Information for Requests

Bill Presented – in the House of Commons at 5:03 pm on 9th November 2009.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice 5:03 pm, 9th November 2009

I beg to move, That this House
disagrees with Lords amendment 1.

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Photo of Michael Lord Michael Lord Second Deputy Chairman of Ways and Means

With this it will be convenient to discuss the following: Lords amendment 2, and Government motion to disagree.

Lords amendment 216, and Government motion to disagree, and amendments (a) and (b) in lieu.

Lords amendments 112 and 127.

Lords amendment 128, and amendment (a).

Lords amendment 129, and amendment (a).

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

This group of amendments concerns an extremely important issue. It relates to the question of whether an investigation into the cause of death can take place within the coroners system, and in compliance with article 2 of the European convention on human rights, in circumstances involving highly sensitive information, such as intercept material, which cannot be made public. It is only in a very small number of inquests-fewer than 2 per cent. of all inquests-that the coroner has to sit with a jury. Those are often the most controversial cases, where someone has died potentially at the hands of the state. Of that 2 per cent., there are only a tiny number where article 2 is engaged and there is sensitive material that should not be publicly disclosed.

I should say right at the beginning that every effort is made by this Government-and will be by any Government and by law enforcement agencies-to push for the standard coronial system with a jury in this kind of case to ensure that, if humanly possible, it is a normal coroner's inquest with a jury that holds the investigation. There was some suggestion with the de Menezes case that it would not be possible, because of the sensitive material, to hold such an inquest, but in the event it was, as ways round the problems were found. That was to the general approbation of everybody-not least and above all to the families and the community concerned. There is no intention whatever-by the agencies, by the police, by the Government, by the Law Officers-that any provisions in this Bill should ever be used as an alternative to a normal inquest where such a normal inquest can, by stretching the envelope as far as possible, be used. Where intercepted evidence is available, every effort is made to gist that material and if the coroner is satisfied that the gist provides a fair summary of the evidence, that is regarded as satisfactory.

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Photo of Graham Allen Graham Allen Labour, Nottingham North

For those of us who are not distinguished lawyers and who come to the debate as lay people, will the Secretary of State please tell us what arrangements exist so that highly sensitive information can be discussed or divulged in camera? Is there not already provision that would cover most of the cases that he refers to?

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

In a sense, my hon. Friend makes my point. There is potential for any tribunal-with a small "t"-to go into camera. In many cases, that provides the answer. For sure, there are long-established rules so that in cases where human intelligence is involved evidence can be given by the staff of the security and intelligence agencies from behind screens-or otherwise their identities can be withheld. In most cases, that is satisfactory. There is, however, a tiny number of cases-there is one we know of at the moment; only one-for which the central evidence arises from intercept. There is a grave anxiety-this is a central issue in the whole question of the disclosure of intercept-that if that evidence were made available as intercept transcriptions in closed court, it would have to be made available to those present, including many who had not been cleared for these purposes.

This issue was examined in great detail by the Chilcot inquiry. As I will explain, it came forward with nine conditions in which intercept material in our environment -not in other people's environments-could be made available to the court. I am glad to see in their places today Mr. Howard and Sir Alan Beith, both of whom sat on the Chilcot inquiry and the subsequent advisory panel, so they know a huge amount about this issue.

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Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

This assessment must have been made so will the Secretary of State please tell us how many inquests-shall we say in the last five years-he estimates would have been affected by this Executive intervention?

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

As far as I know-if I am wrong, I will try to correct the record before the debate is concluded-there is one outstanding case, the Azelle Rodney case, which goes back four years. We are dealing with a tiny number of cases, but the problem is that unless we find a way through this problem, there will be no satisfactory investigation into the cause of death in an equivalent case -I make no prejudicial remarks about that particular case.

The original proposals for so-called secret inquests came from my right hon. Friend John Reid, when he was Home Secretary. They did not find favour and were withdrawn, as it was the Secretary of State deciding on whether an inquest should be held without a coroner. It was thought inappropriate-I understand the arguments and agree with them-for the decision in such a sensitive matter to be made by a Home Secretary alone. After much consideration and discussion, I proposed a different scheme that found its way into clause 12 of the Bill as it left the House: a Home Secretary would form a view that a non-jury inquest was required, and the Lord Chief Justice would nominate a senior judge to hear it, but a prior hearing by that judge would determine, on application by the Secretary of State and on hearing the other parties, whether to accede to that application on clear criteria.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

Will the Secretary of State also confirm that clause 13, as originally drafted, allowed the use of intercept evidence?

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

Section 18 of the Regulation of Investigatory Powers Act 2000 also allows the use of intercept evidence in certain cases, but the difference is that in neither scheme was intercept evidence to be made available to a wide variety of parties in the courts, or to a jury. We are not digging in-we never have-and saying that in no circumstances should intercept evidence be available to a court, prior to the Chilcot recommendations being implemented. I was the Home Secretary who introduced, in 1999-2000, the Regulation of Investigatory Powers Act. The central issue is how to ensure that such sensitive material, and all the techniques behind it, are protected.

Everybody who has been in the position-as have I, the right hon. and learned Member for Folkestone and Hythe, and the right hon. Member for Berwick-upon-Tweed as a member of the Chilcot committee and the Intelligence and Security Committee-of operating or supervising the system is alive to the dangers and invites others to take on trust the nature of the dangers. I hope that colleagues will accept, from a wide variety of sources, and from right hon. Members who do not necessarily agree on everything, that a serious issue needs to be addressed. If I felt otherwise, I would say so, as would the other right hon. Gentlemen involved.

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Photo of Alan Beith Alan Beith Chair, Justice Committee

There is another complication to the problem, which is not just awareness of the dangers, but certainty that a particular step will not necessarily lead to others that expose the dangers. Although it might prove entirely reasonable to use intercept in particular circumstances, the rules to make that possible do not have to create a situation in which intercept is used in circumstances in which that would be dangerous to national security.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I accept that, and in our debates about intercept some people have taken the view that we should just make it available. The Chilcot committee looked in some detail at the systems in other countries, but our system is much more adversarial, and the rules relating to the disclosure of unused material, and the police techniques behind it, are much tougher in most cases than those in other jurisdictions. That is fundamental to the problem that Chilcot was trying to deal with.

We have to find some way of achieving a solution when there has been a death at the hands of the state and article 2 is involved, as are the requirements that, in every other circumstance, a jury inquest would take place. There can be a satisfactory finding of fact about the cause of death. There is a fundamental difference between such an investigation into a death, and any investigation leading to a criminal trial. In extremis-this has happened-the prosecution have the discretion to withdraw a prosecution, as they can balance the public interest if they think that they are being required to disclose material that would damage national security. In the context of an inquest or an investigation of a death under article 2, that is not an option, because it is the death that triggers investigation in the circumstances. There is no discretion. The investigation must be held. The only issue before the House-and it is an important one-is what the environment of that investigation should be.

