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3.15 pm

I spoke to the Rodneys’ solicitors yesterday, who made it clear that if the Government do not accept the amendment today, they will lodge a case with the European Court of Human Rights over the Government’s failure to comply with the promptness requirement inherent within article 2—the right to life—of the European convention on human rights.

Jeremy Corbyn: I agree with the hon. Gentleman and he is correct to refer to that case. Is he confident, however, that the Lords amendment will bring about the required timetables necessary to prevent the trauma that families go through, waiting months, if not years, for an inquest?

Chris Huhne: I am not confident that this is the last word on the subject. I agree that we will need to consider reforms to the coronial system and I believe that a coroners Bill is, frankly, overdue. Many other issues need to be dealt with to speed up inquests and ensure that adequate and efficient investigation takes place. I believe, however, that the Lords amendment is a step forward and we should not allow the best to be the enemy of the good. In this case, I hope that the Government will accept the amendment, not least because it will avoid them yet further embarrassment in being arraigned before the European Court of Human Rights over their failure to abide by article 2. The Rodney family’s lawyers are confident that their case will be successful. I am no lawyer, but my advice is the same.

We must not forget the Government’s promise a year ago to change the law to allow this inquest to go ahead. Today, the Government have a chance to honour their pledge. The amendment does, it seems to me, strike a sensible balance, bearing in mind that we are entrusting this matter to a very senior member of the judiciary, as the hon. Member for Ashford (Damian Green) pointed out. It is simply not the case that the amendment would allow a wide disclosure of very sensitive material, as Lord West, the Minister in the other place, claimed it would. It would allow the disclosure only of RIPA-related material, and would allow that only when a High Court judge was sitting as a coroner and was satisfied that the material was essential to finding out how someone died.

Mr. Hogg: What happens if a High Court judge concludes that disclosure is essential to enabling the matters that are required to be ascertained to be ascertained, but also concludes that it is contrary to the national interest? The amendment is silent on that point.

Chris Huhne: The right hon. and learned Gentleman is far more versed in these matters than I am. However, I agree with the hon. Member for Ashford that if we are to entrust a High Court judge with such a degree of flexibility, that is something that he will be able to decide within the bounds of deciding whether an action is essential. If the amendment proves to be inadequate in enabling a balance to be established in the specific
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instance of the Rodney case, we shall have—if the Minister is to be believed—an early opportunity to correct ourselves. As the right hon. and learned Gentleman knows, the House has a long tradition of eating its words and changing its mind, and long may that be so.

We must not forget that at the heart of the amendment is a dead man’s family: parents who are unable to grieve properly for their son because they have been denied the most basic of rights—the right to a fair hearing on why he was shot by an agent of our state. Even at this late stage, I urge the Minister to reconsider.

Jeremy Corbyn: I will be brief.

I spoke on this subject during our earlier debates on the Bill. Although all the publicity was given to the issue of periods of detention, I considered the issue of secret sittings of coroners’ courts to be of greater importance to anyone concerned about liberties. The number of days for which people are detained is relatively arbitrary, but the provision on coroners’ courts would have been extremely serious, so I was very pleased when the House of Lords came up with a compromise amendment.

Let me record my thanks to and appreciation and admiration for the organisation Inquest, referred to by the hon. Member for Eastleigh (Chris Huhne). That organisation, which is based in my constituency, has done amazingly good work over a long period in supporting the families of people who have died in custody. Nothing is popular about such cases, but the organisation has been dogged in pursuing them. I think we should appreciate the value of civil society organisations of that kind which do so much to promote decent standards and liberty, and which help the House to produce better legislation.

As the hon. Gentleman pointed out, this is not the first occasion on which the House has eaten its words, and it will probably not be the last. I was relieved by the decision reached by the House of Lords, but I hope that the Minister will be able to help us further. I understood that the Government had accepted the Lords’ view, and I am therefore surprised that they are asking us to reject the amendment. The Minister outlined the provisions of new legislation, which was helpful—this is not a criticism—but I am slightly worried that we will not be revisiting the whole issue in the new coroners Bill. It seems that we shall return to where we were previously in this Bill, with what I consider to be the dangerous precedent of court hearings taking place virtually in secret.

