Clause 11

Coroners and Justice Bill – in a Public Bill Committee on 24th February 2009.

Alert me about debates like this

Certified investigations: investigation by judge, inquest without jury

Amendment proposed (10 February): 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’.—(Mr. Bellingham.)

Question again proposed, That the amendment be made.

Photo of Frank Cook Frank Cook Labour, Stockton North

I remind the Committee that with this we are taking 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 Edward Garnier Edward Garnier Shadow Minister (Justice)

At the end of our previous sitting, we discussing the amendments and the hon. Member for Cambridge had just said:

“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.”

He went on to say:

“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.”——[Official Report, Coroners and Justice Public Bill Committee, 10 February 2009; c. 224.]

The hon. Gentleman had also said that the central point of his arguments against clause 11 was the removal of the jury because that disconnected any form of democratic input into that judicial process. I agree that the use of a jury in such an inquiry, as in criminal cases, is hugely important. I also agree that the Government’s attitude is one to be deprecated and needs to be scrutinised with extreme vigour by Parliament as well as those outside Parliament. However, I disagree with the hon. Gentleman about the extent of the difference between his party and mine about what we need to do about the matter.

Having been a member of Public Bill Committees before, the hon. Gentleman will know that Opposition Members must use devices to put arguments before the Committee and to get the Government to answer them. The reason that he alighted on a difference is that we have used a different device to put the issue before the Committee. I hope that he accepts that what he said and what my hon. Friend the Member for North-West Norfolk said at the outset of his remarks are but parallel arguments aimed at the same target. For my part, I do not mind whether we vote on the hon. Gentleman’s new clause or the amendments tabled by the Conservative party during our proceedings, but I want the Government to answer the case that has been—and I hope will be—put to them. That case began with the speech of my hon. Friend the Member for North-West Norfolk and concluded on 10 February with the speech of the hon. Member for Cambridge.

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

I am glad to hear the hon. and learned Gentleman say what he has just said. As for votes, the most important vote is that on clause stand part. Only if we get rid of clause 11 will it become possible to insert a new clause such as the provision that we have tabled.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Now we have open agreement as well as implicit agreement. However, the main thing is that the public should know that the Opposition are deeply  opposed to the clause. Whether we achieve that through a vote on clause stand part, or through votes on new clauses or amendments, makes no difference—it is a procedural device. I hope that those who are listening to this debate in Committee and who may read of it later will understand our purpose.

The hon. Member for Cambridge is right that clause 11 is an anti-jury clause, but it is just as much an anti-open justice clause.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

Does my hon. and learned Friend not agree that clause 11(1) makes clear the motives: that the matter should not be made public, and that other measures would, allegedly, be inadequate to prevent the matter being made public? It does not refer to juries.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

No, clause 11 is designed to keep juries out. It is designed to keep the public out and to make the inquest process a secret one. I believe in open justice, and in the public having access to the issues in controversy in an inquest, as I do in relation to criminal trials. If there is no open justice, one cannot have confidence in the judicial and courts system. Although individual Ministers and Secretaries of State may be well motivated, once this sort of clause becomes available to be used by the authorities, they will use it. One has only to look at the hoo-hah at the weekend over the coming into force of certain parts of the Counter-Terrorism Act 2008 to see what happens.

Under section 76 of the Counter-Terrorism Act, entitled “Offences relating to information about members of armed forces etc”, it is now an offence, punishable by 10 years’ imprisonment, to elicit or attempt to elicit

“information about an individual who is or has been...a constable, which is of a kind likely to be useful to a person committing or preparing an act of terrorism, or” if he

“publishes or communicates any such information.”

That has been discussed over the weekend as giving the police the power to confiscate, or to delete, photographs taken of them.

An example was given in The Guardian correspondence column this morning, by a magistrate, of an offence that had taken place on the street that was not only photographed by CCTV but had been photographed on the mobile telephone of a passer-by. The police confiscated that mobile telephone and deleted the photographic evidence on the basis, presumably, that section 76 of the Counter-Terrorism Act applied and allowed them to do so. It was a silly and unnecessary thing for them to have done, but it is it the sort of thing that happens when authorities are given powers that may not be intended to be used in that particular way but which inevitably do get used in that way.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

Is my hon. and learned Friend not concerned that a photographic record of a police constable who was allegedly committing misconduct against a member of the general public—beating them up, for example—might also be confiscated on the ground that it might prejudice the constable’s personal security?


Thanks. I was illegally forced to have a smear test at the age of 13 in front of 4 laughing male policemen. I consider what they did to me that day to be rape. That's what they did is...

Submitted by barbara richards Continue reading

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Those sorts of dangers are precisely the reason why we should beware of such ill-thought-out legislation. It is ironic that we have a Government who seem to want to pry into our private lives. We have  CCTV, and identity cards, which require the creation of the national identity register into which our private information is deposited, and we cannot audit the information trail. We see all sorts of other ways in which the Government have reversed the balance of power and the relationship between the citizen and the state over the past 10 or so years. In this Bill, the Government are saying that the public cannot see what they are doing or have done when it comes to the deaths of our citizens at the hands of the agents of the state. They say, “Don’t worry, a certificate will be issued. If somebody thinks that the certificate has been issued improperly or wrongly or under some error of law, the affected parties can apply to the High Court for judicial review.” However, judicial review does not go into the substance of the issue; it merely considers the process.

As long as the Secretary of State has complied with the procedure that flows from clause 11, the High Court is unlikely to be able to do much about it. Lord Bingham, the retired senior Law Lord, wrote about it in TheGuardian on 17 February. [Interruption.] I know it is amusing when members of the Conservative party in pinstriped suits quote articles from TheGuardian, and when judges at the top of their tree are forced to express themselves through the columns of a newspaper that some people might think has a rather different point of view from theirs.


"judges at the top of their tree"

Yes, well some of these corrupt judges should be forced to get off their high horses and stop doing what the Holy Bible said not to do in Proverbs 17 v15!

Submitted by barbara richards

Photo of Alun Michael Alun Michael Labour, Cardiff South and Penarth

What was the nature of the personal constraint that leads to the use of the words “forced to”?

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The right hon. Gentleman is right to pick me up on the word “forced”—nobody held a gun to Lord Bingham’s head as he typed out his article. It was a rhetorical flourish. I am glad that the rhetorical and right hon. Gentleman, who has never, as the Americans say, “misspoken”, picked me up on that. Forgive me, Mr. Cook, if I ever accused a Welshman of talking too much or inaccurately. I trust I will never fall foul of that.

Let me quote what Lord Bingham said in his piece in The Guardian on 17 February. It is headlined, “Judges possess the weapon to challenge surveillance. The British are the most spied-upon people in the democratic world, but only the judiciary can restrain Parliament.” There is a perfectly good argument to be had about where the balance should properly lie between Parliament and the judiciary. Sometimes we get it right, and sometimes we get it wrong. I am concerned that the judiciary will not be able to exercise any proper balancing act or controlling power if clause 11 goes through, either as currently drafted or at all. In his piece, Lord Bingham said:

“If, historically, the record of British judges as defenders of personal liberty has been patchy, the tools at their disposal were rather limited. They could, in case of doubt, interpret parliamentary enactments on the assumption that parliament did not intend to infringe rights and freedoms; yet if the enactment was clear and unambiguous, they had no choice but to give it effect. But the rules of the game have changed - if not in the sense or direction that Tony Blair had in mind when using that expression - for parliament has, in the Human Rights Act 1998, instructed the judges to protect the main rights and freedoms enshrined in the  European Convention on Human Rights, providing a much more comprehensive framework of principles than judges have been able to invoke before.”

A whole raft of arguments based on article 2 of the European convention emerge out of the current clause 11. A further set of arguments emerge out of clause 11(2)(c), in which we are told that the Secretary of State may cite as one of the reasons behind his certificate to hold a secret inquest,

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

That could mean anything and nothing, and it seems that Lord Bingham is entirely right when he says that out of the Justice Secretary’s Human Rights Act, which he introduced as Home Secretary in 1998, judges have been instructed to protect the main rights and freedoms enshrined under the convention. I have a suspicion that we will see tears before bedtime if clause 11 goes on to the statute book, because it will provide opportunities for arguments under the convention via the Human Rights Act, which will lead to the Government having to explain why they passed this Bill in this form. It cannot be said that they have not been warned—not just by members of the Committee, but by other commentators as well.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons) 10:45 am, 24th February 2009

On my hon. and learned Friend’s point about the possible interpretation of subsection 2(c), is it the case that we may have a similar problem regarding the lack of definitions for “substantial” and “real”? Does “real”, in the current context, mean a substantial, notifiable, obvious and definite threat, or does it mean something more than just insubstantial, as they are two different concepts?

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Indeed, they are, but I feel that we will be boxed in by the power of the Secretary of State to self-certify. If he said, in a memorandum to the court, that there was a real harm to the public interest through the exposure of certain evidence or processes to the public gaze, then, just as in the Court of Appeal case last week regarding Binyam Mohamed, the court would be reluctant to go behind that certificate. If we let the clause go through, we are voluntarily giving the Secretary of State a power to restrain the courts from policing him. As democrats, and as people who respect the proper balance between the different elements of the constitution, we should be extremely careful before allowing any Secretary of State, of any political party, those sorts of powers. As night follows day, we will end up in the position similar to that under the Counter-Terrorism Act 2008, as I described, in which perfectly innocent and sensible activities are suppressed at the say-so of a police constable—it is not the same, but it is of similar character. I urge the Committee to be extremely cautious when allowing the clause, as it is currently drafted, on to the statute book.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

I have listened carefully to the hon. and learned Gentleman. Is he saying—I would agree with him if he was—that the problem lies entirely with subsection (2)(c)? If so, does he accept that the reasons set out in subsections (2)(a) and (b) are clear and acceptable?

