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David Howarth:
It is extraordinarily dangerous. I know of only one other provision that allows the Government to interfere in some way—although this has been disputed—with an investigation in progress. This is the superintendence power of the Attorney-General over the director of the Serious Fraud Office in respect of its investigations, which was notoriously used in the BAE case. That is the only other example that I know of. These issues are up for grabs in the draft Constitutional Renewal Bill. Why the Government are bringing forward
yet another example of something that even they admit in that Bill, which proposes reform, to be wrong seems to me quite extraordinary.
The hon. Member for Hendon pointed out that only 2 per cent. of inquests end up before a jury, but that 2 per cent. is the crucial 2 per cent.—the 2 per cent. that consider deaths at the hands of agents of the state. At times in the debate, the Government’s response to those of us who are deeply troubled by what they are doing has been to say that worrying about it reveals one to be a paranoid conspiracy theorist or an obsessive. It seems to me that that is not the case at all; it is perfectly reasonable to be worried— [Interruption.] The Minister chunters that no one said that, but when I read the Committee report, I thought that his treatment of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) was of exactly that nature.
It seems to me that we have examples before us that we should all worry about. The hon. Member for Hendon mentioned one of them, and we need to be careful about mentioning matters that are sub judice. It is clear, however, that mistakes are made by agents of the state—perhaps more than mistakes on occasion. There is always a temptation for the state to cover up its own mistakes.
Much has been made of the crucial issue of public confidence. It is important that the public have confidence in the investigative system and public authorities, but more is at stake. The jury and the coronial system are a counterweight—a deterrent—to the temptation to abuse power in the first place. That is why the Government’s proposal is fundamentally wrong.
The Government’s proposal is breathtaking in removing the jury from the case merely through a certificate of the Secretary of State—that point has been raised only peripherally so far, but is crucial to understanding why the proposal should be resisted. The basis of national security, relations with a foreign power and public interest is enormously broad—in particular, relations with a foreign power and being generally in the public interest seem to leave virtually nothing that could not be used to justify exclusion.
Mr. Hogg: To build on the hon. Gentleman’s comments, is there not an important general principle that it is surely offensive, to law and probably to the European convention, to allow an interested party—the Secretary of State—to decide the forum and the means by which that person’s liabilities could fall to be determined?
David Howarth: That is a very important point. For example, in a case of a death in custody, if the Secretary of State for Justice, who is responsible for the prison system, were to exercise such powers, he would in effect be a judge in his own cause. We do not need the Human Rights Act to be worried about that; a fundamental principle of the common law is at stake. The Secretary of State is not independent.
The hon. Member for Hendon was right to say that these provisions have nothing inherently to do with terrorism. They include any case of the kind just mentioned. The provision that the simple certificate of the Secretary of State is enough to decide that the jury should no longer sit is almost arrogant in its brutality. On that model of thinking, the Government decide the public interest, and nobody else need apply. If it were a matter of national security, one could understand why that
might be the case. However, the provision applies not only to matters of national security but to relations with a foreign state and anything else that might be in the public interest.
As the Government want to resolve the problem—as the hon. and learned Member for Beaconsfield said, it is a serious problem—they need to do so in such a way that the Executive do not just decide the matter for themselves. They should need to apply to an independent court in some way, so that the decision could be challenged and the relatives could appear before the court and say, “No, there ought to be a jury.” The Government ought to have to persuade somebody that there is some necessity for such action. The Government’s current proposal requires them to persuade nobody. All it requires is the Government to decide for themselves that it would be convenient for them not to have a jury. That is only half the proposal; the other half concerns the special coroner. There is a Government amendment on the subject, but, as other Members have said, it is a fig leaf. It is not sufficient.
It was originally proposed that the coroner should be hand-picked by the Secretary of State. That represents an amazing violation of the separation of powers, and an astonishing violation of constitutional principle. A politician deciding which judicial officer should be responsible for an individual case? I cannot think of a worse violation of principle. It is a rule that would delight Robert Mugabe, and would probably get him into trouble. It is also the most dangerous of dangerous principles, subverting a basic rule of the constitution and a basic principle of the rule of law.