When clause 12 failed to find favour, I announced, along with my right hon. Friend the Home Secretary, that as an alternative he would use the provisions in the Inquiries Act 2005 to establish an inquiry. That had been suggested to us informally as an alternative. Provisions introduced in the other place make it clear that the matters before any such inquiry must be those matters which would have been before any inquest, as an irreducible minimum. There is also provision, in schedule 1, for the inquest itself to be formally adjourned while an inquiry takes place, and general provision for it to be resumed. In some cases it may be decided that there is no need for it, while in other cases it will be resumed.

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Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Energy and Climate Change), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice) 5:15 pm, 9th November 2009

In earlier debates, I put to the Secretary of State the possibility of introducing public interest immunity certificates into the whole scenario, thereby excluding the detail of intercept evidence. To this day I am not sure what the explanation is, whether it holds good, and whether it could apply. Will the Secretary of State please address that point?

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

Public interest immunity certificates are used to withhold from a jury information that would otherwise be disclosable, but not in a case in which it could lead to an injustice. The right hon. and learned Member for Folkestone and Hythe signed plenty of PIIs, and I signed plenty of them both as Home Secretary and as Foreign Secretary. The difficulty in this instance is that if we leave it to a jury to consider the matter-as even those who support the idea, such as Lady Miller and certain interest groups outside, will accept-the finder of fact, the jury in this case, will be expected to find the facts when some of the key facts are being withheld. Surely that is far less just than allowing a senior judge of High Court status or above to examine the issue.

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Photo of Andrew Dismore Andrew Dismore Labour, Hendon

Schedule 1(3)(2) to the Inquiries Act states:

"The coroner need not suspend the investigation if there appears to be an exceptional reason for not doing so."

Will my right hon. Friend confirm that an exceptional reason might be that the inquiry did not comply with article 2 of the European convention on human rights? If a coroner took the view that it did not, would he be within his rights if he refused to suspend the investigation, and would my right hon. Friend support him in that decision?

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

With great respect to my hon. Friend, I think that the idea of inquiries is that they should comply with article 2. There would be scarcely any reason for proceeding if they did not. I shall say more about this when I sum up the debate, but if that were the case, the matter would fall to be resolved in the normal way, and it might well be for the court to decide whether the inquiry was compliant with article 2.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

As I shall make clear in a moment, I am conscious that the Secretary of State has a real problem, and that it is for us in the House to try to help rather than hinder him. Will he confirm, however, that there may already be all sorts of trials-inquests and, indeed, criminal trials- that might be helped by the admissibility of intercept evidence?

Let us be clear about this. The category of case to which the Secretary of State is referring is not a category of case in which intercept evidence might be available that would help but, I assume, a category of case in which intercept evidence goes to the very heart of the decision of an inquest or inquiry. That already narrows it down considerably.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

Yes, it does. Typically, the intelligence agencies or the police have available to them intercept evidence which is highly incriminatory. That is, indeed, the argument in its favour, and the reason for its use in cases abroad. It has been judged to be in the wider public interest not to make it available up to now. Chilcot has come forward with his nine conditions, but on the whole we manage to find other means of ensuring that evidence is found.

I should just point out to the House-this is not remotely a theological issue-that it has long been accepted that evidence obtained through recordings, such as hidden microphones, is adducible in court, and that is often used. The point here is that the compromise of techniques is far less. The balance in respect of public interest lies in favour of disclosure. We therefore put forward these proposals, and we sought to strengthen them in the interests of the parties not least by ensuring that a senior judge should be appointed to hold such inquiries.

A series of amendments were put forward in the other place, which I am inviting the House to reject today. They propose that this evidence should be made available to a normal inquest court, save in certain very limited circumstances where the court has a power to withhold it from the inquest jury. The difficulty here is that under the amendments the coroner could disclose the material to the interested parties even if that could cause very considerable damage to other parties. I say with respect that this is where I identify the central flaw in the argument of Baroness Miller and her supporters, such as Inquest, Liberty and Justice, with whom I have talked and for whom I have great respect-and my clause 12 is an attempt to square this circle. Those three supporters have said that

"it will remain possible for a judge conducting an investigation to ban or restrict the jury's or public's access to material that would be contrary to the interests of national security."

If that is so, we return to the central problem here: in these cases, where the evidence from the intercept is key to the cause of death-because if it were not, it would be possible to offer other information-we are expecting juries to come to a decision based on facts that have not been disclosed to them. Baroness Miller inadvertently made the same admission herself. On Report, she said of the Chilcot inquiry conditions that

"it must be possible for the Government and all their advisers to work out a way to put those nine conditions into the Bill in such a way...that they can stay within the inquest system and the conditions can be fulfilled."-[ Hansard, House of Lords, 21 October 2009; Vol. 713, c. 733.]

I have two things to say about that. First, some very assiduous and imaginative individuals-including two in this House-are sitting on the advisory panel on the implementation of Chilcot, and achieving this end is very difficult. Secondly, I say, with respect to Baroness Miller, that I do not believe that she had read Chilcot's nine conditions. The second of them, for example, says:

"Intercepted material originating from the intelligence agencies shall not be disclosed beyond cleared judges, prosecutors, or special (defence) advocates, except in a form agreed by the originator."

There are various other restrictions on disclosure, too, so we are back in the same box. In a criminal trial, even where there are PIIs, it is fundamental that the trial judge ensures that there is a fair trial in every circumstance, and if he thinks there will not be a fair trial, including in respect of taking account of material he has seen under the PII, he can abort the trial. I say again that that is not a possibility in an inquest, which is an investigation into a death that has taken place.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

Is the Secretary of State saying the following? On the one side, there is some risk-although presumably a very remote one-that a coronial judge might reveal information to the parties the revelation of which would be damaging to a party, or that a jury that contains people who are not secure might receive certain information. On the other side, there is a risk that sometimes information will not be disclosed to the jury which it would need to make a perfect decision on the facts. Surely the problem is that that is making the best the enemy of the good. There is no perfect solution to this, but surely a system that allows, in general, the disclosure of intercept evidence will, in general, produce the best results.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

The issue of whether and, if so, how intercept evidence can be used in our trial system has exercised senior politicians and senior members of the judiciary for a long time. It is not for the want of trying that we have yet, finally, to pin down a solution. That is the purpose of Chilcot's report and we have got closer to a solution through it than we have ever got before. I am extremely grateful to those who have been burning their brains out on how to ensure that we arrive at the correct solution.

However, we cannot suddenly say, in a rather blasé way, that we are just going to adopt Chilcot's approach for coroners' inquests, without having a proper scheme for every other circumstance. Precisely because of the fact that there is no discretion about whether or not to proceed with an investigation into a death whereas there is that long-stop protection of discontinuing a prosecution in a criminal trial, we have to ensure that the inquests system is more robust than any other-that is so by definition, because it has to be used in every case where there is a relevant case; there is no alternative but to hold an investigation. That is the point I make. I should say, as I was about to say in a moment, that what I have done, and so my right hon. Friend the Home Secretary has to have done, is ask the advisory panel on intercept evidence, which includes hon. Members here, whether they will particularly examine the issue of evidence in coronial matters, because we need to find a specific way forward.

