New Clause 13

Counter-Terrorism Bill – in a Public Bill Committee at 2:45 pm on 15th May 2008.

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Applications for inquests to be held without a jury

‘(1) In section 8 of the Coroners Act 1988 (c. 13) (duty to hold inquest), after subsection (7) insert—

“(8) This section is subject to section 8A (applications for inquests to be held without a jury).”.

(2) After that section insert—

“8A Certificate requiring inquest to be held without a jury

(1) The Secretary of State may apply to the Lord Chief Justice for an inquest to be held without a jury if it is—

(a) in the interests of national security,

(b) in the interests of the relationship between the United Kingdom and another country, or

(c) otherwise in the public interest.

(2) The Lord Chief Justice may grant an application made under subsection (1) if he is satisfied that any of paragraphs (a) to (c) apply.

(3) Where an application under subsection (2) has been granted, the inquest must be held without a jury, so that—

(a) if a jury has not been summoned, the coroner must not summon a jury, and

(b) if a jury has been summoned, the coroner must discharge the jury.

(4) Accordingly, the following do not apply in relation to the inquest—

(a) the power under subsection (1) or (4) of section 8 to hold the inquest or part of the inquest with a jury, and

(b) the duty under subsection (3) of that section to hold the inquest with a jury in the circumstances set out in that subsection.

(5) If a jury is summoned—

(a) the coroner must proceed in all respects as if the inquest had not previously begun, and

(b) the provisions of this Act apply accordingly as if that were the case.”.

(3) This section has effect in relation to inquests that have begun, but have not been concluded, before the day on which it comes into force as well as to inquests beginning on or after that day.’.—[Mr. Grieve.]

Brought up, and read the First time.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move, That the clause be read a Second time.

This is the last of the new clauses that we have to consider. It follows on in many ways from the debate that we had on Tuesday so I need not take up too much of the Committee’s time. It offers the Government the opportunity to look at a formula that provides, by relatively minor tweaking of the Bill, for the Secretary of State to make an application to the Lord Chief Justice for an inquest to be held without a jury rather than a certificate being issued, as is proposed by the Government. I hope that in the 48 hours since we last debated this matter, the Minister will have been tempted into a greater understanding of how important it is that any changes to the coroners inquest process to allow the use of intercept and intelligence evidence should be subject to judicial discretion.

If the Government are right—and the Minister made a powerful case on Tuesday—as to the necessity in some cases of abandoning the current inquisitorial system with a jury because of the advantage of putting material in front of a coroner that will be conclusive and very helpful, at least to the coroner coming up with the right answers to what happened, then persuading a court of the necessity of departing from the current practice, appears to be the absolute foundation for doing that.

I am perfectly satisfied that the Government may be able to tell me, even today, that the new clause is flawed in a number of technical respects—for which I can only apologise, I did my best to redraft it as I could—it nevertheless allows for such a model. If that model  were also linked to the obvious safeguards—which we were asked for but which I have not sought to tackle in new clause 13—needed for the appointment of coroners themselves, that will already start to go a very long way indeed to meeting some of the anxieties expressed. I obviously reserve my position on this as to whether we would have to continue our opposition.

I am aware that there is one area in the course of the passage of this Bill—42 days pre-charge detention—where I suspect that a meeting of minds will remain absolutely impossible for a variety of reasons. But I have to say that on this matter, which in a sense took us by surprise, there is a danger of there being substantial disagreement leading to us seeking to remove this part of the Bill entirely on Report. Certainly I wonder whether it will survive in the other place in its present form—I think it most unlikely. The Government will have to take urgent steps to persuade the House of Commons, and ultimately to persuade the House of Lords, that the changes they are bringing about have adequate safeguards and will not prejudice the complete review in the course of the coroners Bill, which, since the Prime Minister’s announcement yesterday, we now know we are going to be getting next year. It would be much better if all of this could be put off until the coroners Bill, particularly in light of what the Government have said. In that case, I would urge the Minister not to go down the road of new clause 13, but simply to take the opportunity on Report to remove the references to inquests in the Bill with an assurance that the House will return to the matter in the course of next year. That would be my preferred course. I have been trying to show the Minister a common road that we can follow, because I am mindful of the fact that the Minister has raised an important issue here, and the Home Office briefing made me realise its importance. At the same time, the protections afforded by coroners inquests and juries should not be allowed to be forfeited or removed lightly.

