Clause 11

– in a Public Bill Committee at 6:15 pm on 10th February 2009.

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Certified investigations: Investigation by judge, inquest without jury

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I beg to move amendment 40, in clause 11, page 6, line 4, after ‘if’, insert

‘the matter has been referred to the Lord Chief Justice and he or she is’.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss the following: amendment 42, in clause 11, page 6, line 6, leave out ‘any of the reasons’ and insert ‘the reason’.

Amendment 43, in clause 11, page 6, line 9, leave out ‘reasons are’ and insert ‘reason is’.

Amendment 41, in clause 11, page 6, leave out lines 12 to 16.

Clause stand part.

Amendment 63, in clause 12, page 7, line 3, leave out ‘Secretary of State’ and insert

High Court on application by the Secretary of State or by any interested person.

(1A) The court may discontinue a certificate if it is satisfied that the certificate is no longer necessary to prevent material or information being disclosed whose disclosure would be seriously detrimental to national security.’.

Amendment 64, in clause 12, page 7, line 6, leave out ‘11(3)(a)’ and insert ‘[Certified investigations](4)(b)’.

Amendment 65, in clause 12, page 7, line 9, leave out ‘11(3)’ and insert ‘[Certified investigations](4)(b)’.

Amendment 66, in clause 12, page 7, line 15, leave out from ‘must’ to end of line 17 and insert

‘continue with the inquest with the jury already summoned.’.

Amendment 67, in clause 13, page 7, leave out lines 22 to 31 and insert—

“(d) disclosure for the purposes of an inquest for which a certificate exists under section 11 of the Coroners and Justice Act 2009; or’.

Amendment 68, in clause 13, page 7, line 41, after ‘Court’, insert ‘or Coroner’.

Amendment 69, in clause 13, page 7, line 42, after ‘judge’, insert ‘or coroner’.

Amendment 125, in clause 34, page 19, leave out lines 10 to 12.

Amendment 110, in clause 38, page 23, line 28, leave out from ‘5’ to end of line 29.

Amendment 109, in schedule 9, page 139, line 3, leave out from beginning to end of line 6 on page 140.

New clause 10—Certified investigations

‘(1) The Secretary of State may apply to the High Court for a certificate ordering that an inquest be held in camera.

(2) The Secretary of State may only apply for a certificate if he is satisfied that it would be necessary to prevent material or information being disclosed whose disclosure would be seriously detrimental to national security.

(3) The court may only grant the certificate if it is satisfied—

(a) that granting the certificate is necessary to prevent material or information being disclosed whose disclosure would be seriously detrimental to national security; and

(b) that other measures short of granting a certificate would not be adequate to prevent such disclosure.

(4) Where the court grants a certificate, the following provisions apply—

(a) Chapter 2 of Part 3 of this Act (witness anonymity orders) shall apply as if a coroner’s court were a court for the purposes of that Chapter, as if the proceedings at an inquest were criminal proceedings for the purpose of that Chapter, and as if references to the prosecutor in that Chapter included a reference to the Secretary of State;

(b) the Lord Chief Justice may appoint a judge of the High Court to act as coroner for the case, and a judge so appointed shall have the same functions and powers in relation to the body and the investigation as would be the case if he or she were the senior coroner in whose area the body was situated;

(c) the jury may be subject to checking in accordance with the Attorney General’s Guidelines on Jury Checks.

(5) If a just has already been summoned when a certificate is issued, that jury must be discharged and a new jury summoned.

(6) The certificate may require that part of the inquest be held in camera and part in public, and the court must only issue a certificate requiring the whole of an inquest to be held in camera if that is necessary to prevent material or information being disclosed whose disclosure would be seriously detrimental to national security.

(7) Where a certificate has been issued under this section, the coroner or judge may at any time, taking into account whether any witness anonymity orders have been made, admit to the proceedings any interested person he may specify, provided that he is satisfied that doing so will not lead to material or information being disclosed whose disclosure would be seriously detrimental to national security.