I wish to illustrate the point some more for the benefit of the House. Amendment 2, which I am proposing to delete, includes a subsection that states:

"A coronial judge shall not order a disclosure...except where the judge is satisfied that the circumstances of the case make the disclosure necessary to enable the matters required to be ascertained by the investigation to be ascertained."

It does not say, "Save where they believe that national security considerations apply." That simply makes my point; if this material is necessary for the finders of fact-the jury-it will go to the finders of fact. The amendment provides absolutely no protection for national security, notwithstanding the fact that the outside pressure groups have accepted that there should be, as has Baroness Miller, in this kind of throwaway line.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I hope that I am not intervening at the wrong moment, but the Secretary of State may have noticed from the amendments that have been tabled that there appears to be an acceptance by those who have tabled amendments in lieu that the principle of the problem that he identifies about the use of intercept evidence may well be widely accepted across the House. The question then arises: what safeguards can the Government offer that the inquiry process will not be used in a way that would undermine the coronial process and be seen to be unfair? On that, may I simply remind him that in Committee, Lord Kingsland-before he died-provided a good steer as to the sort of protections that ought to be in the inquiry process to ensure that it would command confidence? The Government have not adopted all of those. The Secretary of State may comment about this in a moment, but I should say that they might go to the heart of being able to resolve this issue. At the moment, the problem we face is that the situation remains unsatisfactory and that confidence in the inquiry process as it appears in the Bill is not sufficient.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I have been up hill and down dale on this, as I know others have. I thought that clause 12 was a way of resolving this, because it would have placed in the hands of the senior judge the decision as to whether or not to proceed with a certain investigation, they would then have run the investigation and it would have been within the coronial system. That was parodied as a secret inquest, and we have now gone down the route of an inquiry under the Inquiries Act 2005. We have sought to ensure that only a senior judge can sit on this-other clear criteria are set down.

This matter has gone round and round for two years now and I am certainly ready to promise the House-Members will have to take it on trust, but there is no reason not to trust me-that the inquiry will be used only in exceptional circumstances. The facts speak for themselves-there is only one extant case in which it is likely to be used, and that is a very rare case. Secondly, I will ensure that my right hon. Friend the Home Secretary and I bring forward a protocol to set out the circumstances in which such an inquiry would take place. They would be very limited, too.

It might be useful to deal with amendment (a), tabled by Mr. Grieve, to Lords amendment 128. It suggests that any appointment by the Lord Chancellor of a senior judge should be made with that judge's consent. First, there could and would be no appointment without the consent of the Lord Chief Justice. It is important that I should say that, and it goes without saying that I have to ask the Lord Chief Justice from time to time to nominate a judge; if he or she were to decide that no judge were to be nominated that would be the end of the matter. That power is quite important. The Lord Chief Justice can speak for himself, but I suggest that he would wish to be satisfied about the conditions under which any inquiry were to take place and about what the level of judicial discretion would be for such an inquiry before he made an appointment.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I shall just finish my comments on Lords amendment 128, if I may. I shall then give way to my hon. and learned Friend and, afterwards, I shall finish my speech, as time is limited.

The hon. and learned Member for Beaconsfield suggests that the judge should consent to the Lord Chancellor's request, and I understand exactly why. If it is about agreeing to the appointment qua appointment, I can say that, with respect, that ought to be done by the Lord Chief Justice. Perhaps we should have put that in the Bill. We have not, but I give an absolute undertaking on that understanding and anyway, in practice, the Lord Chief Justice has a veto, quite properly, over whether somebody is or is not appointed. Of course he does. He might just say, "I'm sorry, there isn't anybody available," or, "I'm sorry, I will not appoint anybody because this is not an appropriate article 2-compliant tribunal and the learned judge will be compromised."

As the hon. and learned Gentleman would expect, I have looked carefully into whether I could accept his amendment. At first blush, it appears rather similar to the scheme that was in clause 11 of blessed memory, on page 7 of the Bill as it left the Commons, which spelled out that the judge would have to make a decision, based on certain criteria, about whether the application from the Secretary of State was to be accepted.

To some extent, my objection is technical but I promise the hon. and learned Gentleman that it is serious. We are at a late stage in the proceedings on the Bill, and although I had a lovely scheme in mind, there were no takers for it, so if the only proviso in the Bill is that the consent of the judge is required, he or she must work out how to exercise that consent. He or she cannot just say, "Yes, I'm available. I'll do it," but will have to say, "I will have to hold a hearing."

Another matter to consider is which criteria should be used. Clear criteria were set down in my proposals, but now there is only the hon. and learned Gentleman's amendment to consider. He could simply have pulled out the old clause 11(6) and plonked those criteria in. It is a bit late to do so, although I am not trying to make a point about that. Just so the hon. and learned Gentleman knows, the alternative I considered was whether there was any provision for the court to make rules, but we are not talking about a criminal case, so the criminal rules committee cannot make such rules. There does not appear to be any appropriate rule-making power.

I hope the hon. and learned Gentleman will accept that the point about consent will be dealt with by the clear undertakings I have given in respect of the Lord Chief Justice, but that for practical reasons it is not really appropriate to accept the amendment.

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Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

Does my right hon. Friend not understand that it is a question of scale? In any jury system there are always problems with public interest immunity-there always have been-and we get round them by a mixture of evidential routes that has served us extremely well. We now have a problem in one case-just one case in five years-and to rectify that evidential problem the Government propose to hand a massive new power to the Executive. The disproportionate remedy in the circumstances is obvious to everybody. I know there is judicial oversight, but my right hon. Friend will forgive me for saying that he adulates the higher judiciary only when they are being used as a mechanism to withdraw jury trial. Otherwise, he is rather more critical of them and on occasion has described them both as unelected and unregulated and in various other ways. To say that there is a higher judicial role is not an adequate response. Does my right hon. Friend not understand that that is what concerns most of us in the House?

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

My hon. and learned Friend is an infinitely more experienced criminal practitioner than ever I was-I say that seriously, without condescension. However, there is a very big difference. In a criminal case, the trial judge can say, "I am not going to proceed, because it would be unjust", or the prosecution can say, "We are about to have crucial evidence that is sensitive and compromised. We will withdraw the prosecution", and sometimes does so, because there is no option. But with great respect, there will not be a massive new power in the hands of the state; it would be used extremely sparingly.

I feel extremely frustrated, because my scheme was to give the decision to a senior High Court judge, but that did not find favour. We tried plan A. That did not work. We tried plan B and that did not work, so now we have plan C. To those who say they do not like the idea of non-jury inquests, I say that I do not like the idea either, but I am trying to square an extraordinarily difficult circle, and I have not yet found a way of doing so except by a route similar to the proposal.

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Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

The Lord Chancellor has told us that he is trying to square an extraordinarily difficult circle. He has indicated that he has a problem and the Opposition spokesperson has indicated that he acknowledges that the Lord Chancellor has a problem, and we have heard about the problems of the intelligence services. Does the Lord Chancellor accept that it is important that the House focuses on the real people who may have a problem, who could be a grieving, and potentially aggrieved, family in the future? It could be a perturbed public, who are concerned and suspicious about the circumstances of a death. Is he not at least a little bit uncomfortable that on a day when the Prime Minister is off in Berlin, celebrating the end of the Berlin wall, and the end of control and secrecy and all it represented, the Government are trying to put such measures through the House?