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The right hon. Gentleman is right that subsection 2(c) ought to be excised, but that is not the only cause of complaint. As is clear from the arguments of my hon. Friend the Member for North-West Norfolk and the hon. Member for Cambridge, there are much wider and deeper concerns—although the right hon. Gentleman highlights a particularly good reason for not letting the clause go through.

It seems that we are worried about how the Secretary of State can self-certify, and be policed by the courts only under judicial review. It also seems that the removal of the jury is a cause of great concern, and that we are giving to the state—this is not a party political point—powers over the citizen that should be wrested from the citizen with only the greatest reluctance and at times and in circumstances of particular exceptionality. It seems that none of the arguments that I have heard so far from the Government, trailed in advance of Committee, seem to meet the point, but I accept that the Minister will respond to the arguments raised against the clause so far.

I do not shrink from admitting that over the course of this weekend, I read a new briefing from Inquest, which adds to the one that it gave earlier in the process of the Bill. I hope that the Minister has read the briefing, and is in a position to respond in detail to the cogent points that are made by the brief. If she had, she would realise that there is a mass of rational arguments, which should cause great concern, and lead her to think again about the clause. The brief extends to 15 pages, and I would be testing the patience of the Committee to recite it all. The issues in clause 11 are some of the most important that we must deal with as legislators during the passage of this extraordinary Bill. It may well be that other clauses dealing with coroners, although important, do not hold the same concern for the relationship between the state and the citizen as clause 11 does.

As my hon. Friend the Member for North-West Norfolk said at the beginning of our debate on 10 February, the Government, through the Secretary of State, made it clear that there are two cases that are so contentious or secret that, if there are to be inquests dealing with such deaths, a provision such as clause 11 would be necessary. The Secretary of State rather beguilingly said, “Well, if you can come up with something better than clause 11, I would listen to it.” However, the short point is that the Government do not appear to want to move from the broad position that the Secretary of State should have the ability to self-certify, that the policing of that certification should be by judicial review only and that that should be the only involvement of the court—inquests of this nature, for the reasons set out in subsection (2), should be held out of the public gaze, under the chairmanship of a High Court judge.

If there are only two cases, and the Inquest brief mentions only one—

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Does it mention both? I shall come back to that. Inquest mentions the case of Azelle Rodney in the following terms:

“Azelle Rodney died in April 2005 after a police operation in north London in which he was shot seven times—the circumstances surrounding his shooting had nothing to do with counter terrorism”, or national security, but involved criminal allegations.

“Azelle was shot after the car he was in was ordered to ‘hard stop’ after being under police surveillance for more than three hours”

in Edgware.

“In July 2006 the...CPS announced that there was insufficient evidence for a successful prosecution. After the CPS decision, the family was told by the coroner that the full inquest could not be held because large portions of the police officers’ statements had been crossed out under the Regulation of Investigatory Powers Act...2000, which covers information obtained from covert surveillance devices such as telephone taps or bugs. Lawyers acting for the family of Azelle Rodney threatened to take the government to court to show that RIPA was in breach of the Human Rights Act 1998

It is not controversial, in so far as it has been said before, but Inquest and a lot of us believe that clause 11 is a disproportionate and draconian measure. It falsely equates the existence of material that should not be made public with the need to remove a jury and give the Secretary of State unprecedented and wide-reaching powers to intervene in the investigation of contentious deaths.

Photo of David Kidney David Kidney Labour, Stafford

Is the hon. and learned Gentleman identifying himself with the strong language that he has just read out from Inquest? When the hon. Member for North-West Norfolk presented the Conservative amendment about a High Court judge giving or not giving a certificate to the Secretary of State, I thought that the hon. and learned Gentleman was with the Government on the public policy objective, but he now seems to have identified himself as totally against.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

No, the hon. Gentleman is over-interpreting what I have said. My hon. Friend and I are both concerned that the public should have access to the coronial system and about the device that the Government wish to use in order to protect national security and information that ought to be kept secret. In parenthesis, he, the hon. Member for Cambridge and I are not so naive as to think that all secret, security service information can be revealed to the public by a coroner’s court inquest. However, as the hon. Member for Cambridge said with perfect common sense at the previous sitting, espionage trials at the Old Bailey sometimes include juries, juries that are vetted, and counsel for both the Crown and for the defence who have been vetted. Indeed, counsel for the defence is provided by the Government or the Crown Prosecution Service with secure safes in which to keep sensitive material, so that it does not fall into the wrong hands.

We have existing procedures in the criminal justice system that make justice possible, and that are, yes, partly in private, but that are much more open than the system that the Secretary of States wishes to implement under clause 11. If I can propose something more akin to the system used by the criminal courts when dealing with espionage and other cases in the coronial system, I hope that Labour members of the Committee will come some way towards me. By voting against clause 11 stand part and in favour of the amendments, we shall have a better and more sensible clause for discussion on Report or in the other place when the Government have had more time to think about matters.

There are huge implications under article 2 of the convention. It is well established that, whenever state bodies or agents bear responsibility for a death, a  procedural duty to investigate the death arises under article 2, but clause 11 does not fulfil those obligations. I am interested to hear the Minister’s advice about section 19 approval by the Secretary of State on the front of the Bill. That statement has almost become a pro forma. It is rubber-stamped on the front of all Bills, but it strikes me that sections of the Regulation of Investigatory Powers Act 2000, this Bill and many others that I have had the misfortune to have to read during the past few years are in flagrant breach of the Human Rights Act and the convention. Some of those pieces of legislation have been found to be so by our higher courts, yet the Government have carried on busily stamping section 19 approval all over their legislation.

In respect of article 2 in relation to coroners and the case of the Crown ex parte Amin v. Home Secretary in 2003, Lord Bingham in his capacity as a Law Lord listed the purposes of an article 2 compliant investigation. He said that it was, first,

“to ensure as far as possible that the full facts are brought to light”; secondly,

“that culpable and discreditable conduct is exposed and brought to public notice”; thirdly,

“that suspicion of deliberate wrongdoing (if unjustified) is allayed”; fourthly,

“that dangerous practices and procedures are rectified”, and, fifthly,

“that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”

He said that

“Given that the ECHR requirement is for a public investigation, for purpose 1 to have any meaning, ‘brought to light’ must be interpreted as exposed to public scrutiny”.

I return to the intervention by the hon. Member for Stafford. There will be circumstances in which the full facts cannot be brought to light, which I touched on when I referred to the criminal trial process and espionage trials. The full facts need to be brought to light, but that might not be covered by the expression, “the full glare of the public domain”. By having judges sitting in private without families, interested parties and the public having much in the way of access to what goes on, we are allowing the Government to make a huge mistake. If we think that that is compliant with article 2, we have either not read the article and understood it, or we have not followed the judgment of Lord Bingham in the case of Amin. It is strange that we are passing yet another restrictive law at a time when the public’s attention is focused on the delicate relationship between the state, its agents and the citizen. I want a public examination of the core facts surrounding the circumstances of a death. We should not allow anything that is counter to the public need to ensure that deliberate wrongdoing is suspected.

The de Menezes case has obviously been the subject of huge public controversy. A number of Committee members have asked—either rhetorically or in direct interventions, on Second Reading or during the course of these proceedings—whether clause 11 would cover a de Menezes-type inquest. It is clear that the procedure  used in that inquest did not require a clause 11-type investigation. There, we had a High Court judge sitting as the coroner, but we also had a jury and witness-anonymity orders. A number of the police officers who were implicated in the death of the deceased were able to appear by letter as opposed to their full name, and they were allowed to appear behind screens and were not visible to press photographers or journalists, as far as I can recall. However, they were visible to counsel appearing at the inquest, and if not to the family of the deceased, then to a supporter of the family of the deceased. There was a form of openness allied to sensible precautions to protect the identity of police officers who conduct secret work.

Sir Michael Wright, the retired judge who conducted the inquest, dealt with applications for personal public interest immunity. He also dealt with a number of other procedural applications, which afforded those who needed their identities or particular information to be kept secret to be satisfied. The jury reached a conclusion—whether we agree with that conclusion or not is neither here nor there—but the procedure was such that there was public accessibility, and the family of the deceased, which was desperately upset and deeply dissatisfied by the inquest’s conclusion, were at least there and were able to take part. They would not be able to do that in a clause 11 inquest. I therefore ask the Government to re-examine the de Menezes inquest to see whether there are lessons to be learned before they charge into passing clause 11 and leading themselves into yet further trouble.

I will not say anything about intercept evidence other than to mark out that issue as one that the Government need to deal with. I also draw attention to a proposal made right at the end of the brief from Inquest, which deals with suggestions made by my noble Friend Baroness Miller in the other place during the passage of the Counter-Terrorism Act 2008. She suggested that section 18 of RIPA should be amended to allow RIPA material to be disclosed solely to the High Court judge conducting a secret inquest, and possibly to counsel to a secret inquest.

I do not propose to discuss that in any detail now, as it is not strictly germane to clause 11 and is dealt with in approach to another piece of legislation. However, I urge the Government to be a little more inventive and not to fall into the default position that they always fall into of saying, “our first stop is secrecy and only if we are pushed and pushed will we allow public, or other, access into these sorts of inquiries”. We know of two cases which have been stalled because the Government will not allow certain evidence to be given into the deaths of the man I first mentioned and another person, whose name is not yet public.

Photo of James Gray James Gray Conservative, North Wiltshire 11:00 am, 24th February 2009

My hon. and learned Friend missed the second paragraph of the Inquest brief, which names the second inquest regarding the case of Mr. Terry Nicholas, a 52 year-old black man who was shot by the Metropolitan police in Hanger lane in 2007. Inquest mentioned both cases in the overview.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am grateful to my hon. Friend. That paragraph states:

“INQUEST is also working closely with the lawyers for the family of Terry Nicholas, a 52 year old black man who was shot by MPS officers at Hanger Green, London W5, on the evening of 15 May 2007, after he had left the rear of restaurant premises. In October 2008, it emerged that the inquest touching on this death was also stalled because the inquest could not receive sensitive material and that the Government proposals in the CTB regarding secret inquests were supposed to make it possible to resume the inquest into this death too.”

