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3.45 pm

I should like to say, in parenthesis, that my hon. Friend the Member for Ashford (Damian Green) was entirely right to express concern about the application
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of article 2 of the European convention, as was the hon. Member for Islington, North (Jeremy Corbyn), who also brought that point to the fore. A further point that I want to draw out from what the hon. Gentleman said earlier relates to the nature of the deaths that we are talking about. The provisions will deal with deaths in police custody and possibly even deaths in prison custody, depending on the character and antecedents of the deceased and on the geography of the location of the death. The hon. Gentleman will remember that—in the last Parliament, before the 2005 general election, I think—we passed the Corporate Manslaughter and Corporate Homicide Act. I might have got the chronology wrong, but as I recall it, the deal was that deaths in custody, in the Prison Service and in police cells, were not immediately to be brought under the remit of the Act. There was to be a delay of two or three years—

Mr. Hogg: I think that it was more than that. I think it was seven.

Mr. Garnier: My right hon. and learned Friend says that it might be seven years. The Minister will have that information available to him—

Mr. Hogg: He seems to be looking to his left.

Mr. Garnier: I am making a suggestion; I have no power over those who work behind the Chair. However, I dare say that somebody with a bit of initiative, such as the Minister, could find out the answer.

The point is that there will come a time when deaths in custody, involving those either in the care of the police or in the care of the Prison Service, might also have to be considered under the terms of the Corporate Manslaughter and Corporate Homicide Act. When we come to consider these provisions—I suggest that we do so under a coroners Bill, not under this legislation—the House will need advice from Home Office Ministers on the marriage of that Act and inquests into deaths in lawful custody. I urge the Minister to bear that in mind, because I can see all sorts of problems coming down the track. Trials under the corporate manslaughter legislation will be heard in the Crown court. Is it being suggested that, if someone has allegedly been killed by the police under the provisions relating to corporate manslaughter, the trial should be heard in secret, and only by a High Court judge, subject to the provisions of the Counter-Terrorism Bill?

It is not only members of the public, be they British or foreign nationals, who will be drawn into the inquest system. Military deaths have been mentioned. We all know of the huge delays in the timetable for inquests into those killed in action or on active service in Iraq. Their bodies are brought back to the UK through Brize Norton, and the coroner for Oxfordshire is therefore responsible. One particular deputy coroner has done most of the work. However, because there is such a dearth of qualified coroners to do the work, there are long delays, which leads to emotional and other problems for the families, as other hon. Members have said.

Yes, the legislation is designed to provide an effective coroners’ system, but effective for whom? I suspect that it is designed to be effective for the Government, because they do not want any embarrassment. They do not
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want coroners to say disobliging things about how the Ministry of Defence, or some other agency of the state, has acted.

The issue is even more complicated because while there are people who are killed in action or on active service in open battle—we are all too sadly used to seeing television reports of such incidents nowadays—there are people killed whom the Government would rather we did not know were on active service. We cannot be na├»ve about the need to keep some matters out of the public domain, but the families of those who serve in the special forces or the secret services have as much of a right to know how and why their loved ones were killed or died as those who are grieving the loss of someone killed in a motor accident or a train crash—a more ordinary, but none the less terrible, death.

We cannot just assume that we are talking here about cases of terrorists or suspected terrorists dying in prison or police cells. We may be dealing with the deaths of people who are seeking to protect us from terrorists, and their families being prevented from having full access to information about those deaths. There are two ends to the spectrum and plenty of grey territory in between. If we are to pass this Bill as it stands—and we are doing this in the wrong order, because we should have a coroners’ Bill in the new Session—we must come as close as we can to article 2 compliance; otherwise we will be misbehaving.

My final point is about the current use of public interest immunity applications and certificates. My right hon. and learned Friend the Member for Sleaford and North Hykeham is an experienced practitioner in the criminal courts and he will be well aware of the use that those acting on behalf of the Government—and I use the word “Government” in its widest sense to include the police, the secret services and so on—make of applications for PIIs, so that sensitive information does not reach the public domain. Again, that is not an unusual procedure, and we should learn from it when we consider the Lords amendments and the Government’s response to them. There are practical solutions that enable us to comply as best we can with article 2 and to allow the bereaved to have the necessary information to understand why their loved ones were killed or died. There is sufficient good will across this House and between the two Chambers of Parliament to enable us to arrive at a sensible solution. I am not sure that the Government’s solution can be classified as sensible at the moment.

Of course, I accept that Lords amendment No. 106 is not ideal. It is not perfect. However, as others have said, we can build on it. I suggest that we do so.

Mark Fisher: The debate has been unusually thoughtful. Every Member who has spoken has expressed not uncritical sympathy with and support for Lords amendment No. 106 without endorsing it wholly. From the thrust of what the House did not say, it is that it is clear that it is unhappy with the level of secrecy that could and will arise unless we do something about it.

