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7.45 pm

Mr. Carmichael: Will the Minister give way?

Mr. McNulty: Only if the hon. Gentleman does not do a rather bad pantomime dame impression.

Mr. Carmichael: When it comes to bad pantomime dames, I will take lessons from the Minister. Does he not accept that the whole point of the Bill is that it fundamentally affects the total authority of the prosecution authorities? That is why some safeguard is necessary.

Mr. McNulty: But the substance of part 3 addresses precisely that point, and we think that it does so in an entirely satisfactory fashion—and so does the Scottish legal establishment, as the hon. Member for Perth and North Perthshire (Pete Wishart) said, and most other parties in the House. I really do not think that this is an issue of substance.

On the points that my hon. Friend the Member for Foyle (Mark Durkan) made, I want to make it very clear that I am in no way amending the Justice and Security (Northern Ireland) Act 2007. I am not taking out that fourth limb, save in the context of clause 28 and the issues to do with jurisdiction. I have nothing but support for the Act, because it is a Government Act, but I am keenly aware that my hon. Friend has some difficulties with it. I just wanted to make that point clear. When I referred to Diplock, I was referring to the admonishments from my lawyers, who wanted me to stop calling this Diplock. That at least implies that I may have called it that before I was suitably admonished. I pass no comment on whether I was right or wrong.

I am not entirely sure what is left to be dealt with, save the amendments of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), which are important. I do not take them lightly. In the main, they are redundant and emphasise points that are already provided for in the Bill, but I can give a little hope to him: amendment No. 91 stands out from the array. I thank him for tabling it. The motivation behind it is clear, and he referred to it in Committee. He wishes to ensure that forfeiture of a convicted terrorist’s assets does not lead to injustice and unwanted consequences for his innocent family. Clearly, the Government share that motivation, and we discussed the point in Committee. The sting in the tail, as ever, is that we are not entirely happy with the drafting as there may be issues to do with who counts as a dependant. The term is not fully defined. I assure the House that I will take the amendment away for careful consideration, and intend to come back with a revised amendment of our own, because I do not think that the amendment is otiose or redundant. Most of the other arguments that he makes are perfectly fair, but they reinforce points already set out in the Bill or in law.

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Mr. Hogg: The right hon. Gentleman is being very helpful. He says that it should not be stated in the Bill that the burden of proof is “beyond reasonable doubt” because that is already set out in law. Would he be good enough to explain why he says that? I am not persuaded that what he says is the case; if I am wrong, so be it, but will he say why I am wrong?

Mr. McNulty: At the risk of stating the obvious, “beyond reasonable doubt” is absolutely central to all that we do, in every part of the courts’ processes. I do not say that it is wrong to put it in the Bill; I simply say that it is redundant to do so as explicitly as the right hon. and learned Gentleman suggests. However, I take his point on amendment No. 91, and with his indulgence, I will take it away to look at it further.

Mr. Llwyd: The Minister is generous to give way to me, because I have not taken part in this debate. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) makes a good point, because normally when a forfeiture is made under current law in criminal courts, the standard is “the balance of probability”—that is, the civil standard, not the criminal standard.

Mr. McNulty: I am not sure that that is the case. If we specified in the Bill that the judge must be satisfied beyond reasonable doubt, that could cast doubt not only on the burden of proof, but on the integrity of all other sentencing provisions. Our law is not littered with the phrase “beyond reasonable doubt”. It operates in part by convention and in part by statute, and to isolate the forfeiture provisions and add “beyond reasonable doubt”, which pertains anyway, could cast doubt on other sentencing provisions. Where there is doubt lies confusion, and where there is confusion, a pile of lawyers rush in and make a load of money out of it. That is not worth while, especially in such a sensitive area. It is well established that the test is “beyond reasonable doubt”. My brief says, “Leave well alone”. I shall not translate that into parliamentary language; the thrust is clear.