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

None of us is comfortable about departing in any case from jury inquests. I hope my hon. Friend will concede that none of us would be going down that route unless we felt that it was absolutely necessary, but as I said, Inquest, Justice and other groups accept that there is material that should be kept from an inquest jury. It may be absolutely central to the case, and the investigation still has to proceed. Baroness Miller accepts that material should be kept back. She referred to the Chilcot criteria, although the withholding would be rather more extensive than she anticipated. In any event, we cannot do it within the scope of the Bill.

The issue is whether we do or do not come up with a scheme that allows an article 2-compliant investigation to take place, where the finder of fact has access to all the relevant facts. The alternative that has been put to the House is a jury inquest from which material would be withheld, but, I suggest, on unsatisfactory grounds. That is not a way of reaching at the truth for the benefit of the parties-above all the aggrieved relatives. That is our overwhelming concern.

In conclusion, I sense from the sombre atmosphere in the House that everybody is addressing themselves to the issue. Even at this late stage, I invite the House to acknowledge that the issues that I have tried to deal with are extremely difficult. They will, I repeat, arise only in rare exceptions. It is in the interest of all of us that those exceptions are kept to a minimum, but occasionally they will arise. The scheme that we propose is a way of achieving justice, not least for the aggrieved parties.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I shall be brief. I repeat what I said: I acknowledge that the Government have a problem. In the other place, amendments were tabled by Baroness Miller. As the Secretary of State knows from my earlier remarks, and as is implicit in the amendments tabled in lieu, there is an acknowledgement that to allow intercept evidence would be very difficult at this stage.

My party is on the record on countless occasions as wishing to see intercept evidence available in criminal trials and at inquests. That is desirable and it is a shift that needs to take place. I regret that the movement on this is so slow. We subscribed to the Chilcot process so that it could be reviewed, and the Chilcot process is not yet complete. Therefore I acknowledge that to ride a coach and horses through that would be unsatisfactory, even though it is an end that I would wish to see, properly arrived at.

The question then is how we solve the conundrum. The Secretary of State is right that the Bill has been up hill and down dale. He wanted to have a provision for secret inquests that could hear evidence secretly. He received universal opprobrium for that, partly because it debased the entire coronial system. As he will recollect, when the matter came to be discussed on Report, I suggested to him that it would be better if we called a spade a spade, and if we could not have an inquest in proper form, it would be better to look at the inquiry route, which already existed, as an alternative. At least the Secretary of State or some other Minister would have to explain to the House why an inquest was impossible, answer the hostile questioning of the House and enable Members to express a view, and then and only then, with probably a great deal of public debate surrounding the matter, would an inquiry go ahead.

It is also true, as I hope I made clear on Report, that when the matter went to the Lords in Committee, Lord Kingsland argued that if an inquiry route were to be pursued where normally an inquest would take place, there were a great many flaws in the inquiry procedure. He tried to rectify that. It was virtually the last speech he ever made. The Government accepted some of what he suggested, including the need for a High Court judge, and some other safeguards concerning the scope of the inquiry. What the Government did not do was to listen to Lord Kingsland's calls that that had to be a judicial process, not an administrative process.

The Secretary of State highlighted my amendment (a) to amendment 128, and I am the first to accept that it is probably desperately inadequate. The procedures that we have in the House are now so barmy-there is no other way to describe them-that I had to draft the amendment even before the Bill had come back from the Lords. All I could do, with the help of the Clerk in charge of the legislation, and with the anxiety that as an amendment in lieu, anything more would probably not be accepted, was to find some way of bringing back to the House the issue of judicial control. Imperfect though the amendment may be, its purpose was simply to give the House the opportunity to say, "Perhaps if we have to have an inquiry, there should be a judicial lock on it." Interestingly, that is exactly what the Secretary of State hinted he was minded to grant in the original draft of clause 11(6). I am a little mystified about why he did not pursue the road that Lord Kingsland identified for him, because, if the Secretary of State had, we would not have ended up with the situation that we had in the House of Lords on Report, when everything went in all directions. I hope that I am not being unfair, but the anxiety that their lordships clearly manifested finally expressed itself in allowing intercept evidence.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice 5:45 pm, 9th November 2009

I did not intend any criticism of the hon. and learned Gentleman's drafting of his amendment in lieu. As he knows, I spent 18 years in opposition, 17 of them as an Opposition spokesman for one thing or another, and I used to have to draft such amendments. I hope, however, that I have given him a lot of comfort-albeit not in the Bill-about the practice, which will be inevitable, in circumstances where there is an appointment. Of course I accept that the noble and much lamented Lord Kingsland was searching constructively for a solution, and we were trying to find one, but it is also fair to say that some who have objected at each stage to what we have tried to do, not including the hon. and learned Gentleman at all, will object in any circumstances to there not being an inquest jury in full possession of the facts. That is the central difficulty with which we are trying to grapple.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

I appreciate the Secretary of State's comments, but I shall bring my remarks to a close.

It seems to me that the amendment in lieu tabled by Mr. Dismore, which the Secretary of State has not signed, but which would leave out paragraphs (3) and (8) from schedule 1, has this great merit: it would ensure that the Bill went back to the other place, where the issues that I have just raised could be addressed. If we go along the route that the Secretary of State has advocated, and we do not support the amendment, the Bill will effectively go on to the statute book in its present form. That would be unsatisfactory, so with that in mind I intend to support the amendment in the name of that hon. Gentleman and those who have signed it.

We may be at a late stage, but just because we happen to be discussing it on the Monday before Parliament is due to prorogue on the Thursday, we should not suddenly suspend our critical faculties. We are considering Lords amendments, and, if we do not wish the issue to be dropped completely, the proper course of action will be to ensure that it stays in play, so that when the Bill goes back to the other place the Government can take on board what has been said here and, I dare say, what will be said there and come up with a constructive solution that respects its concerns as well as those of Members from all parts of this House.

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Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I shall speak to the amendments in lieu that are in my name and those of other Members who have signed them on a cross-party basis. I, like Mr. Grieve, accept that there is a problem with intercept evidence, and it needs a comprehensive solution. In trying to table sensible amendments in lieu, I was handicapped by the procedures of the House, which meant that the only possibility was to propose the removal of paragraphs (3) and (8) from schedule 1.

On 30 April 2005, Azelle Rodney was in the rear seat of a car in Hale lane, Edgware, in my constituency. A police officer fired eight shots at the car, six of which hit Rodney, killing him. There is no evidence that Rodney was holding a gun when he was shot, although the other occupants were successfully prosecuted, firearms having been found in the vehicle. The suggestion was that it was part of a drugs operation, not, I have to say, a national security issue, and that covert surveillance was used.

The Independent Police Complaints Commission report has not been published, but it recommended no action. Four-and-a-half years on, there has been no inquest and no explanation, and Azelle Rodney's mother, Susan Alexander, wants, needs and has a right to know what happened to her son. So do constituents, because they were made fearful by the incident having taken place in broad daylight at a busy junction. They, too, would like to know what was going on.