We now know the identities of the two unfortunate people who will be the subjects of the inquest. As I understand it, the Government—I hope that the Minister will tell me that I am wrong about this—are basing the clause on those two cases, and the possibility that similar cases may happen in the future. But the numbers are tiny, and the Government are building a vast obstacle to public acceptance on the basis of two cases, which, with common sense—as deployed by Sir Michael Wright in the de Menezes case—could be overcome.

I urge the Government to think carefully about the clause, to withdraw it before we attempt to vote it down, and to come back with something rather more sensible, either on Report or in the other place. The Opposition—I think I can speak for both Opposition parties in this Committee—are not against all forms of confidentiality. We accept that there will be occasions when sensitive information must be kept away from families and the wider public, but mechanisms and procedures that are already available make the clause wholly unnecessary and deeply counter-productive. Therefore, I urge the Minister to take the combined view of the Opposition seriously, because we are here to help.

Photo of David Kidney David Kidney Labour, Stafford

I support the Government’s public policy objective in the clause—I can even vote for some of the proposed restrictions in the clause, and I am happy to support the Government in a clause stand part vote. But that is not the same as saying that I agree with the clause, and I draw attention to the bit that I do not agree with. As is my way, I will not dwell on my negative views, but will put forward a positive suggestion of a way forward.

As the hon. and learned Member for Harborough has said, we are not so naive as to think that all national security and public interest information that is collected by the state should be put on public display in courts of law or at inquests. In the current case, we have two real examples of inquests that are not going forward at the present time, because of an inability to get around the problem of holding the inquest and getting to the truth of how and why somebody died without disclosing that kind of information. So, there is a problem, and we have to address it.

We are not debating a one-stage process, but a two-stage one. The first stage is certification of an issue of national security or public interest. The second is the rules for running an inquest to comply with such a certificate—in other words, to ensure that matters that should not be in the public domain do not get there. The first of those two stages, public interest and national security, is the responsibility of the Executive. The second—how courts and proceedings are run—is the responsibility of the judiciary. The clause rolls together those two stages. Once the Secretary of State gives the certificate, we set out, in the clause, the things that follow; in other words, the High Court judge sits as the coroner, there is no jury, and parts of the inquest are held in private.

It is convenient for us to give debates titles, so that we understand what we are talking about. The current title is “secret inquests”, but we should not lose sight of the fact that the High Court judge running such an inquest would hold most of it in public, but the bit that we are talking about would be held in private.

The issue concerns how one protects relevant material that should not be disclosed. The hon. and learned Gentleman talked about the naivetÃ(c) of people who think that all information should be disclosed. Just to hammer it home, the briefing from the Commission on Equality and Human Rights states:

“The Commission appreciates that non-disclosure of sensitive material is sometimes necessary in the interest of national security and to protect the public interest.”

When we took evidence from Liberty, Isabella Sankey said:

“Often there are very high stakes in such proceedings. Our point is that safeguards are already in place to ensure that certain individuals are not identified and that various bits of information are kept from the jury or the public when such inquests are held.”——[Official Report, Coroners and Justice Public Bill Committee, 3 February 2009; c. 61, Q133.]

That is an acknowledgement of the principle.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

Does the hon. Gentleman agree that the fact that, as Liberty said in its evidence, very high stakes are involved in such cases belies the argument that the Government adduce from time to time that such cases are unimportant, because they make up only 1 or 2 per cent. of inquests. Such inquests are exactly the ones on which both the general public and the media will focus.

Photo of David Kidney David Kidney Labour, Stafford

I have not heard Ministers say that because juries are only empanelled in 2 per cent. of inquests, jury inquests are not important. Everybody appreciates that the most important 2 per cent. of inquests get a jury.

Some say that that certification process, which I think of as stage 1, should pass from the Secretary of State to a High Court judge. That is absolutely wrong in principle and in practice, which is why I support the Government and not the Opposition amendments. In principle, the Executive have responsibility for national security and public safety. The top priority of any Government is to keep us safe, and national security and the public interest are part of keeping us safe.

The practical point is that the Executive collect all the intelligence. They assess it, they interpret what it means, and they have the knowledge, expertise, context and public accountability to do that job, which judges do not have.

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

The issue is not who has the information, but whether there is any control over the decision that a matter is one of national security. If there is no judicial control over that decision, national security simply becomes a way in which the Executive can avoid public scrutiny, so it cannot just be either the Executive or the judiciary—it has to be both. It is not a question of the extent to which the judiciary will defer to the Executive’s expertise, nor a question whether the judiciary should be excluded altogether.

Photo of David Kidney David Kidney Labour, Stafford

I agree. When the hon. Gentleman hears my suggestion, he will hear that I still see a place for judicial review, just as there is now of the certification part of the two-stage process. That means the judiciary  getting involved in whether the Government are behaving properly in giving the certificate in the first place, which I would preserve.

On the other hand, the Executive’s accountability for their judgment includes not only judicial accountability, hence the judicial review point, but public accountability, which I argue is via the legislature, so the legislature’s role starts now. When we get the legislation right, it continues to hold the Government to account for their decisions.

The legislation is currently drafted too widely. The grounds on which the Secretary of State can conclude that a matter should not be in the public domain are too wide, which is the issue with clause 11(2)(c), which goes beyond national security and public interest to include very general crime-fighting and witness protection. Clearly, that is wrong, and we need to narrow the grounds on which the Secretary of State can give a certificate.

Photo of James Gray James Gray Conservative, North Wiltshire

I agree. Will the hon. Gentleman therefore accept our amendments 42 and 43, which specifically say that there should be only one reason for allowing certification, namely, national security? That is quite beside the question of whether we will vote for stand part. The main thrust of our amendments is that only national security is a good reason. Will he join us in supporting the amendments?

Photo of David Kidney David Kidney Labour, Stafford 11:15 am, 24th February 2009

No, those grounds are too narrow. The hon. Gentleman was not listening when I said national security and public protection. “Public protection” can be drawn too widely and end up including crime-fighting, but it must be read in the context of national security issues. However, public interest is slightly different from national security, and it is the two together that are valuable and that should be preserved.

The clause is too wide and too prescriptive in proposing a High Court judge as coroner, no jury and parts of the evidence being taken in private. It should separate the certification, which is properly the role of the Secretary of State and should occur on the narrow grounds that I have explained. As for the changes to the rules for running the inquest to which the certificate relates, the clause should provide a menu, not a single solution, of responses to the certificate, and the judiciary, not the Executive, should rule on the selection of the options from the menu.

Under my suggestion, the Secretary of State would issue a certificate that a matter should not be in the public domain because of national security or public interest, and it would be subject to challenge by judicial review, as in the present law. In any event, the Secretary of State would give the certificate to a High Court judge. I would be happy for the Secretary of State to give the judge, in addition, the Secretary of State’s proposals for modifying the running of the individual inquest from the menu of options. For example, in the most serious cases, the Secretary of State might say, “I am giving the certificate. That means that it should be a High Court judge as coroner, no jury and some bits in private.” However, the judge might say, “Well, I am looking at what the law says, and I have a set of  options.” I assume that we want the law to say that the judge should choose the options that make the least change to existing practice in every other inquest, so the options would be in rising order of seriousness, and the judge would then select from them.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

By logical extension of that argument, next time we have a serious espionage case, the Foreign Secretary or Home Secretary ought to go to the court and say, “You will conduct the trial in this way, select from a number of options”, instead of, as currently happens, the Crown Prosecution Service going before the court and saying, “This information is sensitive or secret, could you therefore devise a procedure for this particular element or part of the trial that would not allow that to happen?”

Photo of David Kidney David Kidney Labour, Stafford

The hon. and learned Gentleman is keen to refer us to the equality of criminal cases, but there is a difference, which the Secretary of State gave on Second Reading and which I will repeat in a moment.

The hon. and learned Gentleman is describing what happens now, with the PII route. The prosecution goes to the judge, with the PII certificate, and says, “We think that some things cannot be heard in public, so these things should happen.” In effect, the judge then says yes or no and chooses from the existing options under the criminal justice law in this country. I suggest the same for coroner’s inquests. Whereas some of the briefings and arguments say that an inquest exactly equates to a criminal trial and, therefore, the usual PII procedures should apply, I am saying that inquests are something different, so a variant on the PII procedure should apply. That is what my amendment suggests.

Crucially, the judge decides whether to modify the usual inquest rules and, if so, in what ways. We would have regard to all the issues argued about—security vetting of the jury, holding parts in private, banning reporting of some parts and witness anonymity—but I would argue that in the most serious cases, which the hon. and learned Gentleman has said occur only once or twice in a number of years, the other options that the Government already have in clause 11 should be part of the menu. The High Court judge might say, “Yes, this case is so serious that these are the options that I have had to choose.” In that way, we would reinforce the roles of the Executive versus the judiciary and reinforce public confidence in the system by getting past that obstacle. Those are my suggestions, which I put forward for the Minister’s consideration. My actual vote at the end of the debate will depend in part on the warmth or coolness of the assurances that I receive.

On Second Reading, my right hon. Friend the Secretary of State acknowledged that the clause may need attention, so I hope that my suggestion will be considered.

He reminded us that there is a difference between a criminal prosecution and an inquest, which is that an inquest has to be held and has to identify the cause of death and why it happened. In a criminal case, if the state thinks that some information might come out that it would not want to do so, the state can choose not to rely on that information in evidence, but to have a go for the conviction without it, or in a more severe case choose to abandon the prosecution and not bother at all. Those are serious choices to make, if the person on  trial is dangerous, but nevertheless the state has the option to make those choices, but there is no such option with an inquest, which must take place.