The House is in the debt of the Minister, who thoughtfully allowed the debate to range widely in his opening remarks. He invited the House to speculate and to think about both the present situation and the future. That was the right thing to do and was very helpful. Whatever we decide, the coroners Bill is coming up
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and it would be a great mistake if we then reverted to all the things that we are frightened of and worried about tonight.

I know that the Minister has been listening. He made it clear that he is acutely aware of the balance that is needed and the pain that is caused to the relatives and families of people who have died. He sees the tension and the paradox between the two. I do not think that he needs convincing, but I hope that the Government will understand that fact and will ensure when they draft the coroners Bill that the balance is pitched rather differently. Our job, as a House of Parliament, is to ensure that people and their relatives are properly protected and, if we have to balance it one way or another, to ensure that there is greater rather than less disclosure.

Mr. Heath: I take a slightly more generous view than the hon. and learned Member for Harborough (Mr. Garnier) about the Government’s original intention. There was concern that there had been unreasonable delay in the case of few inquests that were held up by reason of the fact that material could not be provided under the present system, in the Government’s view, that would enable the facts to be properly ascertained.

My argument was not with the Government’s intention—if I am not being naive in taking such a generous view—but with what they proposed as a solution. In the Bill passed by the Commons, the solution proposed by the Government was entirely unacceptable. As we have said on a number of occasions, it was unacceptable because the Executive were taking the decision in cases where the problem was the death of an individual at the hands of agents of the state. Let us remember that. The state was going to determine how those facts were to be ascertained and, indeed, whether they would ever see the light of day at all. In principle, that was unacceptable.

It was unacceptable for the Government to determine, effectively by order, that a jury would not sit in such an inquest. It was unacceptable for a Minister in effect to determine that an inquest should be held in secret, behind closed doors, with the result that the public and even people with a legitimate interest in the case were not admitted. That is quite inconsistent with how we have always historically held inquests in this country. It was also entirely unacceptable that hand-picked coroners, chosen and appointed by Ministers, should be the persons who would inquire into the circumstances of a death at the hands of agents of the state. That proposal was so extraordinary that it was common ground among many hon. Members that it was unacceptable.

4 pm

There is a further difficulty with the Government’s original proposals, which I raised with the Minister in an intervention and which was picked up by the right hon. and learned Gentleman whose constituency I can never quite determine—

Mr. Hogg: Me?

Mr. Heath: I am referring to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg)—I think that I have got it right. My point was that, even if everyone accepted the arguments that Ministers adduced to support their contention that the provision was necessary for national security, they were
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not going to be content with that. Instead, in clause 77’s proposed new section 8A to the Coroners Act 1988, they were determined that inquests should be held in secret

however that “public interest” would be defined outside of national security. In other words, things could be secret simply because Ministers certified that they needed to be in the interest of avoiding embarrassment, or for some other reason.

I am already distressed by the extent to which relations with other countries seem to have a bearing on the conduct of court proceedings in this country, which I had always thought were immune from that sort of political pressure. For it to be written into new statute that a coroner’s inquest would depend on whether another country or its rulers would be offended is to me abhorrent. I will not have coroners’ inquests in this country determined and dominated by the mood or interests of some princeling in the Arab world, or wherever else.

Mr. Hogg: May I reinforce the hon. Gentleman’s point? If a British subject died in Guantanamo Bay as a result of the treatment that he or she had received there, and the body was repatriated to the UK, I anticipate that there would be an inquest into the circumstances of the death. However, I expect that the Government would be extremely embarrassed about having conditions at Guantanamo Bay revealed to the public, and that they would therefore utilise the clause to which he is referring.

Mr. Heath: Of course they would, and we know that perfectly well. That is why it was so objectionable that the proposal was included in the Bill’s original text.

Mr. Garnier: We do not have to use a hypothetical example, as we know from friendly fire incidents in Iraq that the US was extremely reluctant to allow evidence about what its forces were doing to be used in the inquests into the deaths of our service men and women. We already have the book; we just need to read it.

Mr. Heath: Precisely so, and we now know perfectly well that a fraud investigation can be stopped at the request of a potentate of another state. If an ally were to ask us not to proceed with an inquest because it might be embarrassing or cause problems domestically or internationally, we know that that request would be acceded to. That is what is so unacceptable.

I was surprised and dismayed by what the Minister said in response to my challenge on this matter during his opening remarks. He seems to take the Bourbonist view that the Government will learn and forget nothing as a result of their experiences in the discussion of this Bill so far. Apparently, they will come back in the coroners Bill with precisely the same form of words that they are abandoning here. We are moving nowhere towards finding a satisfactory system. The Government will face exactly the same arguments against their proposals in the context of the coroners Bill, and eventually those proposals will be defeated in another place and we will
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be back to square one. We will not have moved forward one inch in providing for a quick, open and proper inquest for those who need one.