(8) Where a decision made by a judge conducting an investigation by virtue of this section gives rise to an appeal under section 30, that section has effect as if references in it to the Chief Coroner were references to a judge of the Court of Appeal nominated by the Lord Chief Justice.

(9) A reference in this section or section 12 to conducting an investigation, in the case of an investigation that has already begun, is to be read as a reference to continuing to conduct it.’.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

The clause is highly controversial. It has been the subject of a great deal of debate and a huge amount of opposition from a great number of organisations. The provision was contained in the Counter-Terrorism Bill, which is now the Counter-Terrorism Act 2008. At the time, we argued that it was a step too far. We said that it would destroy public confidence in the coronial system. We thought that the Government had listened to us because they withdrew the proposal from the Bill. We were very disappointed when we saw it come back in the form of clause 11.

What the Government are doing will undermine public confidence in the coronial system. The public expects openness and transparency and for inquests to be held in a totally non-confrontational environment. They also expect to be able to know exactly what is going on. The Minister has argued—and the Secretary of State argued on Second Reading—that there are some inquests in which the current safeguards to protect national security and the identity of key personnel, and to detect crime are not adequate.

The Secretary of State has also pointed out that two inquests have stalled because the safeguards and arrangements are inadequate. What the Secretary of State did not explain to the House on Second Reading was the details of those two inquests. As an aside, he merely pointed out that two inquests had ground to a halt. Is it really the case that those inquests ground to a  halt because safeguards were not adequate, or was it because the Government want to put in place a system in which everything can be done very conveniently and easily through the certification process? Those inquests would then be completely private, presided over by a High Court judge.

Will the Minister elaborate as much as she possibly can on those two inquests and tell the House why present safeguards are not adequate? I put it to her on Second Reading that if she looked at the inquests of Jean Charles de Menezes and, the RAF Nimrod disaster, she would find that both covered highly delicate controversial material, and, it could be argued, that both dealt with issues of national security. One certainly dealt with the relationship between the UK and another country, and both dealt with many other highly sensitive matters. However, current safeguards were called into play. For example, public interest immunity certificates were issued, and the police and other agents of the Crown gave evidence behind a screen. The inquests could also be held in camera. I argue that those inquests show that the present safeguards work.

My concern is simple. If the clause is enacted, it will be easy for the Secretary of State to say that it would be convenient, and that it would be in our interests, to close down debate, do away with transparency, and have the inquest in secret from the word go rather than at some stage during the hearing. The Secretary of State told me that those two inquests would not have been affected by the proposed procedures. I do not accept that. Ministers are suggesting a huge increase in power for the Secretary of State.

I believe that the clause should not remain part of the Bill, as it will undermine public confidence in the system. The Minister’s arguments do not stack up. Bearing that in mind, we are very concerned. We want a system that has credibility and commands public support. We should consider the matter from the viewpoint of the families involved in the Nimrod disaster and the family of Jean Charles de Menezes. If the Secretary of State had used these powers—if they had been on the statute book—there would have been an outcry not only from the families; there would have been a major public outcry. The Secretary of State may save himself and other Ministers some potential embarrassment in a small number of inquests by using those powers, but it would undermine the entire coronial system. The system requires and demands public support.

Those are the reasons why we are not happy with clause 11. If the Government insist on it remaining in place, safeguards will be needed. That is why we tabled amendments 40 to 43. I shall consider those safeguards and what they entail.

In amendment 40, we suggest that rather than the Secretary of State certifying an investigation, he or she should refer the matter to the Lord Chief Justice. The Lord Chief Justice would then have to be of the opinion that an

“investigation will concern...a matter that should not be made public”.

We say that the power should not be in the hands of the Secretary of State; he could refer a matter to the Lord Chief Justice for him to make a decision. In that respect, amendment 40 is similar to some of the Liberal Democrat amendments.

If the clause remains part of the Bill, further safeguards will be needed. The reasons on offer in the Bill for matters not to be made public are widely framed. They are listed in subsection (2). Paragraph (a) states:

“in order to protect the interests of—

(i) national security,

(ii)the relationship between the United Kingdom and another country, or

(iii) preventing or detecting crime;

Paragraph (b) states:

“in order to protect the safety of a witness or other person”.