The Government amendment brings the Lord Chief Justice into the picture. It suggests that there should be an approved list of possible special coroners, and that the Lord Chief Justice must agree to any name included in the list. It also allows the Lord Chief Justice a veto when a particular person is chosen, but that is not enough. The right of initiative, throughout the system, still rests with the Secretary of State. Although people can be blackballed by the Lord Chief Justice, only the Executive can propose anyone. That too strikes me as a fundamental violation.
Mr. Hogg: Is there not a third point, which was touched on by the hon. Member for Islington, North (Jeremy Corbyn)? The Secretary of State can revoke an appointment. As such a revocation would be profoundly damaging to the career prospects and reputation of a specially appointed coroner, it might well concentrate his mind in favour of the Government.
David Howarth: I agree. In fact, those provisions are quite confusing. The special coroner can be removed for misbehaviour—it should be asked in that context who decides what constitutes misbehaviour, and on what grounds—or can be effectively removed through revocation of the certificate. The question then arises whether a new certificate can be produced for the appointment of a new special coroner, thereby removing the first special coroner without having to prove misbehaviour. The scope for abuse seems to me very broad.
If the Government insist on embarking on this route, the least they should do is remove the Secretary of State entirely from the process of choosing the special coroner. That is the intention of amendment No. 119, which
suggests that the coroner should be chosen by the Lord Chief Justice rather than the Secretary of State. I oppose all these provisions, but at the very least the Government should concede that principle.
I support amendment No. 1 and hope that it will succeed, along with the subsequent amendments to remove the rest of part 6. If those amendments are not passed, I hope that amendment No. 119 is pressed to a Division. Ultimately, however, these are mere details. On an earlier occasion, I was interested to know whether there was any constitutional principle that this Government would not violate for the sake of their own convenience. I think that in these provisions we have our answer.
Mark Durkan: I am delighted to follow the hon. Member for Cambridge (David Howarth) and to support amendment No. 1, along with amendments Nos. 2, 3 and 10.
Clauses 65, 66, 67 and 69 are simply wrong; they are wrong in terms of the process that produced them, they are wrong in principle, and they will do wrong in practice. They are wrong in process because they came out of nowhere and were smuggled into a counter-terrorism Bill; the Government hoped to smuggle through these very controversial changes under the cover of the other controversies associated with the Bill that are more prominently featured in the media and elsewhere.
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The Government have told us all along that they wanted to create a consensus on counter-terrorism, and they went to some lengths to create all sorts of dialogues and discussions, although that did not particularly include the Northern Ireland parties, which I can understand in the prevailing circumstances. However, there was no consultation on the provisions before they appeared in the Bill, and since this matter was last discussed in the House there have, of course, been additions. Clause 66 will now extend some of the provisions on inquests to Northern Ireland, which was not previously the case. That clause 66 has been added to the Bill as an afterthought again shows how ad hoc the provisions are—it landed out of the blue in Committee.
Public consultation is a legal duty in Northern Ireland. I hope that the Minister can clarify whether there was any consultation on this measure. Was there consultation with any of the Northern Ireland parties? Was there consultation with the Assembly? Will there be? Has there been consultation even with the Office of First Minister and Deputy First Minister?
These sensitive proposed changes might give rise to a number of serious implications and complications regarding the devolution of justice and policing. Let me ask a simple question: to whom would the proposed powers be devolved in the event of the devolution of justice and policing—or will the Government insist that they should still reserve the powers to themselves on the grounds of national security and relations with other Governments? If that is the Government’s view, it is a serious issue. Northern Ireland Office Ministers have been telling this House how wonderful agreements and consensus have been reached in the Committee of the Northern Ireland Assembly that was looking at issues to do with the devolution of justice and policing, and at the detail of
the exact scope of the powers to be devolved and how they might be devolved. Yet the Government have now—wham, bam—thrown in this grenade, when the Prime Minister has personally been involved in talks including the new First Minister and Deputy First Minister to try to resolve some of the difficulties in the devolution of justice and policing.
I hope that the Minister can provide some explanation or clarification, and if there has not been proper consultation or consideration I ask the Government to think about using that as at least one of the grounds on which they might consider withdrawing some or all of the clauses to allow for wider developments and for wider and proper discussions of all these issues later in the context of the coroners Bill. Those discussions would then take place with our knowing about the issues raised for Scotland and Northern Ireland, and we could address all the other fundamental points that Members have been expressing in this debate.