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

I rise to support new clause 13. I really have only three observations to make. First, I agree with what my hon. and learned Friend the Member for Beaconsfield said about the coroners Bill. The changes in this part of the Bill are much better placed in the context of a coroners Bill and I would be content if we did not deal with it in this Bill at all.

Secondly, and differently, for the reasons that I previously advanced earlier, I do not believe that the public will ever be content with a process whereby the Secretary of State, acting alone and through certificate, can prevent a hearing before a jury. I do not think that the public will accept that, and I think the public would be right not to accept it. That being so, if we are going to go down this road at all, we have to find some other process whereby the certificate is issued.

I believe—it was in my amendments that we discussed some time ago—that the role of the Lord Chief Justice would provide the necessary reassurance. I think my hon. and learned Friend the Member for Beaconsfield is to be congratulated on the way in which he has drafted his new clause, subject to the third point that I am going to make.

I find it very difficult to believe that I will ever be persuaded that the phrase “otherwise in the public interest” should form part of the criteria. We debated  this some time ago when I set out the reasons why I am against it and I will not repeat them today. It is far too wide.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 3:00 pm, 15th May 2008

I agree with my right hon. and learned Friend. Having tabled the new clause, I rather regretted that I had not sought further to change the original text.

There are strong arguments, particularly in the context of this debate, for the criteria to be either the interests of national security or some other overwhelming reason, given the need to allow intercept evidence to be adduced. The criteria should include nothing else, and certainly not the interests of the relationship between the United Kingdom and another country, which has always struck me as one of the more bizarre aspects of the proposal.

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

I am grateful to my hon. and learned Friend for making that point. We are as one on this matter.

I hope that the Minister will take the matter away and examine whether another formula can be arrived at, either for this Bill or the coroners Bill. I, and I suspect most of my party, have enormous difficulty with any proposal that allows the Secretary of State to issue the certificate or which allows such criteria.

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 remind the Committee that the Attorney-General’s general guidelines in respect of every prosecution contain a public interest element. Why do we need the provision expressly in the Bill? It seems unnecessary. Are we to take it that there are different sets of public interest considerations from the ordinary ones of the Attorney-General’s guidelines?

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

I suspect that the answer is that once the provision is in the Bill it is capable of a wider interpretation. The point is fairly raised, but I do not know the answer. Perhaps the Minister does. The phrase is very wide and, as it has such dramatic consequences, I would be reluctant to give it any kind of tacit support.

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

I was going to say that we had already debated this new clause and therefore it was unnecessary to replicate the arguments, save for a reservation, which the right hon. and learned Member for Sleaford and North Hykeham has now expressed. I still cannot be doing with subsection (1)(b) and (c)—I regretted that it was included in the new clause, but apparently the hon. and learned Member for Beaconsfield does too, so we are at one.

As the hon. and learned Gentleman has said, we are capable of finding a resolution on this issue if the Government are so disposed. If we do not, it is unlikely that the provision will make it through both Houses. There is still the option of using the coroners Bill as the vehicle, which will occasion a delay, but perhaps not an insurmountable one.

If we want to go ahead now, two issues need to be addressed. One is the certification by a Secretary of State that a matter can be held without a jury without judicial oversight or involvement. The second, which I  find reprehensible, is the suggestion that a Secretary of State should appoint a special coroner, rather than the appointment being subject to judicial independence.

If we can deal with both issues—the hon. and learned Gentleman’s new clause deals with one of them—then we are a long way towards a meeting of minds. I hope that the Minister will accept the spirit of the new clause as proposed and supported from the Opposition Benches, and that he will find a suitable resolution.

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

No, I do not accept it, but I appreciate that this mini-debate and our debate on Tuesday have shown that the Committee recognises the need for a resolution. I said then that I would take away part 6 and have a look at its architecture, and that must continue to be my refrain. I take very seriously the notion that we should be able to move forward on a consensual basis. I am told that there is at least one and possibly other compelling cases that mean that we should do this now rather than wait for the now publicly flaunted coroners Bill in the next Session.

I also made the point—I am not sure whether it was in Committee or outside it—that were something of that order to pass in part 6, a very strong link would be made to it eventually being subsumed into the coroners reform Bill. That is perfectly logical. I am up for getting us all to a stage where, having agreed that there is an issue, we can overcome it. I will reflect on this and other sections of part 6 and potentially discuss them further with Committee members before Report.

In that context, I ask that the new clause be withdrawn.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I look forward to hearing in due course how the Minister intends to tackle this difficult problem. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.