However, it is the last paragraph that really does it for me and for my hon. and learned Friend the Member for Harborough. Paragraph (c) states:

“ otherwise in order to prevent real harm to the public interest.”

That, surely, is a catch-all provision. My concern is that rather than two, three or four inquests a year being covered by the clause, if enacted, the number will escalate. It will be convenient for Ministers of whatever colour to exercise those powers in order to save them, their agents and Government officials the inconvenience of being involved in being transparent and open.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

Does my hon. Friend agree that one of the most worrying aspects of the problems he is describing is this: subsection (2)(c) reads,

“otherwise in order to prevent real harm to the public interest”, and subsection (1) states that the

Secretary of State may certify an investigation under this Part into a person’s death if of the opinion that”, so we are simply dealing with the Secretary of State’s opinion that the public interest could be harmed in a real way?

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice) 6:30 pm, 10th February 2009

My hon. Friend is 100 per cent. right. That is why it cannot possibly be based on the Secretary of State’s opinion, and why it should based on the opinion of someone as independent and robust as the Lord Chief Justice.

Photo of David Kidney David Kidney Labour, Stafford

Is not the hon. Gentleman uncomfortable with the idea that the judiciary would make the judgment about national security rather than the Executive? Is that fundamentally the Executive’s role, not the judiciary’s?

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

This Government have brought in a lot of legislation that we think has trammelled the rights of individuals and reduced liberties in this country. Indeed, we believe that they have turned this country into a less free country, and they have other plans in mind. I find it ironic that, having been out of Parliament for a while and come back in as a mainstream Conservative, I very often find myself on the libertarian left of the Government on so many issues. I would rather trust someone such as the Lord Chief Justice than the current Secretary of State. We must have built-in safeguards. I am not saying that that is the only safeguard, but one can rely on the independence of the judiciary of this country.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I have two quick points for my hon. Friend to consider. First, on the legislative creep that has arisen over counter-terrorism, is he aware that I had an interesting conversation with an entirely sensible Icelandic MP who expressed great resentment of the procedure against her country under counter-terrorism legislation? Secondly, on the argument that he is making  on the amendments on judicial involvement, does he agree that even if the Government decide not to move in that direction, as recommended by a number of interesting people, including Lord Pannick in a recent article, it will nevertheless happen in practice? Any single decision taken by the Secretary of State is likely to be appealed through judicial review, so in the end, it will become a judicial decision, even if it begins as an administrative decision.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Order. The hon. Gentleman may wish to address the issue of legislative creep, but I would prefer it if he did not go too far towards the Arctic circle.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I am grateful to my hon. Friend because he touched on the very good point that it was indeed measures in the Counter-Terrorism Act that were used by the Treasury and Financial Services Authority to freeze Icelandic assets in this country. In the process, they froze the assets of a number of UK investment banks that were viable businesses, one of which, Kaupthing Singer & Friedlander, has gone into liquidation in both the Isle of Man and London. It was a misuse of that legislation. We could have a long debate—I do not plan to have it tonight—on how the Government have misused existing legislation for purposes for which it was never planned.

I should like to consider what some independent organisations have said about the proposals, because they have met with absolute, widespread dismay across the board. Inquest, for example, said:

“The proposals amount to a fundamental attack on the independence and transparency of the coronial system in England and Wales. They are fundamentally flawed...disconnected from legal principles; and have” come about

“without any consultation with stakeholders.”

That will generate anxiety among some of the families of people who have died in contentious circumstances, in particular in detention or the military.

Liberty, which has been fighting on these issues for 75 years, states:

Clause 11 introduces a provision which would gravely limit transparency, and increase executive control, over the inquest process. Clause 11(1) allows the Secretary of State to issue a certificate that an inquest will be held without a jury”.

It goes on to say:

“The removal of juries will effectively allow ‘secret’ inquests to take place following deaths that result from state actions.”

Liberty says that it is appalled at the Government proposals and that they go a long way to undermining the good that is in the Bill.