A death in custody, a serviceman’s death or a death as a result of a police shooting is obviously horrific. It is devastating for the family involved, who may understandably have great difficulty coming to terms with the reason for the death and even greater difficulty coming to terms with the complete lack of evidence offered to them in public, and the failure to make any information available to them. The trauma is very great. In my constituency, I have dealt with the families of people who have died in police custody or in similar circumstances, and I know that the trauma they undergo—constantly questioning what went on, but not being allowed to know—is very serious indeed.

The other punishment for families is the lack of a timetable. If the inquest is repeatedly delayed—for years on end, in some cases—there can be no closure for those families. The bereavement goes on, and they will never
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entirely get over the loss of a loved one, but at least the completion of a judicial process provides an element of closure that allows them to move on a little. Perhaps the Minister will help us a little on the question of timetables as well.

I have some understanding of why the House of Lords came up with this compromise. It is clearly far better than what was in the Bill before, in that it empowers a High Court judge to decide whether or not material is sensitive. Nevertheless, I am slightly nervous about the amendment. I feel that it is too easy for agents of the state, be they the armed forces, police, social service departments or the health service, to say, “Hang on. There’s something very peculiar and sensitive about this”, and to tell the judge that they would prefer the material not to be disclosed.

I hope that a judge would stand up for the public interest and the interests of the family, but I think the best way of enabling that to happen is to make it extremely difficult for any degree of secrecy to surround any death in custody. If we do not make that difficult now, as we pass the legislation, further down the line it could easily become routine for public bodies to say, “We want the hearing to take place in secret because it will be far too inconvenient for us if all this comes out.”

I assume that if the Government have got the legislation wrong, which is conceivable, article 2 of the European convention on human rights will form the basis of a case that could go to the European Court. Article 2 places a positive duty on the state to investigate a death in custody with an inquiry that is on the state’s own initiative, is independent both institutionally and in practice, is capable of leading to a determination of responsibility and the punishment of those responsible, is prompt, allows for sufficient public scrutiny to ensure accountability, and enables the next of kin to participate. Unless all those criteria are met, we will clearly fall foul of a European convention that we support. I hope that they will all be met, either in this Bill or in the new coroners Bill that we shall deal with in the next Session. The European convention does actually mean something, and it is quite an important mechanism of defence.

Time is of the essence. I was worried by the Minister’s reference to another body that, acting as an intermediary between the horrific event of a person’s death in custody and the opening of an inquest, would conduct some sort of investigation. That strikes me as a likely recipe for delay, for the creation of a fog around something that ought to be clearly visible, and for even more pain and stress for the families of those who lose their lives in the circumstances that we are discussing. It is up to us as a Parliament to ensure that agents of the state who cause a person’s death are brought to justice, and above all that the families of those who have lost their lives are fully aware of all the evidence and of what caused the deaths of their loved ones.

Mr. Hogg: Before I deal with the tightly drafted new clause tabled in the other place, I want to build on what the hon. Member for Islington, North (Jeremy Corbyn) said. I entirely agree with his underlying belief that when the agents of the state have caused deaths, it is essential that the surrounding facts are made apparent, through inquests and to the families.

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In Committee, I deeply opposed the provisions then incorporated in the Bill, because they enabled the Government to withhold whole classes of information from an inquest—for instance, information that would damage this country’s relationship with another power, and information that would be damaging for any other proper reason. I cited a specific example, which I shall repeat now.

Let us suppose that someone died in the course of extraordinary rendition—which is not impossible, given the nature of extraordinary rendition—and happened to be in an aircraft that touched down at Heathrow. I can envisage the Government intervening to prevent details of the death from being made public in order to protect their relations with the United States. That is but one example. I was deeply concerned when the Minister said that the new coroners Bill would incorporate most of the language of the Counter-Terrorism Bill as it was in Committee, and I would robustly oppose such wide powers being given. Therefore, I agree with much of what the hon. Member for Islington, North said.

3.30 pm

I shall try to make my second point with some delicacy, as I do not want to do what I should not be doing in this context. I served in the Foreign Office for five years, in the course of which I saw a great deal of intelligence information because I had a responsibility, subject to the Foreign Secretary, for GCHQ. There are two areas that ought to concern the House, one rather more so than the other. The anxiety has always been the disclosure of techniques. I suspect that that is less of a problem than we think, but I agree that we none the less need to address it, and it is very good news that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) is sitting on the Chilcot committee. The other point, on which there is not sufficient focus, is whom we target for the purposes of intercept. As Members will appreciate, that is not always just individuals—it is sometimes institutions and others, and it may well not be in the public interest for the identity of some of the targets to be disclosed. That matter has to be seriously considered, and addressed in measures that come before this House.