I commend Government amendments Nos. 60 and 9, and I am grateful for the broadly generous way in which the House has received them, notwithstanding the comments of my hon. Friend the Member for Foyle. I urge the House to resist the other amendments in the group, save for my assurance that I will take amendment No. 91 away for consideration. It refers to an issue that the right hon. and learned Member for Sleaford and North Hykeham has usefully brought to the attention of the House.

Tom Brake: At the risk of giving the Minister some satisfaction, having listened to wiser counsel, and because of the wider implications of amendment No. 112, I suggest that although we can perhaps return to it in the context of a range of offences, we do not intend to press it to a Division tonight.

Mr. McNulty: I am grateful.

Amendment agreed to.

Amendment made: No. 9, page 20, line 40, leave out subsection (7).— [Mr. McNulty.]

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Clause 65

Certificate requiring inquest to be held without a jury: England and Wales

Mr. Dismore: I beg to move amendment No. 1, page 45, line 12, leave out clause 65.

Madam Deputy Speaker: With this it will be convenient to discuss the following: amendment No. 33, page 45, line 23, leave out subsections (b) and (c).

Amendment No. 2, page 46, line 21, leave out clause 66.

Amendment No. 35, clause 66, page 46, line 34 , leave out subsections (b) and (c).

Amendment No. 3, page 47, line 30, leave out clause 67.

Amendment No. 119, clause 67, page 47, line 35 , leave out ‘Secretary of State’ and insert

Amendment No. 37, page 47, line 36, at end insert

Government amendment No. 70, page 47, leave out lines 37 to 40 and insert—

‘( ) The Secretary of State must establish and maintain a list of coroners eligible to be appointed under this section (“the approved list”).

( ) A coroner may be included on the approved list only with the agreement of the Lord Chief Justice of England and Wales or the nominated senior judge.

( ) A person may be appointed under this section only if—

(a) the person is—

(i) a coroner on the approved list,

(ii) a puisne judge of the High Court in England and Wales, or

(iii) a circuit judge, and

(b) the Lord Chief Justice of England and Wales or the nominated senior judge agrees to the person’s appointment.’.

Amendment (a) to the proposed amendment, line 1, leave out ‘Secretary of State’ and insert

Amendment (b) to the proposed amendment, leave out the second proposed subsection.

Amendment (c) to the proposed amendment, in paragraph (b) of the final proposed subsection, leave out

and insert ‘the Secretary of State’.

Government amendment No. 71.

Amendment No. 120, page 48, line 32, at end insert—

‘( ) must hold the inquest in the same district,’.

Amendment No. 121, page 48, line 40, leave out ‘Secretary of State’ and insert

Amendment No. 38, page 48, line 46, leave out from ‘to’ to end of line 47 and insert ‘the affirmative resolution procedure.’.

Amendment No. 39, page 49, line 1, after ‘may’, insert

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Amendment No. 122, page 49, line 8, leave out ‘Secretary of State’ and insert

Amendment No. 40, page 49, line 8, after ‘may’, insert

Government amendments Nos. 72 to 74.

Amendment No. 10, page 50, line 4, leave out clause 69.

Mr. Dismore: The amendments all refer to part 6 and the provisions on inquests and inquiries. This is the first chance that we have had to debate these matters on the Floor of the House. Part 6 was tacked on to the Bill very late, and the first observation to make is that although the Bill deals with terrorism, the provisions in relation to inquests go way beyond mere terrorist cases—they are much broader than that.

My amendments Nos. 1, 2 and 3, which are tabled to give effect to recommendations of the Joint Committee on Human Rights, effectively delete the operative parts of part 6. Our argument is that those should be incorporated in the forthcoming coroners Bill and dealt with as part of the general reform of coronial law.