Photo of Maria Eagle Maria Eagle Parliamentary Secretary (Government Equalities office) (also in the Ministry of Justice), The Parliamentary Under-Secretary of State for Justice

Given the evidence from Liberty, does the hon. Gentleman accept that that organisation would consider his amendments to be outwith article 2 compliance?

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I accept that Liberty is not very keen on the idea of the Lord Chief Justice being put in the Bill. However, it did not say that it would rather have the Secretary of State taking on that matter. I accept that it is not happy with the amendment.

In its briefing paper, Justice makes it clear that it cannot go along with the clause. It states that

“the government appears to dramatically overestimate the extent to which the European Court of Human Rights (ECtHR) would allow the wholesale exclusion of the public and next-of-kin from coronial proceedings for the sake of some ‘substantial public interest’ in non-disclosure of sensitive material.”

Along with the other two organisations, it goes on to say that the clause will undermine public confidence.

The clock is ticking, Mr. Gale, and I am conscious that many hon. Members want to speak. However, I put it to the Minister that we need a great deal of convincing that the two ongoing inquests that have stalled could not have been allowed to continue using existing safeguards. We need to be convinced by Ministers that the benefits of the clause, which is draconian in its scope and wholly ill-thought-out in many ways, will outweigh the costs. I put it to the Minister that the cost of the damage that will be done to public confidence and trust in the coronial system will not outweigh the small benefit, and that at a time when the Government are suffering substantially from a lack of credibility in that area.

I will not support the clause unless the Minister can come up with very good reasons for the stalling of those two inquests and for not being able to accept the safeguards proposed in the amendments.

Photo of Roger Gale Roger Gale Conservative, North Thanet

Before we proceed, the time has come for me to make an announcement. The usual channels have indicated that we intend to adjourn at 7 o’clock tonight. The Committee will effectively not sit for a fortnight because it has decided not to sit on Thursday. We are beginning to play beat the clock. I mention that because most Committee members are present. I am minded to suggest to the usual channels that we consider sitting on the Tuesday evening when we return, as well as in the afternoon. It would be helpful to know whether that will happen before the House rises on Thursday so that hon. Members and staff of the House have adequate notice.

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

The more one reads the clause, the more extraordinary it becomes. Most of the debate has been about protecting information and, for example, ensuring that the names of agents are not revealed to enemies of the state. However, nowhere in the clause is sitting in private or in camera mentioned. The only effects of a certificate under the clause are that the coroner is replaced by a High Court judge and, far more importantly, that the jury is removed. This is an anti-jury clause more than anything else.

I do not deny that there is a need for some inquests in exceptional cases to be heard outside the public gaze. I do not deny what the Secretary of State said about how the public interest immunity procedure is not ideally suited to the inquisitorial nature of the coroner’s court; it was designed for the adversarial conditions of the criminal and civil courts. I do not deny either of those things, although it would be amazing if a public interest immunity certificate was not issued in the kind of circumstances that he mentioned.

I cannot understand why clause 11 is drafted in such dramatically broad terms. As the hon. Member for North-West Norfolk mentioned, it is not restricted to national security concerns, but goes into a great long  list of other possible applications, including merely relations with other states—in other words, foreign policy embarrassment—and the appalling catch-all of

“real harm to the public interest”, which, as far as I can tell, could mean anything. Furthermore, under the clause, the Secretary of State may simply “certify”, by fiat, “That’s enough, we don’t want a jury in this case.”

Returning to the central point, the clause is all about the exclusion of the jury. I cannot understand why we cannot have juries on inquests where national security is at stake, as we do in criminal trials. Juries sit on espionage and terrorism cases; they do not necessarily sit in public, but they still have a jury, which is a crucial institution, not just in the world of criminal trials, but in the coroner’s court and inquests. Especially in cases of a death at the hands of the state, such as the de Menezes and Mousa cases, the jury is the ultimate guarantor against a stitch-up. All this eloquent stuff about public confidence in the system is about knowing that ordinary people have heard the evidence and decided that it is not a stitch-up. That is also the point of human rights jurisprudence: the high-falutin’ stuff about article 2 and the question of sufficient public scrutiny to ensure accountability. In the end, that simply means that we can be reasonably confident that ordinary people have agreed that what went on was not a stitch-up. Why can we not design the system so that, in national security cases, an inquest jury still hears the case? What do we need to put in place so that that can happen?