That is a significant difference, which the Secretary of State was right to discuss on Second Reading. Some people have run that argument together with his suggested solution—clause 11—and said that it is unfair, unjust, against article 2 or whatever.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I trespass on legally thin ice perhaps and seek the hon. Gentleman’s advice. The situation may not be as absolute as the Secretary of State has indicated. For example, in cases involving the parole of existing-sentence prisoners, there would be judicial hearings before a judge and, in certain cases, even the special advocate procedure can be used, because of the extreme sensitivity of such cases. Does that affect the issue at all?

Photo of David Kidney David Kidney Labour, Stafford

I thank the hon. Gentleman for his helpful intervention, which shows that there are other situations in which such considerations are wrestled with all the time. I am grateful for that, but I have put forward other suggestions.

As a footnote, for completeness, the Commission for Equality and Human Rights briefing and Liberty’s evidence to us contemplate situations in which evidence is withheld from an inquest. Even for an inquest held in public and with a jury, the withholding of information has problems of its own. The jury is charged with coming to a conclusion about what caused the death, and we must consider the effect on that conclusion of some evidence being withheld. The Coroners Society has pointed out that it is sometimes a difficult decision to say, “The inquest needs to go ahead with all the evidence, but not all the evidence can be disclosed to the public”, or that, because some of the evidence should not be disclosed, it should be withheld from the jury, which would carry on and make a decision without it. They are imperfect solutions and sometimes it would be right to do one rather than the other, but there is no absolute. My proposal is a variant on clause 11 and new clause 10, and it is a sensible way forward. I look forward to seeing whether the Minister agrees.

Photo of Jennifer Willott Jennifer Willott Shadow Secretary of State, Shadow Chancellor of the Duchy of Lancaster

Thank you, Mr. Cook. I have never been mistaken for my hon. Friend the Member for Cambridge before. I want to discuss amendment 125, which relates to a slightly different point but which is tied to the openness and publicity surrounding an inquest.

In the draft Bill, the Government proposed to restrict the reporting of certain details at an inquest. When the Government consulted, significant concerns were raised by a number of different organisations. They said that they had dropped the proposals to restrict reporting of certain details, because of concerns about press freedom and so on. Instead, the Government decided to expand the media code to ensure the sensible reporting of inquests, including the more sensitive details, which was done through a media code rather than laying out restrictions in statute.

My concern, which is picked up by amendment 125, is that clause 34(2)(e), which I suggest removing, looks like the same proposal, in that it restricts the reporting by the media of various details at an inquest. In fact, it looks even broader than the Government’s initial proposal. Under the original proposal, which was later dropped, the name of the deceased or an interested person, or information that could lead to the identification of the deceased person, could be withheld. However, the Bill refers to the “name or other matter”, which is significantly broader than what was originally proposed. Rather than the name or other matter not being published, it refers to its not being disclosed, which again is broader than the original proposals.

I tabled the amendment to receive clarification from the Minister about the intention of the subsection, given that the Government were clear when they dropped their original proposal that such a power needed to be placed through the voluntary media code rather than legislation. They accepted the argument that it was overly restrictive of press freedom. If the Government’s intention is not to reintroduce the original proposal, will the Minister explain what can be done to ensure that it does not lead to exactly what was proposed originally except that there would be even broader restrictions on press freedom than under the draft Bill?

Amendments 110 and 109 relate to secret inquests in Northern Ireland. I am sure that the Minister is aware of the strong view that has been expressed by the Northern Ireland Human Rights Commission about the extension of the provisions to Northern Ireland. It states that any

“extension of these proposals to Northern Ireland would be viewed as bad faith by the British Government and could seriously jeopardise progress on what is a very politically sensitive issue.”

That is incredibly strong language for a body that is usually more measured. There is strong public opinion and concern in Northern Ireland about certified inquests. Following Ministry of Justice questions at which the issue was raised, the Secretary of State wrote to hon. Members saying that it would not apply to legacy cases and, thus, not to cases that are still awaiting inquests on deaths still outstanding from the troubles.

Given the strength of feeling in Northern Ireland among both the public and those at the Human Rights Commission, and the fact that circumstances in Northern Ireland are different from those in the rest of the United Kingdom, the need for the situation and the judicial process to be absolutely transparent and open is more apparent there than almost anywhere else in the UK. If that does not happen, it could lead to all sorts of political issues as well.

Photo of James Gray James Gray Conservative, North Wiltshire

By what they have said this morning, the hon. Members for Cardiff, Central and for Stafford have shown that their hearts are very much in the right place. All of us are fundamentally opposed to clause 11, although our solutions to the illiberal aspects of the provision might be different.

I apologise to the Committee for not having been present at the two previous sittings and therefore not having been here for the start of the debate on clause 11. I was in Afghanistan, which my hon. Friend the Member for Daventry kindly mentioned in my absence. While I was there, two soldiers were killed—Lance Corporal Kingscott from 1st Battalion the Rifles and Marine  Darren Smith of 45 Commando. Both their bodies are being returned to the UK today through Wootton Bassett in my constituency. The inquests will be carried out by the excellent Wiltshire coroner, Mr. David Masters or his immediate successor. He has built up significant expertise in military inquests, alongside the Oxfordshire coroner. While thinking of those two young men, I wondered whether the circumstances surrounding the deaths of Lance Corporal Kingscott and Marine Smith would be allowed to be made public, if clause 11 were accepted.

I will come back to that, with particular reference to military inquests, in a moment.

The general flavour of the debate so far this morning indicates that the terms of clause 11 are excessively wide. On Second Reading, the Secretary of State made it plain that he was worried about only two inquests. He reiterated the point in a private conversation afterwards that he was only bothered about two particularly sensitive inquests and that this wide-ranging clause had been introduced because of them. The two inquests that I have mentioned were referred to by my hon. and learned Friend the Member for Harborough and were raised by Inquest. It seems extraordinary to introduce such a wide-ranging clause, which would not necessarily be used by this Government, but which might be used by subsequent, more malign, Secretaries of State in ways in which we do not intend it to be used.

Amendments 41 to 43 propose that the reasons that the Secretary of State can use for certifying the privacy of the inquest should be restricted to matters of national interest. It seems perfectly obvious that the way in which the clause is drafted, allowing privacy of inquests in the interests of the relationship between

“the United Kingdom and another country”, could mean virtually anything. Any trade matter, for example, would affect the relationship between the United Kingdom and another country. Another reason is “preventing or detecting crime”, which applies to preventing or detecting any crime at all—it could be preventing, not even detecting. We could have a private inquest in the interests of preventing crime for heaven’s sake. What sort of crime—road crime, traffic crime, parking offences, who knows? Will we have private inquests in order to avoid parking offences becoming public?

A further reason is

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

Of course, we have to protect the safety of a witness or other person, but to make secret information in an inquest which ought, by definition, to be available to the public in order to protect the safety of a “witness or other person” seems extremely wide.

Photo of David Kidney David Kidney Labour, Stafford 11:30 am, 24th February 2009

Before the hon. Gentleman gets too carried away about the extent of the clause, I refer him back to clause 11(1)(b), which states that the Secretary of State must be satisfied that

“no other measures would be adequate to prevent the matter being made public.”

There are many cases that that would not touch.

Photo of James Gray James Gray Conservative, North Wiltshire

That is a misreading of the Bill. The hon. Gentleman is right in saying that clause 11(1)(b) states that the Secretary of State may make such a certificate only if

“no other measures would be adequate to prevent the matter being made public.”

In other words, the clause starts with the presumption that the matters must not be made public and, if the ways in which the matter cannot be made public are not adequate, then the Secretary of State has an additional power to keep them secret. It is not a question of such matters mostly being available to the public; the clause lays down that the Secretary of State either already has powers to keep them secret, or that these measures will give him extra powers to keep them secret. My argument is that they should not be kept secret—they should be available to the public. That is one of the most fundamental principles in coronial inquests at the moment.

I say that for three reasons. The first reason involves the interests of the public. It seems perfectly obvious that the public need to know why people die—in particular, at the hand of the state. Secondly, there may well be reasons why something went wrong at the hands of the state and ways in which that could be corrected. A coroner may come up with conclusions—as David Masters and the Oxfordshire coroner have done in military inquests—to show that things went wrong. If such things were heard in secret, there would be no way of knowing whether the state had corrected them. Thirdly, the family of the bereaved need closure, and they get closure by having an entirely public inquest. If that inquest is in private, and the family, or representatives of the family do not know why the person in question was killed, can they ever get closure? For those three good reasons, it seems that most matters should be in public. There may be some extreme cases of national security where some degree of secrecy should be allowed, and I shall come back to that.

I shall now focus my remarks on military inquests. The arguments can also be applied to inquests into people who have been killed in prisons or wrongly killed in other areas, with regard to the public security or public safety—police shootings and so on come under the same category. My own particular interest and expertise, such that it is, concerns military inquests. Virtually every military inquest would fall under the description of the clause. Almost any death in a theatre of war or on a battlefield could be deemed to have national security implications or to place the interests of the Government or our relationship with an overseas country at the heart of consideration. I cannot think of any military inquest that would not fall under the clause—if the Government disagree with that, perhaps they can raise it in a moment.

Regarding the two young soldiers—one was shot by the Taliban, I think, while the other was blown up by a roadside bomb—aspects of their deaths could theoretically harm the national interest. Should that patrol have been at that place at that particular time? Who were the enemy? Who shot them? Did we have adequate protection for our vehicles to prevent them from being blown up? With such low-level deaths—I do not mean that in a bad way; I mean the deaths of ordinary soldiers on a battlefield—there are all sorts of ways to argue that an inquest would be against the public interest.

Boring down further, I give the example—

Photo of James Gray James Gray Conservative, North Wiltshire

I will happily give way to the Minister after I have given the example. The inquest into the crash of Hercules XV179 was carried out this year in Wiltshire. That plane was shot down in Iraq towards the beginning of the war, resulting in the deaths of 10 servicemen. The coroner concluded that there were a number of reasons for the incident. First, the Americans had not shared with us sufficient intelligence about enemy activity in that area immediately before the flight. Secondly, he took the view that had foam suppressant been fitted into the wing tanks of the Hercules, there would have been a significant chance that it would not have been shot down. The Government have been required, as a result, to spend £750,000 a plane on 40 or so planes. Thirdly, there were a number of other matters—some of which were excised and not made public—where the military or the Government had failed, and, to some greater or lesser degree, contributed to that particular crash. Incidentally, the Americans refused to come to that inquest to give evidence. Interestingly, they took the view that the matter was too sensitive, and despite the fact that the coroner tried to get them to come, they refused to give evidence.