I was pleased when my right hon. Friend the Justice Secretary announced that the secret inquest proposals in the Bill were to be dropped, but I am disappointed that they have been replaced by secret inquiries. This debate seems to be something of a "Groundhog Day" in terms of the issues that we may have to cover. Schedule 1(3), which my amendment would remove, provides for the suspension of inquests

"on the ground that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005".

However, there are no criteria or grounds for superseding an inquest specified in the Bill. On that basis, the proposals before us are worse than those that were withdrawn for secret inquests.

Article 2 of the European convention on human rights provides a positive obligation to provide an adequate and effective investigation when individuals are killed as a result of the use of force, particularly where the death is a result of the use of force by state agents. The person conducting the investigation must be independent of those implicated in the events, there has to be a sufficient element of public scrutiny to secure accountability in practice as well as in theory, and the investigation must involve the next of kin to the extent necessary to protect their legitimate interests.

According to the schedule, the coroner may not suspend the inquest if there is an exceptional reason for not doing so. In an intervention, I asked my right hon. Friend whether, if the investigation was not going to be article 2 compliant, that would justify the coroner's refusal and whether he would uphold the coroner in making that decision. I was given a rather ambivalent answer. If the procedure was going to be article 2 compliant in the first place, one would not need to use the provision-it is only the implication that something would be missing from the inquest that puts matters in the article 2 questionability arena. If the coroner considers that it is an exceptional circumstance, then presumably he should be able to refuse the request. I canvassed this issue in correspondence on behalf of the Joint Committee on Human Rights with my right hon. and learned Friend the Leader of the House, who was then Minister of State at the Department for Constitutional Affairs. She replied on 22 January 2007:

"the Government does consider that a reasonable belief that the inquiry proposed by the Lord Chancellor would not meet Article 2 requirements because of its scope, would be an exceptional reason which would justify a coroner's refusal to suspend an investigation."

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I am listening to my hon. Friend with care. Aside from the inadvertent impact that the amendments would have, although I understand the problems about drafting, how would he propose to address the central question at issue, which is how one would deal with highly sensitive intercept material where some of the facts of the intercept-the techniques behind it, as Sir Alan Beith put it-should not, for very good reasons, be disclosed to the inquest jury?

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Photo of Andrew Dismore Andrew Dismore Labour, Hendon

We run the risk of rehearsing debates that we had before on secret inquests. The starting point is that an inquest is not intended to prove something beyond all reasonable doubt. Public interest immunity applies to inquests, subject to judicial review by either side, and the Government can persuade the coroner to withhold sensitive material, as happened and was upheld in the Jordan and McCann cases, for example. My right hon. Friend has already mentioned gisting. Such restrictions are compatible, in principle, with an article 2 compliant inquiry. My concern is that what is being proposed is a secret inquiry at the behest of the Executive.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I cannot allow my hon. Friend to gloss over this issue. There is no question of these proceedings being secret. Most of it would be entirely public, although of course part would be secret. What he says is all true. However, what if we are in a situation, which appears to be so in the case of Azelle Rodney, where these devices are not possible? They were, happily, possible in the case of Charles de Menezes, but what if they are not? What do we do then?

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Photo of Andrew Dismore Andrew Dismore Labour, Hendon

As I have indicated, there are other options. We simply do not know enough about the Rodney case to answer that question; that is part of the problem.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I am sorry, but I must press my hon. Friend. He is coming to some clear conclusions about one option, on the basis of the Rodney case, but the moment I put to him the heart of the issue, he says that we do not know enough about it, although we have to make a decision about it in the next week. I suggest that he is moving away from the central issue. Whenever I put it to him, "This is the heart of the issue-what would you do?", he says that it would not arise very often. It does indeed not arise very often-it is very rare-but when it does, what would he do?

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Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I think my right hon. Friend is putting a false prospectus before the House in this respect. My main concern is to ensure that there is an article 2 compliant investigation. I have given indications of how that can be achieved in these circumstances; it may well be that there are other ways round it. The hon. and learned Member for Beaconsfield has given my right hon. Friend a way forward by saying that if the amendments in lieu are accepted, the Bill could go back to the Lords with some reassurances to try to deal with some of these problems.

This system has operated before, in Northern Ireland. British Irish Rights Watch has written to Members to say:

"We have monitored the use of the Inquiries Act in Northern Ireland and have found it lacking in its ability to deliver truth and justice to the bereaved, build confidence in the rule of law and to comply with the UK's human rights obligations."

So this may not just be a one-off, because it has happened before in Northern Ireland on several occasions, and it has been shown not to have worked in terms of providing article 2 compliance and building confidence in the rule of law.

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Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

In relation to the experience of inquiries under the Inquiries Act 2005 in Northern Ireland, were not some of the most critical spokespersons in relation to how those inquiries worked Government Ministers themselves?

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Photo of Andrew Dismore Andrew Dismore Labour, Hendon

My hon. Friend knows far more about Northern Ireland than I do, and I would certainly pray in aid his intervention in my argument.

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Photo of Jennifer Willott Jennifer Willott Shadow Secretary of State

So far there has been only one case to which this relates-the one that the hon. Gentleman mentioned involving his constituent-and people have had to find their way through the system to be able to hold inquests in all the other cases. Does he share my concern that if there were an opt-out, we might find that under these proposals a larger number of cases were being held in secret?

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Photo of Andrew Dismore Andrew Dismore Labour, Hendon

That is a real fear. My right hon. Friend rightly said that the de Menezes case was dealt with under the inquest procedure. That is because there was no other way of dealing with it. If these arrangements had been available, perhaps the de Menezes case might not have seen the light of day in the same way- similarly with the Dyson case, which dealt with depleted uranium victims from the first Gulf war, or the Mubarak case, where the Government resisted tooth and nail proper inquiries into the death of that young man in Feltham young offenders institution.

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Photo of Frank Dobson Frank Dobson Labour, Holborn and St Pancras

My hon. Friend is a lawyer and understands these things rather better than I do. Does he share the concern and puzzlement of quite a few people that in the de Menezes case, where some of the evidence was clearly related to national security, the existing law worked, whereas in the Azelle Rodney case, where we are told that national security is not at stake, we are also told that there is something so deadly secret that it cannot be disclosed? We should bear it in mind that we were told, not on the Floor of the House but by Ministers, that there was no chance of an inquest in the de Menezes case unless we changed the law-but we did not change the law, there was an inquest, and it was carried out quite satisfactorily.

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Photo of Andrew Dismore Andrew Dismore Labour, Hendon

My right hon. Friend makes his point. The Rodney case was a police operation to try to bust a drug gang. It was a very dangerous gang by the sound of it-firearms were involved-but it was not an issue of national security in terms of intercept evidence.