Why this scramble? Why do that rather than await the coroners Bill, which the Prime Minister promised us when he made the statement on the legislative programme only a matter of days ago? If that new process introduced by the Prime Minister is to mean anything, we should properly respect that promised Bill and all eyes and all work should be focused on it, rather than try to piggyback in a grotesque way fundamental issues to do with coroners’ courts into a counter-terrorism Bill, when the powers in respect of coroners’ courts in the Bill are not restricted or confined to what could be defined as terrorist cases. Other hon. Members have made the point that these powers, which would apply UK-wide, could apply in cases of custodial death, military death or death in circumstances of pursuit or controversy, and in all sorts of health and safety cases where issues of negligence or malice might well arise, or be felt or suspected. Inquests are about affording families and the wider public a sense of truth and at least some basis of understanding. We cannot simply pat victims on the shoulder and then shrug our shoulders when it comes to their need for truth, understanding and a sense of justice, yet that is what we are getting in the Bill.
The breadth of the powers in the clauses is striking. The Secretary of State will be able to remove a jury and a sitting coroner on almost limitless grounds—national security; relations with any other Government, no matter how bad their repute; and the public interest—to be defined at the whim and with the private knowledge of Ministers, but to be undisclosed and unexplained to the public, as ever. In short, the discretion is unlimited and untrammelled. The Secretary of State will have the power to sack juries and coroners if and when he likes. It is the Secretary of State who will have that power, not a judge, who makes a decision after hearing submissions from parties. A politician will control what this special area of the judicial branch of the state is to do. So much for the independence of the judiciary.
It is not just any politician who will have this power, but one who will too often have a conflict of interest, as other hon. Members have said. Juries are required in inquests when there may have been wrongdoing or negligence on the part of the state, yet who will get to decide whether there is to be a jury? Who will get to decide whether to step in and put a stop to a certain coroner and jury if they do not like the way in which an inquest is going? Who will get to decide whether to
appoint a select special coroner of their own? The answer is the Secretary of State, and that is a fairly breathtaking reach on the part of any Executive.
Jeremy Corbyn: As far as I am aware, the vast majority of jury coroners’ inquests take place where the death involves the operations of an arm of the state—the military, the police or some other body—so the power is not just one of appointment; it is specifically a power of appointment where the state itself is involved.
Mark Durkan: The hon. Gentleman reinforces the point that a number of hon. Members have made. The state might have issues to cover up or its own interests or those of its agents to protect, and it is in a position to do so. It is even in a position to protect the agents of another state, no matter how unworthy that other state might be. That is the kind of law that this Parliament is being asked to approve tonight. The Secretary of State will not only be able to sack the sitting district coroner and the jury and take an inquest off them; if he so wishes, he will be able to sack the special coroner and then appoint another one. That is how far the Government have gone on this issue.
I am not sure that I could fully agree with the hon. and learned Member for Beaconsfield (Mr. Grieve) that this is just some messy lay-by that the Government have stumbled into. They seem to be going some distance with these proposals; they have worked their way around the board, passed “Go” and collected £200. I find it hard to believe that the Government have got lost here. They have ended up somewhere where they get all the control and hold all the cards when it comes to inquests. How real is the supposed veto that the Lord Chief Justice would have? That is a cosmetic move by the Government, because it would be almost impossible for the Lord Chief Justice to exercise the veto without causing huge controversy and difficulty. In reality, the Secretary of State will get to choose whom he or she wants.
Yet again, we witness the right to a jury being stripped away. The Minister earlier stressed that the non-jury courts in Northern Ireland will no longer be Diplock courts, because they will have a different legislative basis, However, clause 66 means that we will not only have continuity Diplock courts, but Diplock inquests, in which juries will be prohibited on the say-so of the Secretary of State in cases in which they would otherwise be involved. Juries could even be, in effect, sacked.
What message does that send to the families whose loved ones’ deaths are the subjects of the inquests? What message does it send out to jurors, who are responsible, law-abiding citizens who are prepared to play their role and do their civic duty on a jury? How would they feel if, for reasons unexplained, they were suddenly sacked and disposed of? It would be a scandal if that were to happen in any case, but we are told that this is a matter of administrative convenience and could be done for diplomatic comfort, for the sake of relations with other countries. It will certainly be for the convenience of those who have something to hide or who want to hide something for others.