There are defects with the proposed new clause, but I shall vote for it as it is an important step in the right direction, and if this House were to pass it, further safeguards could be built into it in the other place. Starting from the proposition that there are the problems with the disclosure of intercept information that I have identified, I go on to the next proposition, which I think most people will agree with, that it is very important that credible and relevant evidence should always be available to a court or inquest, unless there is some overwhelming reason to the contrary. That is the proposition that is reflected in the new clause. There is a difficulty—both the Minister and I have referred to the nature of the problems—and the other place sought to address it in two ways: first, to confine the coroner with the relevant powers to a judge of the High Court; and, secondly, to confine the circumstances in which the order-making power can be exercised to those set out in proposed new subsection (8B). There is a problem with that provision, because the High Court judge may direct a disclosure only if satisfied that the requirements of (8B) are satisfied in that disclosure is

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in other words, we cannot ascertain the relevant facts unless we have the intercept material.

The problem is, however, what if that intercept material is itself injurious to the state? For instance, it might identify a body, person or institution as being targeted when it is undesirable for that target to be disclosed. From reading the language of (8B), it seems to me that if the judge concludes that disclosure of the material is essential for the proper ascertaining of facts, notwithstanding the injurious nature of the disclosure the judge may well be obliged to order the disclosure. What is not provided for in (8B) is the balancing exercise. My hon. Friend the Member for Ashford (Damian Green), for whom I have the greatest of respect, says, “Well, you can expect a High Court judge to exercise good sense.” Of course we can, but a High Court judge, or any old judge, has to exercise his powers in accordance with the criteria laid down by Parliament, and if Parliament does not say that respecting the national interest is a relevant criterion, I am by no means certain that, however sensible a High Court judge may be, he or she would be able to take steps to respect that.

Mr. Heath: The right hon. and learned Gentleman is simultaneously right and wrong. He is right that the new clause does not contain the qualification requiring the coroner to take into account the interests of national security—I would be slightly more circumscribed, in that I would use that term rather than the “national interest”, which is the term he uses. He is wrong, however, in that that is to an extent covered in the previous provision—proposed new subsection (1)(d)(ii)—where the coroner has the discretion to determine whether the information that has been provided stays with him or her or is passed on to other persons or parties to the inquiry. There is a feeling that the current wording of the new clause gives no indication of how that discretion should be applied.

Mr. Hogg: I always enjoy debating with the hon. Gentleman, and I very often agree with him, but he has a problem in criticising me on this issue, because it is the jury who are responsible for the ascertaining of facts, and under (8B) the coroner is entitled to make a disclosure where it is essential for the ascertaining of facts. As the jury is the only ascertainer of fact, he does not have much discretion, because in order for the facts to be ascertained they have to be disclosed to the jury.

Mr. Heath: The right hon. and learned Gentleman is right in the context of a jury and a coroner’s court. I may be wrong, but I assume that the new clause is intended to give the coroner the discretion to allow for a reduced version of the material in a form that does not prejudice national security to be passed to the finders of fact: the jury. I agree with the right hon. and learned Gentleman, however, that that is not clear within the terms of the new clause as worded and that further refinement is required, but that does not stop me supporting the new clause.

Mr. Hogg: We are as of one in this sense: we see merit in the approach, but we recognise that the new clause is not perfect, and we think that the House should support it in the hope that it will be further amended in the other place.

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Let me conclude by explaining how it could be improved further. A test that requires the balancing exercise in terms of national security considerations could be incorporated into (8B), so that it would be for a High Court judge to decide whether information, although essential, was too injurious to be disclosed. I see merit in taking that step. Another way forward would be to allow that decision on whether there should be disclosure to be treated at the preliminary point, which could go to the Court of Appeal. I think that I would be content for the Court of Appeal to be a final arbiter on the matter, as it would be very sensitive to the question of national security. I could see the decision of the trial judge—the High Court judge—being treated as a preliminary point, to enable the Court of Appeal to rule on it before the inquest proceeded further. There is another way of addressing the problem: the High Court judge sitting as the coroner could determine, in very special circumstances, that there should not be a jury at all. In other words, the judge could determine that the jury, if it is already sitting, should be removed and, if it is not, there could be a requirement for the judge to sit alone as the coroner. Additionally, of course, there is always the power to restrict publicity.