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

The Bill provides a new procedure. The Home Secretary will be able to issue a certificate stating that the inquest should be dealt with rather differently, without a jury and with a special coroner if it is in the interest of national security or the interest of the relationship between the UK and another country, or otherwise in the public interest. Those are very broad exceptions indeed, going way beyond the issue of terrorism, as I said—and with no jury, but a specially appointed coroner.

The Government are tabling their own amendments to tweak details of the appointment of the coroner, but in practice they are a fig leaf. The Lord Chief Justice or another senior judge will approve the appointment of the people on the list prepared by the Secretary of State for Justice and the appointment of the individual coroner in a particular case, but will not deal with the key question whether it is appropriate to hold a special inquest in the first place. The Government say that that is an Executive function because the Secretary of State is privy to sensitive information and the overall intelligence picture, which the Lord Chief Justice is not, but there is no reason why he could not be in any individual case.

The Government’s response to our various reports and recommendations on the matter are, first—and this I find the most bizarre argument—that they will facilitate an independent inquest. Far from it. They say that they will allow an independent finder of fact to see all the
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material, that the office of coroner is an independent judicial office, that it would be incompatible if material central to the case were not considered, and that the investigation would have to proceed but could not if material could not be disclosed in open court.

First, if all that were true, which I do not think is the case, does it amount to a counsel of perfection? Secondly, the obligation is to provide an adequate and effective investigation and all those factors necessary for it. The proposals will not give closure to relatives; not give the public confidence that any lessons have been learned; not provide an adequate and effective investigation or the element of independence; not provide for public scrutiny; and not involve the next of kin—the four elements required by article 2, which I mentioned earlier. The Government’s proposals allegedly comply with the requirements of article 2, but they do exactly the opposite. They comply with article 2 not by a jot or tittle.

Mrs. Joan Humble (Blackpool, North and Fleetwood) (Lab): Is my hon. Friend aware that when Nicholas Blake produced a report given to the Government on the deaths at Deepcut barracks, he said that the families of the soldiers who had died should find their answers through the inquest system because the Government said that there should not be a public inquiry. Does my hon. Friend agree that under these provisions the families would never have found any answer to the deaths of their loved ones?

Mr. Dismore: My hon. Friend makes an important point. The real question is whether the Deepcut cases would have ended up with a special inquest. If the Government resisted a public inquiry, one can only assume that they would probably have resisted an open inquest as well. She is right: in those circumstances, the families would have no closure and no knowledge of what had happened.

Mr. Alan Beith (Berwick-upon-Tweed) (LD): A further problem that would be faced by the families is that a coroner might, on the basis of closed material, return a verdict of unlawful killing. No prosecution could arise from that verdict of unlawful killing because the information that was crucial to that finding would not be available to the court. That illustrates the oddity of proceeding with these provisions before the issue of intercept evidence in court has been resolved in the way that the Judicial Committee of the Privy Council has recommended.

Mr. Dismore: The right hon. Gentleman makes an important point. I agree.

What is proposed in part 6 is no more and no less than a system of secret inquests for exactly the sort of cases that should be held in the open, where the state is potentially implicated. Independence is essential in such circumstances, and a Secretary of State-appointed coroner, even with the fig leaf of the Lord Chief Justice or other official, would have no hope whatsoever of satisfying that independent test.

Mr. Hogg: What makes matters worse, in a sense, is that the originating certificate is issued by the Secretary of State, who may very well have a departmental interest in not holding a public inquest.

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Mr. Dismore: The right hon. and learned Gentleman is entirely right. That goes to the heart of the question of independence, particularly if the Ministry of Justice is involved, the Secretary of State appoints the coroner and the case happens to involve a death in custody, or if the Home Secretary is the Secretary of State involved, and the case involves a shooting by the police, as in the de Menezes case, for example. One can think of a raft of examples in which, on the face of it, the Secretary of State may to a greater or lesser degree be implicated. It is not just a question of whether they are implicated; it is a question of justice being seen to be done, and if there is even a suspicion of implication, that undermines the whole concept of independence in the provisions.

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