Given the way that the Bill is currently phrased, there will be secret inquiries at the behest of the Executive. The Executive will set the terms of reference, the Minister will choose the judge, the Minister or the judge can restrict attendance at the inquest, the Minister or the judge can restrict the disclosure or publication of evidence or documents, the Minister can redact reports and recommendations at the end of the inquiry, and the Minister can suspend the inquiry merely on the grounds that it is in the public interest to do so. That is far more broad and generous to the Secretary of State and to Ministers than the original super-inquest proposals were. That is why I am worried that there are no safeguards in the Bill that deal with this issue.

Similarly, if the inquest is resumed after the inquiry, the findings of the inquest are not allowed to be inconsistent with the outcome of the public inquiry, even if the jury comes to that conclusion. So if a judge is conducting a public inquiry and the inquest is later resumed at the behest of the coroner, the jury is not allowed to make a certain finding even if that is where the facts take it. Secret inquests are being replaced by the prospect of secret inquiries, which will not be adequate and effective investigations. They will not be independent or provide public scrutiny, and they will not involve the next of kin in the way that they should.

In the 16th report of the Joint Committee on Human Rights, we particularly considered the use of the 2005 Act and came to the conclusion that

"any Inquiries Act 2005 inquiry specifically designed to circumvent an inquest, in order to meet the Government's concerns about disclosure of sensitive information would raise the same or similar issues as Clauses 11-12"- the inquest provisions-

"about the independence and effectiveness of that inquiry for the purposes of Article 2".

The current proposals will not give closure to relatives or create public confidence that lessons have been learned.

Are families expected to take seriously a secret inquiry chair's findings as to what happened to their loved one? It is sometimes difficult enough under the existing open arrangement to convince them that justice has been done. Are the public expected to accept the findings of a secret inquiry? We have seen the reaction that there has been to recent inquiries-the public have simply said that they have been whitewashes. That would happen particularly if reports were redacted and the family and pubic excluded from hearings or from seeing documentary or other evidence. The secret inquiries will cover exactly the sort of cases that should be held in the open-those in which the state is potentially implicated and independence is essential.

Amendment (a) in lieu is a consequential amendment to allow for the suspension of a normal inquiry, for example into a big rail accident, in which there will be none of the implications that I have mentioned. The proposals in the Bill cannot be allowed to become part of our law. We have to provide a proper, article 2 compliant process for relatives and the public.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice 6:00 pm, 9th November 2009

I shall deal first with the amendments tabled by Mr. Dismore, which I support, and then with the Government motion to disagree to the Lords amendment introduced by my noble Friend Baroness Miller.

I have tried to emphasise throughout the debates on this part of the Bill that the question is not whether there are circumstances in which certain things have to be heard out of the public gaze-for example, when important matters of national security arise in the course of a coronial investigation-but whether there should be a jury in important cases of deaths at the hands of state officials. That is the central question, and it is why the hon. Gentleman has to be right that it is no solution at all to move from a proposal to have inquests without a jury to one to have inquiries without a jury. That is just as bad, and as he pointed out, it is worse in many respects.

The key is public confidence. How can the public be confident when someone has died at the hands of a state official-a police officer, a prison officer or an officer of one of the security services-if the investigation into their death is carried out by someone chosen by the Government, with terms of reference chosen by the Government, and in circumstances in which, as the hon. Gentleman said, the process can be suspended by the Government? The Government could also determine the terms of the final report to some extent. The independence of such an inquiry would be suspect from the start, and the public would have no confidence in it.

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Photo of Graham Allen Graham Allen Labour, Nottingham North

Would the hon. Gentleman also say that deaths at the hands of state officials sometimes do not take place in public gunfights in broad daylight? They may take place in a cell out of the public eye, or when rendition or a severe form of interrogation such as waterboarding is taking place. Those cases are much harder to bring to public attention, so the safeguards need to be even tougher.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I fully take the hon. Gentleman's point. The whole purpose of investigations is to make state officials accountable in a way that they would otherwise avoid. To the extent that we do not go along the route that the hon. Member for Hendon suggests, we will allow unaccountable state action of that sort to take place.

The Government talk about national security, but as we have argued all along, there is no reason why an ordinary coroner's court could not carry out the task of protecting national security. It has the power to exclude the press and public or to issue public interest immunity certificates, and there is no reason why coroners or even juries should not be security vetted, as juries already are in espionage and treason trials. The question is, what is the size of the risk, which the Secretary of State keeps coming back to, that there will be errors by judges or in the security vetting of juries? I believe that he exaggerates it. There must be a risk, but to exaggerate it to justify the removal of a jury from the process is the wrong way to go.

The Government keep coming back to the difference between criminal trials and coroners' proceedings, and they make the point that there is always the option of stopping a trial, whereas there is no such possibility in a coroner's inquest. That has never struck me as a particularly strong argument, because if there were a very important treason or espionage trial, how would it be in the public interest for prosecutors to believe that the right thing to do was to let someone they believed to be a spy, or worse, go free? In reality, stopping the trial is an option only in cases in which Government embarrassment is at stake, rather than real problems of spying, or worse. So that option does not really exist in criminal trials, either.

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Photo of Alan Beith Alan Beith Chair, Justice Committee

I have the utmost respect for my hon. Friend and his judgment, but I actually think he is wrong about this. A number of cases have arisen over the years in which prosecuting authorities, security and intelligence services and in some cases the police have had to make a judgment that proceeding would cause so much harm to the chance of collecting intelligence in future that it was not the right course of action.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I believe that my right hon. Friend is talking about cases that never start, but I am talking about trials that are halfway through. Perhaps we should study those cases in detail, but the cases in which that has happened have struck me as being more of a political nature than those he describes.

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Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I am reminded of a former Foreign Secretary in the ABC case of the late '70s, who felt that he had been assured that witnesses would not be exposed. The judge took a contrary view and the Government dropped the prosecution, having maintained that it was essential for national security reasons.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

That is the type of case I had in mind. If right hon. and hon. Members have different examples in mind, perhaps they should mention them.

I believe that for the most part, the Government are taking comfort in an illusion. The comfort that they believe they feel does not really exist, because coronial cases and criminal trial cases are much closer than they imagine. In the end, it comes down to their distrust of the jury as an institution. They keep asking themselves, "Who are these people? Where do they come from? We don't know who they are. We didn't choose them. We don't control them." Yes, but that is the whole point of a jury and it is where the public confidence in using a jury comes from-it is not made up of people under the control of the authorities. The amendments tabled by the hon. Member for Hendon are important because they would re-establish that principle.

The question is one of balancing risks and what the reality is of the risks that the Government keep putting forward. They keep giving worst-case scenarios and presenting them as though they were inevitable and would happen on many occasions. Of course, they also say, "These things very rarely happen", so it does not strike me as an enormous risk. However, on the other side there is a risk that provisions such as those in the Bill will be used in other cases in which a jury has been used in the past. That is precisely what the debate about the Menezes case is about-the availability of such provisions and their use much more broadly than the single case to which the Government have pointed throughout the debate.