If the Bill had been in place at the time, it would be a simple matter for the Secretary of State to rule, under such a licence—and for the judge to go along with it—that such matters are of great national concern. Such matters might include the intelligence relationship between the US and the UK—if we had that inquest in public, the US might well not share the intelligence in the future. They might also concern costing the Government a very large amount of money to fit the foam suppressants on the wing tanks. The Hercules was on a special forces flight involving a number of people carrying out a number of duties that I will not mention. The Government could easily have argued that the matter was one of grave national concern and that if it went before David Masters, national security would be compromised.

I am glad that that did not happen, and that the inquest into XV179 was heard in public. I am perfectly content that the current Secretary of State would have allowed it to be heard in public, and when the Minister intervenes, I am sure that that is what she will say. But what concerns me is that some malign Secretary of State 20, 30, 50 or 100 years from now, will see a case such as XV179 and say: “Thanks for this excellent Bill. We are now going to hear the inquest in secret.” That is why I fundamentally oppose the whole principle.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I am grateful to the hon. Gentleman for giving way. I wanted to stop him before he went down too far that particular road, simply to say that he is wrong to push the argument on the basis of military inquests, because at the moment all military inquests are held without juries. Where information can be redacted, it is, and that is possible in relation to the provision about the anonymity of witnesses, so the provision will not affect military inquests in the way that he has described.

Photo of James Gray James Gray Conservative, North Wiltshire

The Minister makes a perfectly good point. That is the point that my hon. and learned Friend the Member for Harborough made in a more general sense,  namely, that there are perfectly good procedures in place at the moment to make sure that matters of national security remain secret. Of course, there are no juries in military inquests and large parts of the evidence are redacted, although redacted inefficiently, so it is perfectly possible to remove the redaction. When the redaction was removed in those cases, it turned out that a lot of the information that was redacted was not the slightest bit secret at all, so that is another example of the state going too far to keep things secret that they should not have done. However, the Minister’s point is a good one. The state has perfectly good ways of making sure that things that should not be made public are not made public. My hon. and learned Friend the Member for Harborough and my hon. Friend the Member for North-West Norfolk made such points extremely well in an earlier sitting.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

The hon. Gentleman has said that he fears that a malign Secretary of State might in future use the provisions of clause 11 to prevent an inquest being held with a jury in a case in which a jury should manifestly be involved. Is he overlooking the fact that that malign Secretary of State would be subject to judicial review, and if a judicial review were to consider that subsection (1) or (2) had not been taken into account by the Secretary of State who was acting from malign purposes, it would almost certainly overthrow that decision?

Photo of James Gray James Gray Conservative, North Wiltshire

The right hon. Gentleman is right to pick me up on the loose use of the word “malign”. He is quite right in saying that if the Secretary of State were bad and wicked and doing things for the wrong reasons, the High Court judge would correctly pick that up. My example was not malign, but it could arguably be in the national interest. At the moment, the inquest would not be heard in private, but under this Bill it would be. The right hon. Gentleman is right to pick me up on the word “malign”. However, a merely over-sensitive or over-cautious Secretary of State, perhaps in a time of war, would say, “This is a very delicate matter. We must hear this in private and in secret” and a judge would be persuaded to agree. We should not put something into statute unless we are certain that under no circumstances will it be used in a way that was not intended.

That is why I agree with the amendments that remove the other categories in clause 11, reducing the effect of the provision to only the most grave and serious matters of national security. If the Government choose not to accept our amendments, I hope that people who are concerned about the illiberal nature of the clause will vote against it at stand part, as happened during the passage of the Counter-Terrorism Act 2008, when there was a significant rebellion in the House. Only when it became apparent that the other place would remove the clauses were they were deleted by the Government, and I suspect and hope that the same is the case here.

Having listened to the Secretary of State on Second Reading, it seems that the Government are moving towards accepting that some aspects of the clause may not achieve their perfectly laudable aim. Whether it is the solution proposed by the hon. Member for Stafford, or solutions that we have proposed, the Government need to find a solution that achieves what we all want—namely, we do not want intercept evidence or our  intelligence services to be compromised. We all want those things to happen, but Opposition Members do not believe that clause 11 achieves that as currently drafted.

In support of that, I will give two quotes, the first from a letter from David Masters, the Wiltshire coroner who has been involved in military inquests:

“Experienced coroners know how to deal with sensitive PII and classified material issues. We do not know of any who have acted improperly; they can be trusted!”

There is a lot of sense in that. Coroners know how to handle such matters and do not need a new Act of Parliament in order to deal with them.

My hon. Friend the Member for Harborough has already quoted the excellent brief produced by Inquest, which is a modest and sensible organisation not given to excessive language:

“The proposals amount to a fundamental attack on the independence and transparency of the coronial system in England and Wales”.

It claims that the proposals are

“fundamentally flawed; unsupported by evidence; disconnected from legal principles and have come about without any consultation with stakeholders.”

On Second Reading, the Secretary of State said that he was unhappy with some aspects of clause 11 and was ready to think about them again. When the Minister replies, I hope that she will follow up those comments and outline for the Committee how she will either withdraw or, at the very least, amend the proposals.

Photo of Tim Boswell Tim Boswell Conservative, Daventry 11:45 am, 24th February 2009

I sense that, with some anticipation, we are beginning to move towards the Minister’s response. I rise mainly to associate myself with the amendments tabled by my hon. Friends, and to give my summary and lay view about why they are important. My mind goes back to an essay that I wrote at school some 50 years ago. That is not because I often refer to the record about such matters, but because I remember the comment that I received about it intensely. The essay was in defence of free speech and, slightly to my surprise, my teacher wrote, “Rather strident in your defence of free speech.”

On the whole, that is a virtue in an MP, particularly one on the centre-right who happens to be interested in human rights. Since I wrote that essay, I have come to understand the constraints under which free speech operates. By way of a pre-emptive strike, I have already suggested that the Minister should not deploy the argument that only 1 or 2 per cent. of inquests go to juries, and that only two extant cases are stalled because they cannot be heard in the way that the clause is designed to address. Equally—I am sure that the Minister does not think this, because she is a reasonable person—the Conservative party cannot be caricatured as not being interested in the issues adumbrated in clause 11(2), namely national security, our relationships with other countries, the prevention or detection of crime, witness safety and

“real harm to the public interest”, whatever that means.

Those are critically important issues, and the question is therefore one of balance and seeing how we can adjust the mix to produce an acceptable outcome that serves the interests of openness and justice, which we all share, while having regard to the other constraints. The default mode should be justice and openness first and the requirement that an active case is made.

During the period that I have been in Parliament, there has been—particularly under this Government, although not exclusively—a tendency to say that because we have a problem with something, we need to legislate. We have started to do things “just in case”, which is the wrong burden of proof.

Three points concern me. The first is general confidence in the inquest system, which is an important issue that I addressed when the Committee considered legal aid. I make no criticism of the present Government, but there is a widespread distrust of the establishment and a feeling that the Executive will fix and conceal things in their own interests. Wherever possible, that must be challenged by openness.

The right hon. Member for Knowsley, North and Sefton, East will remember our interesting exchanges about the remarks of the right hon. Member for Kingston upon Hull, East (Mr. Prescott) in the Council of Europe, who was spot on when he said that if something goes wrong, it is looked into through an open inquiry and that that is the right thing to do. That is my starting point, and that of most members of the Committee. If we want inquests to work, we must ensure that they are open and assisted by a jury, where appropriate.

There will be problems, and I will return to those in a minute. My second point is that measures need to be article 2 compliant. As a member of the Assembly of the Council of Europe, I am bound to think about such matters. The record shows that Ministers and successive Home Secretaries—and now Justice Secretaries—have legislated and produced the kinds of argument that I anticipate that we will hear today, before being shot down by our higher courts or, ultimately, in Strasbourg. Sadly, that is a pattern that we should not be proud of, and we should try to avoid it if we can, by anticipating it. It is a very special thing, set out in the first substantive article of the rights, that people have a right to life and that, if life has been taken, there should be an open process of investigation, certainly when life has been taken by the state.

Then we come to the third point—what is going to happen? There are two ways that things might work. First, we might have, as it were, the literal process of judicial review; the Committee will forgive my rather flat-footed way of putting that. However, that is simply about whether or not the Secretary of State followed the process and considered the relevant factors in reaching his conclusion. Any careful Secretary of State ought to be able to make a case for that: they will have looked at the relevant factors; their officials will have briefed them; and they will have gone through a process. The issue is, of course, whether or not they made a reasonable decision at the end of that process, taking all the facts into account, and I hope that the general prejudice—the bias, if I may call it that—is towards free speech, as I have suggested.

If that is all that will happen, as these cases will only be politically highly-charged ones, such as the de Menezes case or those that have been cited by inquest, there will  be a very strong pressure to go through the process. If all that process does is to say, “Well, the Secretary of State ticked all the boxes and came to the conclusion that a section 11 investigation was the appropriate one”, it will not address the wider concerns of people about justice or the integrity of the jury system. Of course, it may also give rise to considerations about whether or not actions are article 2 compliant as well, but it will not meet the case.

The other possibility, of course, is that judges will look behind the words and say, “We want to look at the meat of this and see whether or not it was a reasonable and rational decision”. The more they widen that process, the more likely they are to overturn what a Secretary of State may have done.

