Clause 65

Counter-Terrorism Bill – in a Public Bill Committee at 6:00 pm on 13th May 2008.

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Specially appointed coroners

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome 6:30 pm, 13th May 2008

I beg to move amendment No. 178, in page 46, line 6, leave out ‘Secretary of State’ and insert ‘Lord Chief Justice’.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss the following amendments: No. 220, in page 46, line 7, after ‘inquest’, insert

‘provided that such a person has been specifically approved for the purpose by the Lord Chief Justice of England and Wales’.

No. 179, in page 46, line 9, leave out from ‘coroner’ to end of line 11 and insert ‘and

(b) is included in a list of coroners prepared by the Lord Chief Justice for that purpose;

(2A) Any coroner may apply to the Lord Chief Justice to be added to a list prepared under subsection (2).’.

No. 181, in page 47, line 23, leave out ‘Secretary of State’ and insert ‘Lord Chief Justice’.

No. 221, in page 47, line 23, after ‘State’, insert

‘, with the consent of the Lord Chief Justice of England and Wales,’.

No. 182, in page 47, line 25, leave out ‘Secretary of State’ and insert ‘Lord Chief Justice’.

No. 183, in page 47, line 31, leave out ‘Secretary of State’ and insert ‘Lord Chief Justice’.

No. 184, in page 47, line 32, leave out ‘Secretary of State’ and insert ‘Lord Chief Justice’.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

We now move on to the way in which, when a certificate has been issued for there to be no jury in a coroner’s court, a coroner can be specially appointed to displace the coroner who would have heard the inquest at the behest of the Secretary of State. The  purpose of this group of amendments is to say that that simply will not do, and that it is inappropriate for the Secretary of State to appoint the person who heads the court—the coroner—instead of it being a judicial appointment. That runs counter to any principle of judicial independence that we may have. It simply cannot be right that in the first instance the Secretary of State decides that it is inconvenient for an inquest to be held with a jury and for certain matters to be put before an open court, and then to decide who will sit in judgment on that closed matter in the coroner’s court.

I am not unsympathetic to some of the Government’s arguments, but I am totally unsympathetic to the view that any Secretary of State should take that responsibility on himself or herself. I am looking for an alternative way in which to ensure that as near as possible, within the constraints that the circumstances require, an ordinarily appointed coroner leads the inquest and hears the evidence. It is clear that for that to be the case, the coroner must be vetted if they are to look at material that is not available to the general public. There must be a vetting process, and then there must be a process to indicate which coroner in those circumstances should preside in a case when there would usually be a territorial requirement but that requirement has been displaced.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I am broadly with the hon. Gentleman, but we do not have a national coroner system at the moment. We may have, after the reform Bill, but we do not at the moment. If the hon. Gentleman shuts up now and withdraws his amendment, I shall happily, with him or without him, go away and consider the matter. I am not terribly bothered whether it is the Secretary of State, Lord Chief Justice or whoever, but I want to explore the matter further. I just need a device to get said individuals in place to do what I want them to do under clause 64, and I fear that the longer the hon. Gentleman goes on, the more I am dissuaded.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I am not going to be dissuaded from making the case, Mr. O’Hara, during the Committee stage of a Bill. The Minister’s response is what I anticipated. I do not believe that he can be wedded to the idea, which is so corrosive to the principle of an independent judiciary, that the Secretary of State should decide who should be the coroner. First, if it were possible for the Lord Chief Justice to take that responsibility, that would put it into the judicial sphere rather than the political sphere. Secondly, it should be possible for any coroner on the coroners’ list—I agree that we do not have a national coroner system at the moment—to be able to apply to be included on the list, subject to the vetting procedure. Many will not want to go through that procedure because it is onerous, and they may be happy not to be on that list and not to hear such inquests, but they should have the opportunity to do so and to be on the list. Once we have a list, the Lord Chief Justice should be able to select the coroner who is most appropriate to hear the case, having regard to the geographical situation and any other circumstances that might apply. I think that we can trust the Lord Chief Justice to do that in a dispassionate way and to take an appropriate decision, and that is what I intend by my group of amendments.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am going to say a bit more than “I agree”. It is extremely important that we should substitute somebody such as the Lord Chief Justice for the Secretary of State, because after all, we want to go back to where we start. Where we start from is that the Secretary of State has certified that in his or her opinion, the matter should not be heard with a jury. We are then going on to the next stage of contemplating a specially appointed coroner to determine an inquest that has already been the subject of the Secretary of State’s certificate. The public has got to have confidence in the procedure and I should have thought that the public would be very concerned if, in such a situation, the Secretary of State were then to nominate a specifically appointed person.

There is a further dimension to this that arises out of the European convention on human rights. This Committee will have in mind that there has been a growing recognition, as a result of the European convention, that the Executive has to be distanced further than was the case from judicial actions. I have in mind two matters—for example, the fact that the Lord Chancellor is no longer able to sit on appeals. That arose because the Government understood, in my view rightly, that this was incompatible with the European convention because, it was said, it was wrong for the Executive to have any role in a judicial process.