There are strong reasons for not waiting for the coroners Bill and for trying to find a proper solution even at this stage. Those in another place who proposed the amendment have done a good job in pointing us towards a solution. If I were in the Minister’s place I would be grasping that solution to try to find a workable way, in the Government’s terms, to accept it. Some of the Government’s arguments against the proposal are nonsense—for example, the idea that it is a lottery as to whether a High Court judge might be appointed to sit in a particular inquest. It is not a lottery; it is a matter of design. If the case required the appointment of a High Court judge as coroner, that is what would happen so that the inquest could go ahead. The Government need have no worries about that.

The advantage of appointing a High Court judge is that it would give comfort to the Government that there would be a sufficiently high level of judicial consideration of the arguments that would inevitably be in their submission to ensure that they were properly taken into account. The High Court judge provision is a sop and a comfort to the Government, so they can have no argument against it.

A great advantage of the proposal is that proceedings would be open—there would be a normal inquest in that sense. Another advantage is that there would be no delay. I heard what the hon. Member for Islington, North (Jeremy Corbyn) said—indeed I have some reason to agree that we must make sure that such cases are dealt with expeditiously—but there is nothing inherent in the proposal that would cause further delay. The right to an inquest jury is preserved, as is absolutely correct.

The most important thing is the presumption that the material necessary for finding the circumstances of death will be provided unless there are good reasons why not. If there were good reasons why not, the coroner would have the opportunity to discover them and would make available to the jury as much material as possible under the criteria.

The one difficulty is the problem that was the subject of an interchange between the right hon. and learned Member for Sleaford and North Hykeham and me about the criteria that the High Court judge would use to determine the submissions before him. We could refine the proposal to cope with that problem, although that does not for one moment suggest that the solution is imperfect. Indeed, as the hon. and learned Member for Harborough said, it is regularly done in criminal courts. All we need is accompanying protocols to make the amendment function satisfactorily.

Even at this late stage, I hope the Government will realise that the proposal is a prospective solution to their dilemma. I strongly support it and I hope other Members will do so, too. It has flaws that need further attention, but if Ministers really think that in the next Session they can present us with a coroners Bill that contains the same clauses that we are knocking out today because they are so unsatisfactory from the point of view of many Members of the House and the majority in another place, they have another thing coming.

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Mr. Coaker: With the leave of the House, I shall briefly respond.

I thank my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher) for his remarks. My initial remarks were deliberately wide and I hope that has helped our discussions and debates. The hon. Member for Somerton and Frome (Mr. Heath) and I have, in the past couple of years, debated a number of Bills in various Committees. I cannot always promise to deliver what he wants, but I hope his experience is that when I have said that the Government will listen to what is said, even if that does not mean that we introduce measures with which he is totally happy, there is evidence that some listening has taken place. That is the commitment that I have made and will make to various Members in private and in public as we take forward this measure.

Jeremy Corbyn: Will the legislation that is to be introduced in the next Session appear in the form of a Bill, or will there be a period of genuine consultation, when the views—the very serious views—that have been expressed here today, for example, can be exchanged with the Minister?

Mr. Coaker: To clarify matters for my hon. Friend, let me say that the legislation will be in the form of a Ministry of Justice Bill, and I will make sure that Ministers at that Department are aware of what has been said in today’s debate.

Mark Fisher: Is this not an ideal example of the importance of not rushing straight into a Bill but engaging in wider consultation—not necessarily taking a huge amount of time? The views that have been expressed in the Chamber this afternoon reflect the views of other experts in the judiciary and the court system. Surely the Government would benefit from taking a few weeks before publishing their Bill in the next Session to listen and consult those who will be most involved? We have an ideal opportunity. We may not have to go back to the Green Paper and White Paper stage, but too many Bills are rushed into draft too quickly. Surely this is an example of a measure that needs consultation before being put into parliamentary draft?

Mr. Coaker: I am sure that my hon. Friend’s comments have been heard. Sometimes, it is a matter not of how long the process takes, but of whether some change is made to what is proposed. Hopefully, some of what has been said here today will be taken on board. I think that I have answered the points made by my hon. Friends about the new legislation: a Bill will be introduced in the next Session, and it will be a Ministry of Justice Bill.

The fundamental difficulty with amendment No. 106, and the point of disagreement, is that inquests must be held with a jury in certain circumstances and juries are finders of fact. Accepting the Lords amendment without the provisions in part 6 would mean that for the inquest to proceed, sensitive material would have to be disclosed to the jury, which would risk its then being disclosed further. We have all tried to find a way to balance national security with the needs of families and the need for a proper system that allows those who have suffered the death of a loved one to have a sense of closure, as far as that is possible.

I have the answer to the questions put to me by the hon. and learned Member for Harborough (Mr. Garnier), which I will give him—

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Mr. Hogg: And the rest of us?

Mr. Coaker: Now that I have found the answer, here we go. The hon. and learned Member for Harborough asked me a specific question, which no one but he understood, but it was a good point. It is not that the question was wrong, but our provision relates to inquests—a very few inquests—and does not extend to trials for any offence. Trials will proceed in accordance with the procedures for such proceedings. And that answers that question. [ Laughter. ]

Question put, That this House disagrees with the Lords in the said amendment:—

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