One of the most interesting remarks in the speech by my hon. Friend the Member for North Wiltshire concerned incompetent redaction. He said that some redactions—of course, he did not say “all redactions”—are entirely inconsequential. Well, somebody took a decision that those matters should be withheld from the public view. That may have been a purely administrative decision and certainly not, to use a phrase, a “malign decision”, but it was unfortunate that those parts were not available, because they should be made available, as much as it is reasonably possible to do so.

If we set up the system like that, I fear that we will have real doubts about the integrity of the inquest system and our compliance with article 2. We may end up with a legal circus in which matters are always poised between regular recourse to judicial review and, frankly, fairly regular judicial reversal of the Secretary of State’s decision in any particular case. That is why what might be called judicial pre-scrutiny or judicial certification appeals to me as a possible answer to some of the dilemmas. The hon. Member for Stafford has suggested an alternative model, where responsibility for certification stays with the Secretary of State, who then feeds into the judicial process. I can see tensions in that idea, but it is not unworthy.

At some point, however, if a judge is empowered to do such work as a result of the operation of this clause, they will need to carry out a full battery of investigation into the other vehicles that are available. We have public interest immunity certificates, witness anonymity or screening and the possibility of a special advocate. There are a number of things that can be done, which the lawyers on the Committee will be more familiar with than me.

There is a final point about whether or not, as the Secretary of State suggested on Second Reading, there is something inherently different in the inquisitorial coronial purpose. I suggested in an intervention on the hon. Member for Stafford that perhaps it is not a unique case; there are other circumstances across the judicial spectrum where that is the case. However, I ask myself, and the Secretary of State needs to ask himself, whether there is not a prudential judgment to be taken. The last thing that I want is regular recourse to a situation in which there is difficult evidence and inquests do not proceed or are regularly stalled. Two inquests are stalled at the moment, perhaps not indefinitely, but because some of the information is too sensitive for the time being, However, they are not able to proceed, which is clearly undesirable, and it is worth the Committee considering whether that outcome is better than a procedure  that threatens the integrity of the judicial and coronial systems by saying that an inquest has to be held in an untypical way on the certification of a Secretary of State—a politician, however well motivated and well intentioned—based on some criteria that are unduly wide.

That was the point made by the right hon. Member for Knowsley, North and Sefton, East on real harm in the public interest. If we are not going to secure open justice, for reasons that others have said and I am sure the Minister will say, we need to tie this down to the smallest derogation possible that is consistent with national security but wherever possible enables inquests to be held in the conventional way. In the end, that comes back to public reassurance with the system. I am terribly worried that, because there are one or two hard cases, we may end up with radical damage to the overall structure, which none of us wants, because everyone in this room values the importance of free, open and penetrating inquiry into circumstances of death, particularly where the state is directly or indirectly involved.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

I agree wholeheartedly with a lot of what has been said by many Opposition Members and I have no intention of repeating their points. There is one specific point that I want to reinforce and to focus on, which is that clause 11 has no balance in what the Secretary of State is required to do in order to certify an investigation. For the reason for that, let us look at what the clause says. We have done that a number of times, but it is worth doing again. The clause states:

“The Secretary of State may”— if he or she so chooses—

“certify an investigation under this Part into a person’s death if of the opinion that...the investigation will concern or involve a matter that should not be made public for any of the reasons set out in subsection (2)”.

In subsection (2) there is a list of reasons for which it may be appropriate to certify an investigation—

“in order to protect the interests of” three things.

The right hon. Member for Knowsley, North and Sefton, East put it to my hon. and learned Friend the Member for Harborough during the course of his speech that the real problem might be in subsection (2)(c), but I am not so sure. I suspect that the real problem is in subsection (2)(a). What worries me is that the Secretary of State has got to be satisfied, or of the opinion, that

“the investigation will concern or involve a matter that should not be made public for any of the reasons”, those reasons being

“in order to protect the interests of” a number of things.

It has already been observed, rightly, that it will almost always be in the interests of national security not to reveal certain information.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

Is the point not only that it may or may not be always in the interests of national security, but that it may be arguably in the interests of national security? Someone who wishes to take a view because they are committed to secrecy will always be able to produce a plausible case for saying so.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

My hon. Friend is right about that, but the concern here is that it is always possible to argue that it is in the interests of national security not to have particular information made public. It is always possible to argue that, in the interests of a relationship between the United Kingdom and another country, information should be kept private. What the clause does not require the Secretary of State to do, so far as I can see, is to balance that concern against, for example, the interests of the public more generally in openness, or the specific interests of the family in an inquest in determining whether a piece of information should or should not be kept private. That lack of balance concerns me.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 12:00 pm, 24th February 2009

Surely it is worse than that. All the Secretary of State has to do is to hold an opinion. That opinion may, if it is whimsical or based on an irrational foundation, be subjected to judicial review, but it is how he couches the wording of the certificate that will affect the policing of it under judicial review. Simply to have an opinion that something, if made public, would be contrary to the interests of national security leaves open a vague area of issues that cannot be investigated.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

Given that judicial review has often been cited in the debate as a safeguard that should reassure us about the operation of the clause, my hon. and learned Friend is right to be concerned about it.

The problem with the clause is that it does not require the Secretary of State to balance the interests of privacy in the interests of national security or, for example, the relationship between the United Kingdom and another country against the broader interests of open justice or the interests of family and other considerations. All that it requires the Secretary of State to do is to come to the opinion. My hon. and learned Friend is right to say that the Secretary of State should not come to the opinion unreasonably, or it will be subject to judicial review, but the clause requires him to take the view that the matter should be kept private.

As my hon. Friend the Member for Daventry observed earlier, the only safeguard in subsection (1)(b) is that

“no other measures would be adequate to prevent the matter being made public”, not that it is necessary to keep the matter private in the overall interests of justice, balancing all factors against each other. It provides only that this particular mechanism is required to keep the matter private. It deals not with the principle, but with the procedure. My concern remains extraordinarily substantial.

Many members of the Committee have said that we do not need to worry too much because, if the Secretary of State were to act unreasonably, the action would be subject to judicial review. However, if a case of judicial review were brought before the court, it would look at the legislation and decide whether the Secretary of State had or had not applied it reasonably and made a decision within the parameters of the legislation in an unreasonable fashion. All the Secretary of State is required to do under the clause is to reach the opinion that an investigation will concern or involve a matter that should not be made public for any of the reasons given. It does not require him to have come to that conclusion and to have decided that it should nevertheless  be kept private because the interests of all of those things that argue for privacy outweigh the interests of justice more broadly. That is missing from the clause and it is one of the reasons why it is fundamentally objectionable.

I hope that the Minister can reassure us about what the Government will do to restrict the breadth of the clause more generally and say specifically how judicial review will act as a proper safeguard on the actions of the Secretary of State in such matters.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

The hon. Gentleman dismisses the role of judicial review in a way that, on reflection, I hope that he will not hold on to. The matter works in two ways. First, the possibility that judicial review will be used will weigh on the mind of the Secretary of State when he is making such a decision; moreover, all those who advise him will say that the decision could be subject to judicial review so he must think how he could defend his decision if that were the case. Secondly, we must bear in mind that the process of judicial review would never support a whimsical decision, as the hon. and learned Member for Harborough put it. No serious judicial review process would support a decision that could manifestly be shown to be whimsical.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

I agree with the right hon. Gentleman that a whimsical decision or anything that could be categorised as unreasonable would not survive a judicial review. I do not dismiss judicial review; it is exceptionally important, but I am worried that it would have only a limited impact given the wording of the clause. As I understand it, judicial review will operate on the Secretary of State’s discretion under the wording of this Act, as the Bill may become. The court would look at clause 11—or section 11—and ask, “Has the Secretary of State reached a conclusion within the parameters of this section that is unreasonable?” If he or she has done so, the court will say that it should be changed. If he or she has not, the court will have to conclude that there is nothing that can be done about it.

Several hon. Membersrose—

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

I am spoiled for choice. I give way to the hon. Member for Cambridge first.

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

If one looks at the Binyam Mohamed case, which is the latest example of a judicial review involving national security, the court simply does not go behind the certificate. It asks itself whether there were any procedural faults, irrationality or illegality. In a national security case, that is a very easy test for a Secretary of State to meet. The only way to ensure that there is more than that is to build into the statute the court’s more specific role in deciding whether the test has been met.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

Yes, I agree. That is important, but we must also build into the statute some degree of balance in the Secretary of State’s consideration. It seems to me that that balance does not exist.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am most grateful to my hon. Friend because he has been bombarded with interventions. My point was provoked by the intervention from the right hon. Member for Knowsley, North and Sefton, East. The court doing the judicial review does not change the  decision. It simply tells the Minister to go away and go through the process again. He may come up with the same erroneous or disagreeable answer, but the judicial review court cannot change the decision; it merely polices the process.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

My hon. and learned Friend reinforces the answer to the hon. Gentleman’s point. It is right not to devalue judicial review, but it is also right not to over estimate its value in this context. We cannot rely on the judiciary to save us from the operation of this clause. It is our job as legislators to ensure that the clause is drafted properly and not to hope that the judges will save us later if it is not. It seems to me that it is not drafted properly because it does not require the Secretary of State to do what we should expect him to do, which is to balance the arguments for privacy in these circumstances against the wider issues of justice, both for the family and for the public more broadly. That is what is defective about this clause as it is currently drafted, and I hope that the Minister will correct it.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I am sure that everyone in this Committee will agree that this has been a very constructive, serious and sensitive debate. I want to congratulate our Hansard writer. A week or so ago, The Observer suggested that the only people paying any attention to this debate were a couple of journalists. Nick Beech wrote back saying, “Never fear, Hansard’s here.” He said that Hansard will provide a clear and accurate transcript of proceedings and that with the 24-hour media, it will provide it by the following day. Therefore, in putting forward very serious and deliberative ideas and propositions, hon. Members are safe in the knowledge that they will be recorded properly.

During the course of this debate it has become clear that there are no easy answers. No one has said, “Here is a simple solution. Let’s do that, and it’s all fine.” I shall explain what the clause is designed to do and then explore how we might be able to progress and respond to some of the suggestions made by hon. Members on both sides of the Committee.