Another consideration that comes into play is perhaps closer to this one. The Committee, or some of it, will keep in mind that there was a process for appointing assistant recorders. The status of assistant recorders has, I think, been wholly abolished and replaced by full-time recorders and the reason for that, in my understanding, was that it was felt in Government, and I think again correctly, that it was incompatible with the European convention to have a judicial process conducted by somebody appointed ad hoc, that is to say without certainty as to the term of his or her appointment. Once you have got yourself a specially appointed coroner, you are in precisely that position and therefore not only as a matter of perception, but I think as a matter of substantive law, it is extremely important that the Secretary of State is not the appointing authority, or at least is not the sole appointing authority.

I am grateful to the Minister for saying he is not wedded to this particular concept, because if he is, he will probably lose it, if only on judicial review. I hope he will come forward with some solution along the lines put down in the various amendments. I personally think it best of all to have the appointment of the specially appointed coroner by the Lord Chief Justice, and that is something that I would be content with.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I agree with the points that have just been made by my right hon. and learned Friend. In fairness to the Government, when we had the briefing at the Home Office, it became clear to me that in their intention of having specially appointed coroners, the Government were not attempting, as I said earlier, to put in functionaries who would do their bidding, but that primarily they would be looking to existing coroners and to having a small specialist panel who had been specially vetted for the purpose. In addition, it is not unheard of—it has just happened with the inquest on the Princess of Wales—to appoint a High Court judge or a Lord Justice of Appeal as a coroner. All those things provide flexibility in the system, which I would not wish to see removed.

The fact remains, however, and I am pleased the Minister seems to have taken this point on board, that the appointment ought to be by the Lord Chief Justice. Indeed, the argument in favour of the Lord Chief Justice appointing coroners is even stronger than that in favour of him deciding on what the interests of national security may be, and it would be very much easier for him to do. That might be one of the reasons why the Minister seems to be more attracted to that proposal than to the others for the Lord Chief Justice’s role. I strongly urge the Minister to consider his role in both circumstances, but particularly in the appointment of coroners.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome

I shall take the Minister’s earlier intervention as an expression of his firm intention to reconsider the matter before Report. I think that he is very wise to do that. If left uncorrected, Members will continue to feel strongly about it on Report, and I am absolutely certain that those in another place will amend it to provide for the Lord Chief Justice to have this role, if it is not commended. On that basis only, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 190, in clause 65, page 46, line 7, after ‘inquest’ insert

‘subject to ratification by vote in both Houses of Parliament’.

Photo of Edward O'Hara Edward O'Hara Labour, Knowsley South

With this it will be convenient to discuss the following amendments: No. 192, in clause 65, page 46, line 16, leave out ‘whether’ and insert ‘unless’.

No. 180, in clause 65, page 46, line 37, at end insert—

‘(c) the inquest must be held in the place in which it would have been held if no coroner had been specially appointed under section 18A.’.

No. 194, in clause 65, page 47, line 8, leave out subsection (4).

No. 228, in clause 65, page 47, line 13, leave out subsection (5) and insert—

‘(5) Any such statutory instrument shall be subject to an affirmative resolution of both Houses of Parliament.’.

No. 195, in clause 65, page 47, line 16, leave out subsection (6).

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The amendments are mainly of a probing nature, although some are more specific than others. I shall run through those of particular interest to me. Amendment No. 190 would provide that in the exceptional circumstance of the issuing of a certificate, it would have to be subject to a ratification by both Houses of Parliament. That is a rather ponderous process. I think that the system of having a Lord Chief Justice is probably preferable, but if it is to be used in highly exceptional circumstances only, the amendment might provide for an alternative way forward.

I do not think that amendment No. 192 adds anything to the substance of the discussion, but amendments Nos. 194, 228 and 195 are important to the latter part of clause 65. I shall begin with amendment No. 194. Proposed new section 18B(4) to the Coroners Act 1988 states:

“The Secretary of State may by regulation made by statutory instrument provide for this Act and the law relating to coroners  and coroners’ inquests to have effect in relation to specially appointed coroners with such modifications as may be specified in the regulations.”

I appreciate why that might be required, but the power is far too sweeping to be given to the Secretary of State. If we are to have regulations, I would expect them to be like rules of court and approved by the Lord Chief Justice, even if they are put forward by the Lord Chancellor. That would be a better way to do it. Furthermore, we will obviously require the opportunity to vote on the regulations. The system cannot simply provide for a vote on annulment. It must be decided on a positive vote by both Houses of Parliament, so I would expect it to be decided by affirmative resolution.