Any or all—probably all—of those measures could properly be incorporated into the new clause. If that happened, the measure would deal with most of the Minister’s anxieties. It would also address the feeling around the Chamber that intercept evidence should be used in appropriate cases, so that the families and everybody else can have as many facts as are available surrounding a death.

Mr. Garnier: The interchange between my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. Member for Somerton and Frome (Mr. Heath) has been more illuminating than is often the case in debates of this sort. My right hon. and learned Friend has analysed not only what is wrong with the Bill and the Lords amendments, but how they can be improved. I was not a Minister, but I was on the edges of Government when he was in Government. I entirely accept what he says on the need, occasionally, for information to be kept out of the public domain. That is simply a matter of common sense, and I hope that none of us is naive enough to think that on every occasion, every piece of information in the hands of a state agency or the Government should be made public. Clearly, there are times when national security and the interests of criminal investigation require certain pieces of information to be kept out of the public’s sight.

Having said that, the implied, but not the express, position of a number of Members who have spoken in the debate, perhaps excluding the Minister, is that, by default, justice should be in public. When all things are equal—they rarely are—coroners’ courts, whether chaired by a High Court judge or other judicial officer, should be in open court, with all relevant evidence being adduced, either before the coroner, if he is sitting alone, or before the coroner and the jury; and there should be full disclosure of all evidence between the interested parties and the court.

The group of Lords amendments that we are briefly considering lead me to agree again with my right hon. and learned Friend, this time on how the kind of decisions that we are talking about should come to be
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made. As I understand it, at the moment, the Government want to place in the hands of the Secretary of State the power to issue certificates. That is unhealthy. It leads to secret government, let alone secret trials. Like my right hon. and learned Friend, I think that it would be much more sensible and, indeed, publicly more acceptable, for questions of that sort to be decided by the presiding coroner, be he a High Court judge or other judicial officer. In that way, the matter could be argued. It could be argued in chambers or in private, but it could none the less be argued.

Clearly, such procedures are not novel. For example, espionage cases are tried at the central criminal court; and cases involving matters of acute sensitivity often involve applications to the judge that certain parts of the evidence, or all of it, should not be disclosed in public, meaning that it should not be heard in the presence of people in the public gallery or members of the press. Such things do not happen every day, but they happen quite frequently, so I do not see why a similar procedure could not be drawn across into the system of coroners’ inquests. The Lords amendment mentions a High Court judge, but I have no doubt that any experienced coroner, circuit judge or whatever judicial officer is appointed to deal with any inquest, could make a decision on the grounds of national security, public safety or whatever, in a just and sensible way, case by case.

My second point is this: we were promised a coroners Bill in this Session’s draft legislative programme and in the last Queen’s Speech, and we are being promised one in the coming Queen’s Speech, and it strikes me that the issues we are discussing ought to be dealt with discretely, in the round, in a coroners Bill. However, measures are now being tacked on to a Counter-Terrorism Bill.

This brings into our discussions all sorts of interesting influences. Hon. Members will remember the problems that the Prime Minister got himself into with the Government of Iceland, who were deeply upset that Icelandic assets in this country had been frozen under counter-terrorism legislation. It so happened that the Act under which the Government froze those assets in London was the Anti-terrorism, Crime and Security Act 2001, and it was under the “Security” bit that the assets were frozen. However, the Act’s rather long title did not fit into the headline space of whatever the equivalent of The Sun is in Reykjavik, so Icelandic people saw only the “Anti-terrorism” bit. Unsurprisingly, they were upset.

Here, we are dealing with matters to do with inquests in a Counter-Terrorism Bill. Of course there is sometimes a connection between terrorist activity and inquests. For goodness’ sake, the tube and bus bombings of July 2005 made that only too clear. However, if the Government are to be taken at their word on this occasion—I do take them at their word from time to time—why will they not lift part 6 out of the Bill and put it into the new coroners Bill, which they should introduce early in the next Session? That might lower the temperature.

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