The crux of the issue is that clause 11 addresses how we protect highly sensitive material that is relevant to a coroner’s investigation but that cannot be made public. I think that most Opposition Members, as well as Government Members, recognise that there is a problem and that a solution is needed. As the hon. and learned Member for Harborough said, the Opposition have approached the matter by using parliamentary devices to get the matter aired more fully and in more detail, and I accept the thinking behind that. It is right that when we make proposals that would remove juries, there should be full and rigorous testing of whether those proposals are acceptable and, if they are, whether they will work.

On a number of occasions, hon. Members have mentioned the two cases that my right hon. Friend the Member for Knowsley, North and Sefton, East and I have mentioned as being behind the proposals. I want to put it on record that, in fact, we are now down to one of those two cases. In the second case, referred to by the hon. Member for North Wiltshire, the coroner has decided that she can progress the inquest without needing the sensitive material. It might be said that I am arguing against my own position, but that shows that, through  detailed consideration, one of those cases can be dealt with under the present arrangements, which is a good thing. However, it also highlights the fact that it would be only very exceptional cases indeed in which the proposals set out in clause 11 would ever need to be used. I do not want to go any further into the detail of the cases mentioned, because I do not want in any way to compromise the judicial process.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

So that we are clear about the case that the Minister has just mentioned, will she say whether that inquest has been opened and adjourned and will now be resumed, or has it yet to begin?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

It has been opened and adjourned. As I understand it—I received this information only in the past 24 hours—the coroner now feels that she can continue the inquest without reference to the sensitive material.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Given that answer, may I ask the Minister a further question? When did it occur to the coroner that she had the ability to resume the adjourned inquest on the basis that the hon. Lady has outlined? There has been a long delay and I think that the public are entitled to know what influenced the change in the coroner’s mind.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I do not have that information to hand. As soon as I do, I will certainly share it with the Committee. I was given the information only relatively recently. I accept what the hon. and learned Member for Harborough says. Given that there was a very long delay and the coroner was quite insistent that she could not continue the inquest without reference to the sensitive material—[Interruption.] An answer may be coming. [Interruption.] No, an answer was not forthcoming. There was a long delay when that case first came to public attention. I will try to get further information about what persuaded the coroner that it can now go ahead. The inquest was adjourned only in November of last year. Nevertheless, there was a long gap before it got to that stage.

It is also important to say that this part of the Bill is about putting bereaved families at the heart of the inquest system. As Opposition Members have said on a number of occasions, it is important that we find some way of enabling inquests to be held. Nothing can be more frustrating for a bereaved family than for a case to be left in limbo, so it is important that we find a way forward. As my hon. Friend the Member for Stafford said, no solution will ever be ideal in such situations, and that is very much the perspective of bereaved families. If any of us lost a son in the circumstances of the Azelle Rodney case, we would want the full circumstances of the death to be set out in a way that allowed the finder of fact to make a proper decision on all the facts.

The Government have a duty to protect and consider the wider public interest in protecting highly sensitive material, and that involves difficult, knife-edge, balanced decisions. Let me say again to the Committee that the Government will not remain wedded to a particular  solution, and certainly not to the arrangements set out in clause 11, if we come across a solution that makes for a better balance—to use the words of the hon. Member for Rugby and Kenilworth—that ensures that highly sensitive material that cannot be put in the public domain remains outwith the public domain and that gives members of the bereaved family as much of the information as possible so that they can feel that the coroner has dealt with whatever happened to their loved one in as sensitive, appropriate and open a fashion as possible.

I will reflect carefully on all the suggestions of the hon. Members for North-West Norfolk and for Cambridge, who lead for the Opposition parties, but also on those of my hon. Friend the Member for Stafford, who came in with a third way—I realise that “third way” is no longer a politically popular phrase, but it is nevertheless worth throwing into the pot now and again. My hon. Friend’s alternative solution gives some decision-making powers to the Secretary of State and provides for some judicial reflection and resolution.

I want to consider those alternatives in a little more detail, although proposals might also come from the Joint Committee on Human Rights. As yet, we have not had its report on the Bill, but I know that its Chairman, my hon. Friend the Member for Hendon (Mr. Dismore), has recently written to the Justice Secretary, and I hope that we will be able to respond in the near future.

Let me turn to the amendments. Most Opposition Members, and my hon. Friend the Member for Stafford, have criticised the breadth of the criteria relating to the way in which a certificate would be triggered, particularly in subsection (2). The hon. Members for North-West Norfolk and for Cambridge described the reference to the prevention of

“real harm to the public interest” as a catch-all provision. It has also been said that we have widened the criteria, compared with those in the Counter-Terrorism Bill. Let me put the issue in context. In the Counter-Terrorism Bill, there were three grounds for triggering the certificate: that the material could not be made public

“in the interests of national security”,

in the interests of relations with another country or

“otherwise in the public interest.”

We accepted that the phrase “otherwise in the public interest” was too broad, so we redrafted the provision, which has become clause 11(2) in this Bill, in a genuine attempt to respond to that criticism. The additional criteria of “preventing or detecting crime” or protecting

“the safety of a witness or other person” were intended to add specificity and therefore to narrow the otherwise broad circumstance in which the certificate might be issued. We also tried to place a bar by replacing the test that was based simply on the public interest with one that could be invoked only to prevent real harm to the public interest. The hon. Member for Rugby and Kenilworth thinks that that is too wide as well. Clearly we have failed in our attempts to narrow down the definition in response to the comments made in relation to counter-terrorism provisions.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons) 12:15 pm, 24th February 2009

My concern is not necessarily that the provision is too wide. I am not sure whether it is or not. I am not sure whether it is clear enough. It would  be helpful if the Minister would explain what the word “real” means in the context. Does it mean “not imaginary”, or “substantial”?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I would say that it meant substantial. I recognise that there are still considerable concerns about the breadth of the criteria.

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

There is another complication about the use of the phrase in clause 11, which is that it is used again in clause 71, when the Bill turns to the question of anonymous witnesses. When the temporary legislation, the Criminal Evidence (Witness Anonymity) Act 2008, was going through Parliament, the Minister said that the phrase meant something specifically to do with protecting undercover operations. It does not make a lot of sense for the same phrase to occur in the same Bill with different meanings.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

The hon. Gentleman makes a fair point, and I assure him that we shall look further at the criteria set out in subsection (2).

The amendments also deal with another central question: who should be responsible for certifying the investigation. Clause 11 provides that it should be the Secretary of State, with the court performing its familiar role of checking whether the decision is flawed, according to the usual principles for an application for judicial review. The Opposition want to transfer that responsibility to the judiciary. I can see the merit in their arguments, but a question needs to be considered. There are some significant difficulties in transferring the responsibility, to which, for example, my hon. Friend the Members for Stafford and my right hon. Friend the Member for Knowsley, North and Sefton, East referred. Whether national security is a factor should really be the decision of the Executive. If Opposition Members thought about it, they might find that the judiciary would not be overly keen to make decisions about whether something had a national security implication. We need to reflect on that as we try to reach a sensible conclusion about clause 11.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

The Minister puts her argument cogently and constructively, but does she not recognise the points of my hon. Friend the Member for North Wiltshire that there would be a danger of Executive creep? In the first year, there might well be two or three inquests in which the certification process would be used; but there would be a temptation to use it more and more. Everyone knows the pressures that Ministers are under. We were thinking about perhaps taking that stage out of ministerial hands and putting it into the hands of someone who would not be subjected to that Executive and administrative creep.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Again, the hon. Gentleman puts his case very reasonably. I have some sympathy with the view that Executive creep can occasionally occur. That is why the suggestions of my hon. Friend the Member for Stafford are worth considering in more detail. Some of them might give the balance and distinction between when the Executive should make a decision and when the judiciary can have oversight and show how that decision should be reflected in inquests.

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

The crucial point—I tried to make this point during an intervention on the hon. Member for Stafford—is the degree of oversight and the degree of deference held by the court for the decision of the Executive. Under ordinary judicial review, the court pays a great deal of deference to the Executive’s view on national security. Some of us feel that that is simply not enough, but we are not calling for the court to decide on national security by itself. We are calling for the Executive to apply to the court for an order on the basis of national security, and for the court to be able to go behind that certificate to some degree to ask the Secretary of State on what basis the Secretary of State wants the court to make the decision. Nevertheless, when that happens, the court will still ultimately defer to the Executive’s view of the facts of the matter, because the court has no independent way of judging those facts. It is about the balance between the two. It is not just about one thing or the other.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I understand the hon. Gentleman’s argument perfectly. That is why we need to reflect further on how to strike that balance, so that the interests of national security—which are, of course, crucial—are protected.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

In light of the exchanges this morning, would the Minister also consider that, as my hon. Friend the Member for North Wiltshire said, there will be a security, international relations or crime angle in virtually all such sensitive cases for a Secretary of State to latch on to in order to make a decision for secrecy? My hon. Friend the Member for Rugby and Kenilworth implied that it could be a judicial function to consider whether the Secretary of State is capable of balancing those considerations against the wider interests of public justice and openness. In an effort to seek that balance and prevent a Secretary of State from just going down the track of saying, “There must be some security angle here,” we are anxious to build in further safeguards.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Again, I understand what the hon. Gentleman is saying. I would just say two things to him. One is, of course, that clause 11 is expected to be an exception rather than a rule. The other is that even as we edge our way towards a balance between the Executive and the judiciary, we should not forget the balance that comes from proper parliamentary scrutiny of the Executive. That is built into the system too.

The courts themselves have recognised the sensitivity involved in national security. In the case of the Secretary of State for the Home Department v. Rehman, Lord Hoffmann said that

“the question of whether something is ‘in the interests’ of national security is not a question of law. It is a matter of judgment and policy. Under the constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.”

He went on to say in a postscript written after the 9/11 attacks:

“It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process.”

Those are powerful remarks that we need to bear in mind as we move forward.

