Clause
64
Certificate
requiring inquest to be held without a
jury
Mr.
Grieve:
I beg to move amendment No. 134, in
page 45, line 6, leave out ‘national
security’ and insert
‘preventing an offence with a
terrorist
connection’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 32, in
page 45, line 7, leave out paragraphs (b)
and (c).
No. 185, in
page 45, line 9, leave out paragraph
(c).
Mr.
Grieve:
We come now to part 6, which deals with inquests
and inquiries and is of some concern to me, notwithstanding the
helpful, useful presentation by the Government last week that
explained their reasoning in respect of this part of the
Bill.
Amendment No. 134
is intended to probe the Minister on the circumstances in which a
certificate will be issued for an inquest to be held without a jury.
Clause 64
states:
“The
Secretary of State may certify in relation to an inquest
that,”
in his
opinion,
“the inquest will
involve the consideration of material that should not be made
public...in the interests of national security...in the
interests of the relationship between the United Kingdom and another
country, or...otherwise in the public
interest.”
Owing to the
nature of the Bill’s original introduction, my understanding has
always been that this provision will apply principally to inquests
carried out in respect of matters with a terrorist connection, although
perhaps because of the scope of the powers under clause 64(2) it will
apply potentially in a much wider set of circumstances. I wish to probe
the Government on that
point.
The
words,
“in the interests
of national security...in the interests of the relationship
between the United Kingdom and another country, or...otherwise in
the public
interest”,
provide as wide
a definition as one can possibly get. The clause therefore goes much
further than dealing with terrorism cases. I had the impression that
the sort of case about which we might be concerned is where a terrorist
is shot dead by the police, and the police had intelligence information
relating to his activities that could not otherwise be made
public—something that I can see is a very real possibility. In
fact, the wording we are providing here potentially enables such an
appointment to be made in a much wider set of circumstances. It is for
that reason that I would seek some clarification from the Minister as
to what those circumstances may be.
Mr.
Hogg:
I rise to support what my hon. and
learned Friend the Member for Beaconsfield has said, but I do it more
robustly than he has done, because he has been rather gentle in his
approach to the Government in this matter. I remind the Committee of
the iron rule of politics, which I mentioned several sittings ago, that
once power is granted, it is always, on occasion, abused. Therefore one
has to ask the important question: should this power be granted in the
first instance? That takes one to the question, what in fact are we
doing in regard to this power?
I acknowledge
that jury trials in inquests are pretty rare. In the context of
inquests overall, they are a small minority. It is also to be
recognised that they are sometimes very important in terms of public
confidence. When difficult deaths occur, the public sometimes expects
there to be a jury. A good example of that is the jury that Lord
Justice Scott Baker convened in the case of Princess Diana. It may be
recalled that the Court of Appeal substituted a decision that there
should be a jury trial for the previous coroner’s decision that
there should not be one. That reflects the importance of jury trials in
difficult cases.
What we are doing here is
enabling the Secretary of State by himself alone to certify that a jury
should not be convened. The circumstances that have to be satisfied are
set out in new section 8A(1)(a), (b) and (c). I entirely agree with my
hon. and learned Friend that paragraph (c) is couched in the most
extraordinarily wide
language:
“otherwise in
the public interest.”
The
Secretary of State may well hold that there are many things that it
would not be in the public interest to disclose. Let me give some
examples.
Let us say,
for example, that a British national died in Guantanamo Bay and his or
her body was repatriated to the United Kingdom. At that point, a
coroner would have jurisdiction, and I think it is the case that the
public would expect there to be a jury-based inquest into why and how
that individual died in Guantanamo Bay. However, I can see the
Secretary of State saying, “Ah. This is not something that is
conducive to our relations with the United States, so paragraph (b) is
satisfied.”
Or let us say
that a plane carrying somebody who was the subject of extraordinary
rendition landed at Heathrow. We know they have landed in the United
Kingdom on occasion. Unfortunately, the person being transferred to
wherever was dead. At that point, the coroner—normally
speaking—would summon a jury; I am sure the public would expect
the jury to be summoned. Yet, the Secretary of State could say,
“Ah. We do not wish to see our relations with the United States
imperilled. We will have this thing without a
jury.”
Or let us
say there is a situation which is rather closer to what we have in our
minds at the moment. Say the police shoot somebody in a house. That
does not have to be terrorist based: they just shoot somebody. I can
well see that the Secretary of State may be persuaded, for example,
that it is not a very good thing for the public to know the engagement
rules under which the police are operating. They might dress it up by
saying to themselves, “Well, it is not a very good for
terrorists to know precisely what the engagement rules are that would
justify the armed police opening fire.”