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Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe

I am trying to follow the hon. Gentleman's argument, but I am not at all clear whether his strictures are based on the Secretary of State's reluctance to accept the amendments put forward by Mr. Dismore, or whether they relate to the admissibility of intercept evidence. If he is addressing the latter, I must say that the risk may be small and may arise out of the occasional, rare case, but very significant damage could none the less be done to our national intelligence capability. I am not clear whether the hon. Gentleman has that in mind in the strictures he is making, or whether he is limiting himself to the proposal of the hon. Member for Hendon.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

In what I have said so far, I have spoken solely about the proposal of the hon. Member for Hendon, without considering the wiretap point, to which I will come separately. Both situations involve the same sort of judgment, although different levels of risk might be involved, as the right hon. and learned Gentleman says.

I can understand the point made by Mr. Grieve about waiting for Chilcot, and the Secretary of State's argument that we cannot just insert the Chilcot criteria into the Bill; in fact, that probably would not produce the result that my noble Friend was looking for. However, some of the things I have been hearing about the legal objections to which Chilcot referred elliptically in his last report do not make any sense to me. If there are human rights objections or any sort of objections to schemes of partial disclosure, how much more do they apply to schemes of no disclosure at all? That is the argument I have been unable to follow throughout the entire debate.

I also cannot understand why anyone on the Government side, as the Secretary of State has rightly acknowledged, says that we must wait for Chilcot, because the original version of clause 13 included a scheme that would allow an inquest-admittedly a juryless inquest-to hear wiretap evidence. There are other examples of wiretap evidence being used by various tribunals-for example, in control order and financial restriction proceedings-so the Government have not waited for Chilcot and have done those things already.

This issue comes down to not trusting jurors-and, by the way, not trusting coroners. The idea is that there is some security risk specifically in the coroner's court and in the jury. The problems one hears about, such as fishing expeditions and certain information coming out if some forms of wiretap were admissible, already apply in the cases where wiretap evidence is already admissible, and would also apply under the original clause 13. It comes down to whether the Government are right to distrust the jury in the coroner's court so much, and whether the risks arising simply from the jury are worth taking. The Government have not yet proved their case on that. How do we know that juries are so unreliable?

My view is that the House should support the amendments put forward by the hon. Member for Hendon. I do not want to take up the House's time with a Division on the Government motion to disagree, because we have already heard that the official Opposition will not be opposing it, so there is no chance of defeating the Government. However, there is a serious chance of defeating them on the hon. Gentleman's amendments, and I urge all my right hon. and hon. Friends to support those amendments in a few moments.

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Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway 6:15 pm, 9th November 2009

I will be very brief-briefer than I would otherwise be-one reason being that like many Members of the House, I would like to hear the views of Mr. Howard, if, indeed, Mr. Deputy Speaker, you were minded to call him at any stage. In that hope, I will be as brief as I can be.

I am grateful to be able to make a contribution in order to deal with what is a grotesquely overstated problem on the part of the Government. My good and right hon. Friend the Secretary of State has always been a master at creating theoretical, if not to say theological, problems with which he is able to torment Labour Back Benchers-he has had a good go at my hon. Friend Mr. Dismore-and at trying to get them to sort out such problems. The plain fact is that by the Secretary of State's own admission, the problem that this draconian measure seeks to remedy either does not exist or is so infinitesimally small that it would be a grotesque misuse of the House's power to hand the Executive such a very large extension of their powers.

May I explain why? Juries know all about covert, intercept, intelligence-based evidence. Let us take for the moment the example of juries in criminal trials. If a jury sits down and hears that a massive police operation nipped a huge bank robbery in the bud, they know perfectly well that covert information and intelligence was behind it, unless they are barking mad and come to the conclusion that the entire flying squad happened to be assembled at that particular point. Of course, if that arrangement is successful, there is no problem. The problem does not arise, and we do not have to worry about public interest immunity in a criminal court if there is a successful operation and people are caught red-handed.

It is exactly the same with a coroner's inquest. If somebody has been shot by agents of the state because they were believed to be a terrorist, there is no problem if it turns out that the person is a terrorist who was carrying bombs or was in the process of plotting. Such problems do not exist. Coroners will not be asked to investigate that kind of evidence. The problem happens when something goes terribly and demonstrably wrong, which is why it is so rare.

However, when something goes that wrong, and when something goes as wrong as it did the Jean Charles de Menezes case, there must be a public inquiry. Having a private, secret inquiry in those circumstances would be a devastating indictment of our system and of the use of Executive power. Despite the engaging way in which my right hon. Friend the Secretary of State talks about judicial oversight and superior judges-as I said in an intervention, it is always nice to hear him adulating superior judges on the occasion that he wishes to enlist their assistance in taking over jury trial-the measure is no counterweight or counterbalance to a jury sitting in an open inquiry, listening to how something has gone terribly and demonstrably wrong at the behest of the Executive.

My right hon. Friend says that the power will be exercised only rarely, but we have heard that before on many occasions-I am going to stop in a moment to give the right hon. and learned Member for Folkestone and Hythe a decent rein-such as when the House debated giving up jury trial in tampering cases. It was said in this House and in the other place that it would only happen in the rarest of cases, and only when the defence had been heard in full on the basis of all the evidence. That has simply not happened. There are two cases now in which the defence has simply not been informed of the reason why jury trial has been denied.

My right hon. Friend the Secretary of State may believe that it will happen rarely or will never be used, but the power that we would be giving to the Executive should never be given by this House, unless we were told in the clearest possible terms that to do so was a grave and immediate necessity. No one has made that case today, and in those circumstances I will take great pleasure in supporting the ingenious amendment tabled by my hon. Friend Mr. Dismore. I could not get it past the Vote Office, but it is a brilliant idea.

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Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe

I must first correct the Secretary of State. He said that I was a member of the Chilcot committee, but I was not a member of the original committee. The Conservative representative on that committee was Lord Hurd of Westwell, and I took his place when the committee changed its responsibility and began to supervise the work of the officials in the Home Office who have sought a way to meet the nine tests set out by the original committee. Although we have not yet achieved the objective of finding a scheme that meets those tests, those officials have been carrying out their work thoroughly and conscientiously in their attempt to meet that objective.

I decided that I should contribute to this debate because of my membership of the committee and I am therefore primarily concerned with the question of the admissibility of intercept evidence. Until the contribution by David Howarth, it looked as if I need not trouble the House with my contribution, because-in sharp contrast to what happened in the other place-there seemed to be a splendid degree of consensus this evening on this subject. Indeed, until this happy consensus descended on the House, I thought at one point that I would be in the very unfamiliar position of voting with the Government against my own party. Happily, that will not be necessary.

It is worth setting out the history of the matter, partly to excuse the fact that my contribution lacks all novelty. I am here to repeat the arguments that I put before the House on the Second Reading of the Counter-Terrorism Bill on 10 June 2008 and the Second Reading of this Bill on 23 March this year. After I made my intervention on the former, the provisions that would have made intercept evidence admissible at coroners' inquests were removed from the Bill. I do not lay claim to a causal connection between my intervention and the removal of the provisions: I merely set out the facts. I was therefore somewhat surprised when this Bill appeared and those provisions reappeared. Once again, I voiced my opposition on Second Reading, and once again-this time at Committee stage in the other place-the Government removed them from the Bill, and I was happy to see that. It is noteworthy that on that occasion they were removed from the Bill without a Division.