Finally, amendment No. 195 is a probing amendment that would leave out proposed subsection (6):

The Secretary of State may pay a specially appointed coroner such remuneration and allowances as the Secretary of State thinks fit.”

I would expect procedures to be in place to ensure that that is not done on an ad hoc basis, as the provision seems to imply it would be. I am not sure how Lord Justice Scott Baker was remunerated for his work as the coroner in the inquest into the death of Diana, Princess of Wales, but I assume that it came out of his salary for sitting as a Lord Justice of Appeal. I would not expect there to be a special remuneration and allowances rate as is the case if a coroner is specially vetted by a panel—although, I suppose that it could be argued that he receives an enhanced salary for having undergone that process. Otherwise, however, it should all be part of a day’s work.

Photo of David Heath David Heath Liberal Democrat, Somerton and Frome 6:45 pm, 13th May 2008

Amendment No. 180 is an attempt to ensure that where these special procedures apply, an inquest is held in the place in which it would normally have been held. That is to say that, if it were a matter coming before the coroner in London, the inquest would be held in London. If it would normally have been held in Somerset, it would be held in Somerset. That is important for the victim’s family and other witnesses.

It would not be appropriate simply because of the circumstances of the case for the inquest to be whisked away to Paddington Green or somewhere in order to be held even more remotely from the normal arrangements. I hope that the Minister can give me an assurance as to how guidance will be issued to the various authorities that determine where an inquest is held, and that the normal circumstances and arrangements for an inquest will be as I suggested.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I will comment on two matters which fall within this group of amendments. First, on the regulations, I agree with my hon. and learned Friend the Member for Beaconsfield that it is highly desirable that the regulations should be subject to the affirmative resolution procedure and not to any other.

Secondly, remuneration. It is very important that we should keep in mind public confidence, and it would be very undesirable in those terms if the specially-appointed coroner were paid a remuneration out of kilter with that paid to ordinary coroners, especially if the specially-appointed coroner were paid a great deal more. I can see the public—Mr. al-Fayed, for example—complaining  like anything and suggesting that the specially-appointed coroner was being bribed, or something of the kind. What is required is something like that which is provided for in my amendment No. 233, which has not been selected, namely that the level of remuneration should be agreed prior to the appointment by the Lord Chief Justice. If that were the case, I think it would be extremely difficult to make the criticism that might otherwise be made, but I do think that we have to address the question of remuneration and put in place some mechanism to prevent anybody crying foul.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I agree with what has just been said, and with what the hon. Member for Somerton and Frome said about inquests taking place where they would have done under an ordinary coroner, if I might put it that way. It goes to public confidence, and I think it is very important that we have a geographical spread of these coroners throughout England and Wales. That is key.

In Wales, we must also consider the ability to speak the Welsh language. As a Welsh first-language speaker, I have practised many times in coroners’ courts and conducted proceedings in Welsh without the need for translation. We must look at both the geographical spread and the linguistic differences. In Wales, there will occasionally be a need for a Welsh-speaking coroner. I agree with the purport of the amendments and hope the Minister will give some reassurance in due course.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

On amendment No. 180, it is not our intention that the inquest should be anywhere other than the appropriate location. Given that I have said that these will be cases that are few and far between and very small, even with a cadre of six to eight specially appointed coroners it should not be beyond wit or practicability to ensure that that prevails. I hope that gives the hon. Member for Somerton and Frome the reassurance he seeks.

On the wider points made by the hon. and learned Member for Beaconsfield, much of what he has discussed relates to what we were talking about before in terms of whether the Secretary of State, the Lord Chief Justice or whomever should be party to the appointments. I would prefer that we take that away and look at it in the same spirit as I have suggested, save for a couple of points. As I understand it, members of my office are developed vetted over the course of six months. They have to be, because of my responsibilities. It is quite a tortuous process—I am not sure whether their friends talk to them again—and it does not involve any increase in their remuneration. They then go back and get on with their job.

The point about remuneration is included because of cases such as Diana. That is not an appropriate example, because the coroner was judge-appointed, but in such cases there is an extraordinary level of travel and other costs additional to the regular remuneration. It is not about paying some inflated fee to special coroners because they are lapdogs and lickspittles of the Government, which of course they will not be.

The broad spirit of the amendments, including amendment No. 178, which we have discussed, is about who should make the appointment and whether it should be an Executive role. I am happy to consider the matter and return to it on Report. In that context, I ask that the amendment be withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

As these are probing amendments, I am happy not to press them. I am grateful to the Minister for saying that he will reconsider. On an optimistic note, I hope that he will have seen from the debate that we have the foundations for agreement on the issue. That might well require the Government to redraft the clauses in question radically to get them in a form that would command general acceptance. I hope that he will take that on board. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 10, Noes 6.

Division number 10 Nimrod Review — Statement — Clause 65

Aye: 10 MPs

No: 6 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 65 ordered to stand part of the Bill.

Clause 66 ordered to stand part of the Bill.