Once we start giving powers to
exclude juries from inquests we can be quite sure that on occasion they
will be abused. For example, I have a case in mind—perhaps the
Committee has a case in mind—where a person was shot in
circumstances that are a bit hard to explain. The police may feel
uncomfortable about such a matter and seek to persuade the Secretary of
State that it would not be in the public interest to allow a detailed
inquest to be held and a certificate might be issued. As the Bill is
presently drafted there is absolutely nothing to stop that.
A number of amendments seek to
address this problem. My own preference would be to have some other
figure involved. I suggested that the Lord Chief Justice should be
required to agree that the criteria were satisfied. At the very least
we should strike out the phrase
“otherwise in the public
interest”
because, goodness knows,
that is as wide as it conceivably could be. My strong view is that this
Committee is in the business of safeguarding liberty and the public
interest.
We are not in the business of giving the Secretary of State the power to
exclude juries whenever it is in his or her opinion in the public
interest so to
do. 5.15
pm
Mr.
Heath:
I intend to speak to my
amendment No. 32, which is in this group. I will preface my
remarks by again saying how grateful I was for the opportunity to go to
the Home Office and discuss these matters with officials. It was
extremely helpful and it is a good Government policy to share views on
contentious parts of Bills in that way. Having said that, I am not
persuaded that the provisions within the Bill at the moment are an
appropriate way of dealing with a very circumscribed issue that was
described to us as a problem. I still believe that the much-promised
coroners Bill is the appropriate vehicle for reform of the coroners
system and for this purpose, notwithstanding that I understand that a
long-awaited inquest cannot be held under present
arrangements.
Some
fundamental principles of the coroners system and article 2 rights with
regard to the investigation of deaths are in danger—I put it at
no higher than that—of being compromised by the proposals before
us. There are two issues here: first, the inquest being held without a
jury and, secondly, the inquest being held by an appointed coroner and
in private. We are dealing at this point with the certificate requiring
the inquest to be held without a jury. The Minister may well say that
this would affect only a very small number of cases because the vast
majority of inquests—98 per cent., I think—are already
held without a jury. The 2 per cent. that have a jury present are the
most contentious of inquests and they are the ones that require the
most careful scrutiny because the death that has occurred involves an
agent of the state. It is right that people should clearly have the
opportunity to see that the state is not acting as judge and jury in
its own court and that there is proper scrutiny of all the arguments, a
proper investigation and a proper verdict. The public is rightly
reassured by a jury being present in those circumstances.
It may well be
that there is a very limited number of cases where there is a
difficulty with that and I understand that. I am not trying to disguise
the fact that there may be difficulties where there is evidently an
expectation that material will be revealed in the course of an inquest
that is prejudicial to our national security. I understand that, but
when I question whether a public interest immunity certificate cannot
suffice I am told that the measure is better than the PII system
because it will ensure that the eventual outcome is made
public.
Mr.
Hogg:
The hon. Gentleman’s point has substance. The
situation arises in terrorists trials. On the whole, notwithstanding
the jury’s presence, it would be impossible to conduct such
trials and admit quite sensitive material. There is no reason in
principle why some of that procedure could not apply to inquests,
although we may have to wait for a coroners Bill to see such measures
put forward.
Mr.
Heath:
The right hon. and learned
Gentleman is right. I can conceive of constructions that would enable
that to take place. I accept at face value at the moment the
Government’s intention and the arguments underlying it, but I do
not agree with it. However, I cannot accept
the way in which the proposed new section 8A(1) is drawn because, as has
been said, it is in the widest possible terms. The hon. and learned
Member for Beaconsfield was extraordinarily gentle with the Government
on the issue—I share those gentle criticisms, but I tend to take
a much stronger view on the matter than he appeared to. Perhaps he is
reserving his wrath for later in the
proceedings.
Mr.
Grieve:
I started gently, but we are
debating a number of proposed new clauses and a large number of
amendments in the group. The Government should first justify their
position. The amendments are probing and I want to hear what the
Minister has to say. I am also beginning to formulate in my own mind
the necessary response to the Government’s proposals, and I have
tabled new clause 13—I fear that we will not debate that this
afternoon but on Thursday at the earliest—which may propose
alternatives. I remain unhappy with the Government’s proposals,
but as a result of the briefing I have a much better understanding of
its intentions.
Mr.
Heath:
I now know that the hon. and
learned Gentleman and I are on a rising curve—a
crescendo—of indignation, which is welcome. However, even if I
accept for the moment the Government’s intentions on the clause
and that there might be circumstances in which a Secretary of State
should certificate that an inquest should be held without a
jury
“in the interests of
national security”,
I see
not the slightest reason why that argument should be extended
to
“the interests of the
relationship between the United Kingdom and another
country”
or to the
sweeping
generalisation,
“otherwise
in the public interest”.
