justice system.
That brings us back to judicial review, I am afraid. That would be the answer to someone saying, "This measure does not prevent crime or protect the life of a witness—the Executive are being unreasonable in saying such a thing." That would be a matter of challenge through judicial review.
When people say that the measure is still not right, and that work needs to be done in the other place, what comes to my mind are the remarks of the Secretary of State, when he said that a judge would bend over backwards to use other powers so as not to exclude a jury from an inquest. The amendment does not use words "bend over backwards", but equally it does not use a qualification that would be recognised in legal terms to ensure that a jury would not be empanelled only in an in extremis case. In that sense, a bit of work might still need to be done on the measure.
May I take the hon. Gentleman back to the point he made about judicial review? In the light of his answers to the Liberals' questions, does he accept that a judge would not be in a position to judge the merits of the Government's decision? As he said, the judicial review would judge only the reasonableness of that decision so that at no point would anyone judge externally the merits of the Government's decision.
The right hon. Gentleman has not been here all through the debate, and other speakers before myself have made the case that today's judiciary challenges strongly any Government claims that they have made the right decision. A judge in a judicial review challenge would be able to examine the Government's case that there were protected matters that should not be disclosed in an inquest.
I support the Government's proposals in amendment 97, although there is still the question of whether a judge would bend over backwards to ensure that there is a jury in an inquest unless the case were particularly exceptional.
With the leave of the House, I should like briefly to respond to the points raised in the debate before David Howarth concludes it.
Mr. Howard mentioned intercept evidence and asked why we were not waiting for the Chilcot review before accepting intercept evidence in special inquests in the circumstances described in clause 13. I am in exactly the same position as he is, because I want to be very cautious about allowing intercept evidence to be made available in criminal trials.
As I think the right hon. and learned Gentleman will recall, there is already provision in the Regulation of Investigatory Powers Act 2000 for limited exceptions to the prohibition of the evidential use of intercept, which is set out in section 17 of that Act. Those exceptions are enclosed proceedings before the Special Immigration Appeals Commission or the Proscribed Organisations Appeal Commission and the making of control orders under the Prevention of Terrorism Act 2005. Of course, inquests are civil, not criminal proceedings, and Chilcot was directly related to concerns about criminal proceedings. I suggest that what we are doing is consistent with the precedent that has been set in the cases of SIAC and POAC.
But surely the Secretary of State would accept that the provisions in RIPA predate the Chilcot committee, all the work that is currently being carried out and the importance attached to those safeguards. Now that we know that the Chilcot committee has reported and that officials are working through its recommendations with conscientiousness and care, the situation is different from that which pertained when RIPA was enacted. Given what is happening now, we ought to wait for the result of those investigations before legislating in this way.
The right hon. and learned Gentleman's point would be a good one if inquests were criminal proceedings, but they are not. They are civil proceedings, and there is a much stronger parallel with POAC and SIAC—I believe that he established the latter process. Precisely because RIPA preceded Chilcot, we have those precedents in section 18 of that Act.
I wish to provide Mr. Gray with reassurance about whether non-jury inquests could apply in the case of military inquests. If he looks at clause 7(2), he will see the circumstances in which a jury must sit in an inquest. They are essentially cases in which there has been a death in state custody or resulting from an act or omission of a police officer or member of a service police force, or a death
"caused by a notifiable accident, poisoning or disease."
A senior coroner has the discretion to have a jury, but those criteria apply to state custody deaths or similar circumstances. They are simply irrelevant to military deaths, which arise in quite different circumstances. That being the case, the trigger in amendment 94 could not be fulfilled. That amendment sets out that the Secretary of State may certify an investigation under various criteria, including, as stated in proposed paragraph (b), if
"the inquest will (if the investigation is not certified) be held by a senior coroner with a jury".
I can therefore provide the hon. Gentleman with the absolute assurance that he seeks.
On the central issue, I say to my right hon. Friend Frank Dobson and other hon. Members that I understand their use of the term "secret inquests", and we are certainly talking about inquests that will receive secret evidence, parts of which will be held in camera. However, it is common ground among all parties that there would have to be parts of inquests held in camera even if they were before a jury. The only part of such inquests that will be held in private, without the family being present, will be when there is protected evidence. When that takes place, counsel would be appointed to the inquest and directed by the coroner to take the responsibility of representing the family's interests and to test the evidence that could not be disclosed. I appreciate that that is second best, but the process has been used in plenty of other circumstances relatively satisfactorily.
Under the set of procedures that we have discussed, the Secretary of State certifies, and the matter then goes before a judge to determine—I stress to hon. Members that it will be for judges to decide; amendment 97 plainly anticipates the judge's holding an inquest without a jury on the established criteria and if he is satisfied that it is necessary to do that to avoid the matter's being made public or unlawfully disclosed, and the next limb anticipates an inquest with a jury. I emphasise to my hon. Friend Mr. Kidney that the central issue will not be the certificate but its effect. The certificate simply triggers the application, so it is hardly necessary to go behind it, although the learned judge will want to know the reasons for it because they will be germane to the evidence to be protected. The question then is whether there are ways in which to protect the material other than being without a jury.