Furthermore, there is the matter of the importance of the family of the deceased and of ensuring that they, or other interested persons, have as much access as possible to the hearing. We need to ensure as much as possible that, given the interests of national security, we do as much as we can to bring the family back in. Designing that system is the task in front of us. The clause just takes the easy way out—the line of least resistance—in giving the Secretary of State maximum discretion in getting rid of the jury on a whim. Under the clause, that is enough. If we really cared about the jury as an institution, and about doing everything possible to get the family back into the hearing, we would try much harder to design a more carefully graduated system, as we have with our new clause 10. Obviously, it is not perfect, but it is an attempt to show what could be done, if our aim is to preserve the jury at the heart of the inquest and to bring the family back in—even in national security cases, if possible.

New clause 10 states that the Secretary of State cannot just make a certificate, but must apply to the court. The Secretary of State must be satisfied that national security and only national security is at risk, and the court must be satisfied of that and also that hearing the case in camera is the only way to protect national security—that measures short of that would not work. The new clause does not exclude the jury. The effect of a certificate is simply that the hearing is in camera; the jury is still there, hearing the case.

The Secretary of State has said that one of the problems in this area is the risk to the lives of officers and agents of the security and secret intelligence services. How do we protect their identities? Somewhere else in  the Bill is an entire chapter on anonymous witnesses. It was controversial when it went through the House—there are some difficulties in it—but nevertheless it is in the Bill. The anonymous witness provisions in the Bill do not apply to coroners’ courts. They apply only to criminal courts. If on application by the Secretary of State, the court grants a certificate of the type referred to in the new clause, why can we not apply the anonymous witness provisions to that inquest? Would that not protect the identities of those security staff?

Another thing that we could do, were it thought better—I am not sure that it is—would be to have a High Court judge rather than a coroner hear the case. We could give the Lord Chief Justice the power to replace the coroner with a High Court judge, if the Lord Chief Justice considered that appropriate. What I do not like in clause 11 is the automatic replacement of the coroner by a High Court judge. I do not understand why that is necessary.

The third thing that we could do would be to security-vet the jury. That already happens in espionage and terrorism trials. The Attorney-General has issued guidance—in place since 1989, I think—on security-vetting juries in espionage and terrorism cases. We could simply apply that guidance to the jury in this sort of inquest. If we had those sorts of procedures, I cannot see why we should not continue to have a jury. Moreover, if in a case of this sort, with a security-vetted jury and anonymous witnesses—the agents of the state whose identity should not be revealed—being heard in camera or otherwise, there was no risk to national security, why not let the families back in at that point, if the coroner or the High Court judge thought that there was no risk to national security, given the measures that had been taken? We could, if we wanted to, meet the serious points that the Secretary of State has made about protecting national security and the identities of officers and agents, and still maintain the institution of the jury at the heart of an inquest.

As the hon. Member for North-West Norfolk said, there is some common ground between his amendments and ours. We are both looking for some degree of judicial control, and to restrict the conditions under which certificates relate to national security and nothing else. The combination of those two points is that the judiciary has some role in checking whether national security really is at stake. If we do not have that, national security becomes the Executive branch’s flexible friend, to be invoked whenever it feels that it does not want anyone to inquire into what it is doing.

So there is some common ground between us, but where we differ, crucially and unfortunately—I believe that this is the point that the Minister was trying to make to the hon. Gentleman—is that the Conservative amendments still exclude the jury, whereas ours do not. In the end, it comes down simply to this: does one accept that ordinary members of the public have a role in this kind of case? Are they ever to be trusted? Our starting point is that often they are more to be trusted than Ministers and judges, but the Government’s starting point seems to be the opposite.

Ordered, That further consideration be now adjourned.—(Ian Lucas.)

Adjourned till Tuesday 24 February at half-past Ten o’clock.