Photo of George Howarth George Howarth Labour, Knowsley North and Sefton East

To some extent, does that not answer the point made by the hon. Member for North-West Norfolk about the potential for Executive creep? In my experience, having been involved both in Northern Ireland and, formerly, in the Home Office, in decisions about individual cases—as my right hon. Friend the Member for Cardiff, South and Penarth will have—there are no circumstances in which any Minister of whatever party would rubber-stamp such decisions. My experience is that people take such decisions carefully, taking all the advice possible. That being so, I cannot see how Executive creep could possibly come into it.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice 12:30 pm, 24th February 2009

My right hon. Friend makes a good point. It is true. Given the particular sensitivity of these cases and their rarity, it is highly unlikely, to the point of being unimaginable, that any Secretary of State, regardless of party, would make a decision without thinking carefully about all the consequences. We too need to think carefully about shifting between the significant and respective roles and responsibilities of the Executive and the judiciary.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I am sorry to jump the queue ahead of my hon. Friend the Member for Rugby and Kenilworth. The de Menezes inquest was conducted by a retired High Court judge, sitting as the coroner with a jury. It is fair to guess that, during the course of that inquest, Sir Michael Wright will have had to consider matters to do with national security, the relationship between the United Kingdom and another country and, no doubt, the prevention and detection of crime. It may well be that—if we know what it means—he would have had to consider other things that may have caused some real harm to the public interest. As I said earlier, that seems a perfectly sensible way of having open justice as well as some hold on the escape of highly sensitive information into the public domain, contrary to the public interest, or whatever it may be. Why do the Government not pause for a bit and use the Sir Michael Wright coroner’s inquest as a lesson or template from which they can redraw clause 11, if they still think it is necessary?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I am asking the Committee to pause for a bit and look at the flaws in the amendments proposed, albeit with every good intention, as well as the flaws highlighted in clause 11. Some campaigners argued that the de Menezes inquest would have been held in secret, had the Bill been in force. That is simply not true. It was possible to use all the other operations and measures that are available under clause 11(1)(b) to enable that inquest to go ahead.

Photo of Jeremy Wright Jeremy Wright Opposition Whip (Commons)

I hope that the Minister is saying that the Government will reconsider all of this and return to it on Report. If she is saying that, perhaps she can be clear about it, because I am sure that all Committee members will welcome that.

May I return to some remarks that the Minister made a moment or two ago and ask two questions? First, she mentioned parliamentary scrutiny as a restriction on the activities or the decisions of the Secretary of State  in this context. I am not sure, because of the nature of the material that we are talking about, how that helps us. Perhaps she can outline in a little more detail how she envisages parliamentary scrutiny playing a part in the Secretary of State’s exercise of discretion under clause 11.

Secondly, in relation to the point that I was making earlier, I do not dispute—I doubt that any Conservative Member disputes it—that it is for the Secretary of State to make a determination about what should or should not be kept private, in the interests of protecting national security, for example. I am concerned that, at the moment, all the Bill would require the Secretary of State to do is to make that determination and decide whether it is in the interests of national security or the relationship between the UK and another country to keep a matter private. The Bill does not require the Secretary of State to balance those interests against wider interests. I hope that the Minister can comment on that balance.

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

That is correct. First, I shall ask the hon. Member for North-West Norfolk to withdraw his amendment, because I want to reflect on the issue further—today’s debate highlights the concerns clearly. I hope that that is helpful. We will come back on Report with more detail, which I hope to be able to discuss with Opposition Members between now and Report stage, so that we can reach a positive and satisfactory conclusion. With all due respect to the Committee, I felt that it was important that I set out in some detail why we are where we are.

On the question of balance, I accept the point that the hon. Member for Rugby and Kenilworth makes, but it can also be argued that, although the rights of the bereaved family have to be taken into account, the public and national security interests may outweigh those rights. It is on that point that we have to discover how we move forward.

The hon. Member for Cambridge talked about the importance of having a jury and drew a comparison with juries in criminal trials, but as has been reflected in today’s debate, that is not an exact comparison because—I will not repeat the argument in detail—it is possible in a criminal trial for the prosecution to drop the case if it feels that it cannot protect the sensitive material, whereas that is not the case here. He also talked about authorised jury checks. Those can take place exceptionally with the permission of the Attorney General, but the level of vetting in those cases is limited in some ways—more limited than full, developed vetting. In order to view the type of sensitive material that might be relevant in the one case that we are talking about, juries may have to be security-cleared to a higher level; that is simply not feasible, and it may not be appropriate.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I was anticipating the Minister’s remark, because I thought that she was trying to be helpful to us, but I am now disappointed by her closing point. It is not clear why any person cannot be security-vetted to a higher and appropriate standard. There may be information they have to dig, but by the nature of the case, we know that there are only a handful of cases that are likely to be referred. Will she at least reflect on that further?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I will reflect on it. However, in the general way of life, the idea that we go through a high level of vetting on randomly selected juries just does not seem to be the most appropriate way of approaching the subject. But I will certainly look at the case in more detail.

The question about public interest immunity certificates being the answer has already been addressed, both on Second Reading and by my hon. Friend the Member for Stafford. A jury cannot be expected to reach a meaningful verdict if it cannot have access to all the information—my hon. Friend made that case again clearly. I know that that argument has been made, but I, as a juror, would not be satisfied if I were trying to make a finding of fact, and material was being withheld because of its sensitivity. It is not feasible to suggest that a jury could come to a proper finding of fact in that way. Nevertheless, I reassure the Committee that all measures short of certifying an investigation will be considered as a matter of course and that the investigation would be certified if, and only if, no other measures were adequate to protect the public interest at stake. The clause requires the Secretary of State to go through such a process.

For most cases involving sensitive materials, special measures of one kind or another would almost certainly provide the answers, as the de Menezes case showed. But it might be the case that that is not always possible. My right hon. Friend the Secretary of State for Justice has already made clear that we expect the certification process to be invoked rarely, and I reiterate that to the Committee.

I would like briefly to discuss military inquests, which the hon. Member for North Wiltshire mentioned, and to put on record our thanks to the Wiltshire and Oxfordshire coroners for their commendable work. It would be appropriate at this stage for the Committee to send its condolences to the families of the two young men killed while the hon. Gentleman was in Afghanistan. Military inquests will not be subject to the clause because they are already heard without juries.

I have listened carefully to the points made today and in our sitting on 10 February. I assure the Committee that I have registered the strong desire to narrow the criteria against which a certificate may be issued and to have a greater measure of judicial oversight. I will reflect very carefully and, of course, we will come back to it on Report. In the meantime, I ask the hon. Member for North-West Norfolk to withdraw his amendment.

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

Before the Minister sits down, will she comment on the Northern Ireland aspect and on amendment 125?

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

The hon. Member for Cardiff, Central suggested that amendment 125 was an extension. There is no extension. The provision reflects the issue raised before of protecting the names of members of special forces and their families, and we will continue to work the Ministry of Defence to do that. However, if a family does not want their family member’s name to be withheld, the coroner will not make a direction to have it withheld. I hope that that gives some reassurance.

All the Bill applies to Northern Ireland because the situation is the same there. I would like to make it clear that there are no cases in Northern Ireland in which it  would be necessary to apply a clause 11 certification. I hope that that will provide sufficient reassurance to the hon. Lady. The Secretary of State for Northern Ireland has made very clear that the provisions will not apply to investigations into the legacy cases. He knows from his experience in Northern Ireland about the sensitivity of those cases, as do I. The legacy cases will not be affected; nevertheless, highly sensitive cases or material may come before an inquest in future, so the provisions will be available in Northern Ireland as well.

I apologise for my very lengthy response to the debate. I invite the hon. Member for North-West Norfolk to withdraw his amendment and ask members of the Committee to agree, in the meantime at least, that clause 11 stand part of the Bill.

Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice)

I am grateful to the Minister for what she has said—she has put her arguments in a constructive and understanding way. The good news is that, having listened to what she has said this morning, I will withdraw the amendment; the bad news is that we cannot let the clause stand part of the Bill. I am confident that, having won the argument and with the support of the hon. Member for Moray and perhaps some Government Members, we will stop the clause standing part of the Bill.

We have had a very good debate and I will not rehearse all the arguments now, but I would like to thank my hon. and learned Friend the Member for Harborough for his contribution. My hon. Friend the Member for Rugby and Kenilworth, who as a Whip does not normally speak at length, made some very telling points, as did my other hon. Friends and the two Liberal Democrat Front Benchers.

Two points have come out of the debate. One is about public confidence in the coronial system. Originally, we heard that the problem was caused by two inquests that had been adjourned sine die and were going nowhere fast. We now hear that there is only one such inquest. I really feel that to risk public confidence and trust in the entire system on the basis of one inquest is to ask a great deal from the official Opposition in terms of persuading us to support this particular clause.

Bearing that in mind, the telling point was made by my hon. Friend the Member for North Wiltshire when he said that there can be few examples of inquests where there are more highly confidential, top secret documents and information that has to be protected, yet we have a system in place that works perfectly well—one that covers virtually every single eventuality. Despite what the Justice Secretary said about those two inquests, we now hear that the current system can indeed cover and protect the information involved in one of them, so that is 50 per cent. of the problem solved, as I see it.

The Minister mentioned, and I think that this is quite telling, that families are at the heart of the Bill, but there is no mention of families in the clause, or of the wider interests. I take on board entirely the spirit of good will and co-operation in which the Minister asked us to withdraw the amendment—we will accede to her request—but despite her remarks, we cannot vote to allow the clause to stand part of the Bill. It will do  untold damage to the coronial system and undermine public confidence. Furthermore, what is so sad is that in a good, positive part of the Bill, which can achieve a great deal, we have a clause that could undo much of that good work. We will have to vote against clause stand part.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 8, Noes 7.

Division number 2 Nimrod Review — Statement — Clause 11

Aye: 8 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 11 ordered to stand part of the Bill.