If the Secretary of State is going to go so far as to remove the jury and if we have measures to control the business of inquests in terms of secrecy, is it too far fetched to worry that the next step will be to exclude the press and families, or even everyone? That is the dangerous
logic of where this is headed, and that is why the Government need to put a halt to it now and leave such matters to the anticipated coroners Bill. It is entirely wrong that we face the prospect of the Secretary of State acting as the puppet master in inquests in which, as my hon. Friend the Member for Islington, North (Jeremy Corbyn) pointed out, the state may have much to hide. In some cases, the state may have little to hide but will still go to these offensive lengths to hide it. That must not and should not be done.
Inquests must meet certain standards, as Jordan v. UK, Edwards v. UK and other cases that have been taken to Europe have made clear. The first standard is that they should be independent, both institutionally and in practice. How does that standard sit with one side in the proceedings having the power to sack the jury and choose the coroner; to sack that coroner and choose another one, and to control what happens with secrecy?
Inquests must also be capable of leading to a determination of responsibility and the punishment of those responsible, yet in Northern Ireland there is no possibility of bringing a verdict of unlawful killing. Another standard is that inquests must be prompt, yet there are cases in Northern Ireland in which inquests into murders in the 1980s—there is even one in the 1970s—still have not happened. We still have 20 inquests outstanding involving 30 deaths from the troubles.
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Inquests are meant to allow for sufficient public scrutiny to ensure accountability. With the jury sacked and, I have no doubt, with other powers and restrictions to come, that is clearly on the wane. Of course, inquests must allow the next of kin to participate, yet that too is under threat from the direction of travel that the Government are taking. Hon. Members should be in no doubt that these powers will be not only used, but abused.
Let me give an example of a case in Northern Ireland. Roseanne Mallon, a 76-year-old woman, was shot dead by loyalists in 1994. Her sister was shot, too, and she took a civil action against the Ministry of Defence. In the context of that action, by some miracle, she discovered tapes held by the Army that revealed that her house was under observation by members of the Special Air Service—the SAS. They saw the loyalists arrive at the house and saw what was happening. In fairness, they radioed back to Mahon barracks to say what they had seen and to ask for instructions. Mahon barracks told them to do nothing and that was that.
That information came up during a civil action, but in context of the inquest the coroner asked for a copy of the tape from the MOD, which flatly refused to provide it, God alone knows for what reason. Maybe it was for reasons of national security or the public interest, but whatever the MOD’s grounds for holding that clear evidence, which is relevant to an inquest, the Government will be able to use those same grounds to sack a jury and to dispose of the inquest, too. So that inquest still has not happened. Neither have inquests in the shoot-to-kill cases from the early ’80s, nor those in the cases from the late ’90s of Raymond McCord and Sean Brown. Such a situation leaves families wondering whether inquests are being stalled until one generation of the family dies off. It leaves them feeling that the state feels that time is
on its side and that it can play it as long as it takes—and, of course, as the families say, the new measures are then brought forward.
In Northern Ireland, there is a consultative group looking at issues of the past, appointed by the British Government and led by Lord Eames and Denis Bradley. The Bill’s provisions leave a lot of people with the sense that some of the unresolved cases that have not been the subject of inquests will be crudely disposed of using the new powers. People such as me will not be in a position to disarm people of that suspicion unless the Government move to halt the measure now. Families are left without loved ones, suffocating with frustration that they cannot get truth or understanding about their situation. Rather than meeting their situation with truth and justice, the Government are creating more obstruction and more obfuscation.
My hon. Friend the Member for Islington, North asked my hon. Friend the Member for Hendon (Mr. Dismore) whether there were such powers in other parts of the world. My hon. Friend the Member for Hendon rightly resisted going on a comparative world tour of such matters. I draw the attention of the House to a fact about the clauses that we are discussing tonight, which concern not only Northern Ireland but the whole of the UK—or certainly England and Wales, at least. They are uncannily similar to a legislative provision made in another Parliament, which allowed the Minister to provide
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