It therefore came as an even greater surprise that, on Report in the other place, those amendments designed to provide for the admissibility of intercept evidence were put back into the Bill, this time against the wishes of the Government but at the behest of both the principal Opposition parties in the other place. I am especially grateful to my hon. and learned Friend Mr. Grieve for accepting the Government's view that to put those provisions in this Bill would have damaging and profound consequences for our intercept regime, which makes it unnecessary for me to take the very unfamiliar position of supporting the Government in the Lobby this evening.

It is important that the House understands that I do not take this position because I object in principle to the admissibility of intercept evidence. On the contrary, I have made it clear on numerous occasions, both in the House and outside, that I would very much like to see provision made for intercept material to be admitted in evidence, especially in cases of those accused of terrorism and other serious criminal offences. But things are not as simple as that. They are certainly not as simple as was suggested by the hon. Member for Cambridge.

The work that has been carried out by the officials in the Home Office, and which has been supervised by the Chilcot committee in its present form, has been exhaustive, and it continues. The nine tests that were set out by the original Chilcot committee were necessary if we were to protect a capability of the greatest importance in keeping the people of our country safe. It is one of the frustrating things about the argument that one cannot go very far into the details of justifying the need for those tests without getting perilously close to putting the capability at risk. I am sure that Sir Alan Beith, who sits on the committee with me, would agree, although I must point out that I do not speak for the committee. It would be foolhardy to retain in the Bill the provisions that were inserted on Report in the other place. They do not meet the tests of the original Chilcot committee and, if they were to remain in the Bill, they would be a risk to this country's strategic intelligence capability that no responsible Government should take.

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Photo of Alan Beith Alan Beith Chair, Justice Committee

I hope that the right hon. and learned Gentleman would agree that neither of us wishes to exclude the possibility of finding a way to bring such evidence to bear in cases in which the object is to establish a cause of death. What we have at the moment does not achieve that.

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Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe

I agree, and as the right hon. Gentleman will know, we have today been invited by the Home Secretary to extend the remit of the advisory committee to look at the possibility of admitting intercept evidence in coroners' inquests. I cannot speak for the right hon. Gentleman, but I would happily agree to the remit of the committee being widened in that way.

I have listened with great care and interest to the arguments on the amendment tabled by Mr. Dismore. The Secretary of State put a reasonable question to the hon. Gentleman, which he was not entirely capable of answering, but on balance I shall support the hon. Gentleman and my hon. Friends in the Lobby, if only because it will provide another week for the Secretary of State to take the opportunity to answer the question that he posed to the hon. Gentleman and to come forward with a satisfactory regime that would deal with some of the mischiefs that were identified so eloquently by many of the contributors to this debate, not least Mr. Marshall-Andrews.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

With the leave of the House, I wish to reply to the debate.

I thank Mr. Howard for his remarks. I wondered how he would conclude, because I understand his discomfort in abstaining or not supporting those on his Front Bench. He went in for some wonderful casuistry to move from the position that he had adopted to the position that he now supports.

I say to my hon. Friend Mr. Dismore and others who spoke that I am glad that there is a profound difference between the view of this House and that of the other place. The view from all parts of this House-my hon. Friend added his name to my amendment to delete the additional provisions put forward by Baroness Miller in the other place-is that everybody accepts that there have to be circumstances where intercept evidence is kept from a jury hearing an inquest, so that at least is progress.

Then we hear suggestions that there are ways round that. My hon. Friend Mr. Marshall-Andrews say, "Well, we can do it through the existing measures." We have been through that. There are some cases-I assure my hon. Friend that they are indeed few and far between-where having a jury trial will result in an injustice, because there will be key evidence that cannot go before the jury as a finder of fact. With respect, where he is wrong is in suggesting that an inquiry headed by a senior judge would not be article 2 compliant. What would not be article 2 compliant in those circumstances would be the inquest jury, which would not be able to conduct a proper examination.

There is another important point that I would make to the House, as the Opposition, as well as my hon. Friends, need to apply themselves to that which they seek to vote on in a moment, although I would advise my hon. Friends not to do so. My hon. Friend the Member for Hendon proposes that we delete paragraphs 3 and 8 of schedule 1. Paragraph 3 allows for a suspension of an inquest where there is an inquiry appointed under the Inquiries Act 2005 and where a judge has been appointed to hear that inquiry. I have already made it clear that in practice-I am happy to put this on the record again, and everybody who knows the practice knows this to be true-there could be no such appointment without the consent of the Lord Chief Justice, and his consent would be forthcoming only where he was satisfied about the circumstances and the discretion available to the learned judge. Those undertakings are absolutely clear.

I should also make it clear that if we were to pass the proposed amendments, that would not result in there being no inquiry under the Inquiries Act 2005. Rather, it would simply result in an inquest, which could not hear the evidence, running in parallel with an investigation that could hear the evidence. I suggest that that is the worst of all possible worlds- [ Interruption . ] I am being told to keep speaking. I am always happy to keep speaking. Although I appreciate his motives, I would ask my hon. Friend to appreciate what exactly he is proposing. He would end up with a muddle, where there would still be a requirement-

One and a half hours having elapsed since the commencement of proceedings on consideration of Lords amendments, the debate was interrupted (Programme Order, this day).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83F), That this House disagrees with Lords amendment 1.

Question agreed to.

Lords amendment 1 accordingly disagreed to.

The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F).

Lords amendment 2 disagreed to.

Lords amendment 216 disagreed to.

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Photo of Andrew Dismore Andrew Dismore Labour, Hendon 6:33 pm, 9th November 2009

With the leave of the House, I would like to move amendment (a) in lieu.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

I have to inform the House that it is not possible under the terms of the programme order for the hon. Gentleman's amendment to be put to the House. That is quite clearly laid down in the programme order and is backed by the appropriate Standing Order, so we have to move on.

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Photo of Dominic Grieve Dominic Grieve Shadow Secretary of State (Justice)

On a point of order, Mr. Deputy Speaker. I have to express some amazement that this has happened. If that is indeed the case, it is contrary to my earlier understanding that it would be possible to vote on amendment (a) in lieu. Indeed, the whole reason for that, as you will have appreciated from the tenor of the House, was that we should be able to vote on that precise amendment.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

I was all too aware that that was the consequence, but once the Justice Secretary spoke until 6.33 pm, that left the Chair with no option on this matter.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

Further to that point of order, Mr. Deputy Speaker. I had no intention of doing that. I think that there ought to be a vote on amendment (a) in lieu, and if it requires me to move it, I will move it.

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Photo of Alan Haselhurst Alan Haselhurst Chairman of Ways and Means

The right hon. Gentleman anticipates me. The only way in which amendment (a) in lieu can be put to the vote is if he is prepared to move it.

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Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

Provided that the House understands that I shall vote against it.

Amendment (a) proposed in lieu of Lords amendments 1, 2 and 216.-( Mr. Straw .)

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Question put, That the amendment be made.

The House divided: Ayes 266, Noes 274.

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Question accordingly negatived.

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