Because the Secretary of State may be concerned about the need to protect the information. However, we do not believe that the Secretary of State should be the determining individual, who decides whether to dispense with a jury. I know that my right hon. Friend is sceptical about the independence of the judiciary, but, as someone who has been rolled over in judicial review after judicial review almost weekly since I became a Secretary of State 12 years ago, I believe that the courts are very independent, and on precisely the sort of issue that we considering. I remind my right hon. Friend of the excoriating judgments by the Law Lords about control orders. If the courts were a patsy, they would have said, "Fine, we'll simply accept them."
Hon. Members of all parties accept that there may be occasions when the information to be protected is such that it cannot go before a jury. The difference between Conservative Front Benchers and us is that we believe that a judge in the High Court should make that judgment. Mr. Grieve rather eccentrically takes the view that a Secretary of State should make it. Under his proposal, when the information could not be presented before a jury, it would be for a Secretary of State to establish a special inquiry under the Inquiries Act 2005.
At the risk of repetition, I should make clear what I said earlier. I believe that, if one sticks to the existing system, the likelihood of any departure from a jury's sitting in a coroner's court will be greatly lessened. That is the only reason for my saying that the existing system is better than what the Secretary of State has devised.
Hansard will show something different.
The hon. and learned Gentleman also said that, when necessary, he preferred the Inquiries Act route, whereby the Secretary of State determines whether to dispense with a jury, to the Bill. I believe that the proposal whereby any decision by a Secretary of State has to be tested before and by a judge is much less likely than his to end in juries being dispensed with. I am glad to say that on that, if on few other issues, I have the full backing of Mr. Hogg, who made it clear that the process that we are putting in place is correct.
The whole debate has been dominated by two things. One is public confidence in the verdicts of inquests, which is related to the issue of the jury. Without a jury, how can we have confidence that verdicts in such cases will not be a stitch-up, especially given the circumstances in which juries are called into being in inquests in the first place? That was the point made by John McDonnell, among others.
The second issue is about whether families are excluded from the process. Throughout his remarks, the Secretary of State never satisfied me or anyone else in the Chamber on that point. He had several goes at it, but in the end it came down to this: somebody else might, in certain circumstances, represent the family. That issue, which was raised by Frank Dobson and Mr. Gerrard among others, goes to the heart of whether what has been proposed really protects victims and their families. I am certain after hearing the debate that it does not.
Mr. Llwyd made several important points, especially about cases in his experience where the security services have been involved. He also pointed out the simple fact that the cases that we are talking about are those that involve deaths at the hands of the state. That is why we need the widest possible use of juries in such cases. That is the counterweight to what Mr. Kidney and Mr. Hogg said about cases in which there might be some nervousness about using a jury. We need to think about what those cases are. They are cases of deaths at the hands of the state in the first place.
Whenever someone says that there are cases where the jury has to be excluded, they never come up with a convincing example. The one example of a case where the process is frozen, which the hon. Member for Stafford mentioned, is one that has nothing to do with national security. However, as Mr. Dismore mentioned, in that case things seem to have gone very badly wrong legally.
The other remark from the right hon. and learned Member for Sleaford and North Hykeham that made me nervous was his assumption, which I think the Government share, that juries are inevitably leaky. If one follows the wording of what is proposed, one sees that it would mean that a judge, even bending over backwards, would be unable to allow the jury to continue in the case, because he or she would have to conclude that the protected matters would end up being made public.
The hon. Gentleman may have shared my experience, but I was trying to rack my brains to think of instances in the past where vetted juries doing espionage cases were alleged to have spilt the beans in the public domain afterwards, and I simply cannot think of any such example.
I could not think of one either. We briefly discussed vetting juries in Committee, but the Government's only reply was that the standard for vetting juries for espionage trials and terrorist cases would be too low for such inquests. I find that just incomprehensible.
In the end, the debate comes down to the point that the hon. Member for Hendon made. The crucial question is this: if the process now proposed by the Government had been in place in the past 10 years, would it have affected important inquests such as the de Menezes inquest? Would the Government have asked for the jury to be removed? I have no doubt that they would have asked for that and that they would have put in place that certification. The Government's only defence is that perhaps the Secretary of State would have been found to be mistaken by the judge and perhaps the judge would have applied the words of the statute in a way that would not be justified and overturned the Secretary of State's judgment. That seems highly unlikely, given what is being proposed this evening and—this is the point that the hon. Member for Walthamstow made—given that the only arguments and evidence before the judge at that point would be those of the Government. We are talking not just about national security, but about that broad range of items, which are not those about which the Executive would have better knowledge than anybody else.
On the question of relations with other countries, what does the hon. Gentleman think would be the definition of a good relationship? Would it be a question of whether the country was a dictatorship or a democracy, or whether it fulfilled all international requirements? Or would it simply come down to issues such as arms sales and the murder of British people in those countries?
All experience shows that it is the latter. It would be up to the Secretary of State to decide that on the certificate, and there is no way of getting behind that certificate in court.
There is broad scope for the abuse of these powers. The question that the hon. Member for Hendon asked needs to be answered in the affirmative: yes, it would have made a difference if these powers had existed sooner; and, yes, it would have resulted in more inquests being held without juries. As Mr. Shepherd said, the only conclusion that one can draw is that we must excise clause 11 from the Bill. There might be better ways forward, and there might be other ways of doing this. We do not know what the Government might propose if we were to excise the clause, but excise it we must, in order to allow further and better debate on this subject in another place. I therefore beg to ask leave to withdraw the new clause, although I wish to press amendment 2 to a vote.
Clause, by leave, withdrawn.