Amendment No. 32 is not probing
and I suggest that amendment No. 185 should not be probing. They would
be substantive amendments. The phrase
“otherwise in the public
interest”
effectively
immunises the provision against any challenge. There is always a
circumstance
“otherwise
in the public interest”,
that the Secretary of State could adduce
to allow him to certificate an inquest. I am not prepared to give such
a power to a Minister of the Crown under those
circumstances.
In
respect of the
phrase
“interests of the
relationship between the United Kingdom and another
country”,
I am getting
sick and tired of worrying about the embarrassment of other countries
and adapting our legal system to accommodate it. I do not want our
legal system to be based on whether it will embarrass a prince of the
royal house of Saud or, in the case of military inquests, our
allies.
I feel
strongly that there should be a clear limitation on the power if we are
to accept it, which should be to
“the interests of
national security”.
That
is already a wide construction and allows Ministers to argue on a wide
front that matters should be included. I see not the slightest reason
for extending it with proposed new paragraphs 8A(1)(b) or (c). Unless I
hear the most cogent arguments from the Minister, I am inclined to urge
the Committee to reject both paragraphs (b) and (c), or just paragraph
(c) if that is the Committee’s
preference.
Mr.
Grieve:
My preference is the exclusion of both paragraphs
(b) and (c), and to that extent I prefer the hon. Gentleman’s
amendment to my second one, but we can reflect on that when we have
heard from the
Minister.
Mr.
Heath:
Indeed, I never prejudge the Minister’s
persuasiveness on such matters, and I shall listen to him carefully,
but my preliminary position is that the Committee should divide on this
because it is an important matter of
principle.
Mr.
Llwyd:
May I add my thanks to the Minister for allowing us
to speak to officials about this matter last week? That was very
helpful.
I remind the
Committee that we are amending the Coroners Act 1988 under which a
coroner conducting an inquest generally has discretion to sit with a
jury, but there are four circumstances in which he or she must summon a
jury. They are when there is reason to suspect
“that the death occurred in
prison...while the decease was in police custody, or resulted from
an injury caused by a police officer in the purported execution of his
duty”
or
“that the death was caused by an
accident, poisoning or disease notice of which is required to be
given...to a government
department”
or
“inspector
appointed under section 19 of the...Health and Safety at Work etc.
Act 1974”
or
“the death occurred in
circumstances the continuance or possible recurrence of which is
prejudicial to the health or safety of...any section of the
public”.
Some
years ago, I sat as a deputy coroner, and one reason why I opted for
sitting with a jury was that in some classes of cases—nothing to
do with terrorism or the main purport of the Bill—I thought it
was in the public interest for the inquest to be open and that a jury
should decide the cause of death. More to the point, I believe that
summoning a jury in such circumstance reinforced public confidence in
the system. We all know the adage that justice must be seen to be done,
and there is seldom a better example of justice being seen to be done
than a jury sitting in public and deciding a major issue such as the
reason for a sudden or inexplicable
death.
The various
categories of the Coroners Act 1988 assure the public that deaths in
such circumstances are not covered up, and that the jury can hear
everything and decide. That is clearly important in maintaining public
confidence, for example, in the conduct of police and prison officers.
I am not denigrating police or prison officers, but if there is a death
in their custody, it is clear that to ensure confidence there is
nothing better than public scrutiny by a
jury.
Another point
that has not been mentioned is that although the provision is contained
in the Counter-Terrorism Bill, my reading suggests that it is not
restricted to cases involving allegations of terrorism, so it could be
extended to any situation involving a death in police custody and so
on.
Mr.
Hogg:
The hon. Gentleman is entirely
right. If he bears in mind that the Defence Secretary, for example,
went to the High Court to try to prevent coroners from expressing a
view on the equipment provided to soldiers
who died in Afghanistan and Iraq, one may suppose that that could be
used to prevent juries from inquiring into the death of servicemen
abroad when there could be criticism of their senior
officers.
Mr.
Llwyd:
I hear what the right hon. and learned Gentleman
says, and I have read views along those lines. I do not think it is
uppermost in the Government’s intentions at the moment, but he
may well be right. What I am concerned about is this: let us say there
is a violent incident in a pub, a couple of police officers are called
and, during the mêl�(c)e, an individual is killed. That is a
situation in which, now, the coroner would sit without a jury. I would
find that extremely undermining of confidence in the
police.
5.30
pm
I speak as the
son of a police officer, the brother of a police officer and the cousin
of a police officer—we are a boring family, but there we go. I
have a high regard for police officers. I prosecute, defend and do
whatever is necessary, but I am not one of those who lines up to knock
the police all the time. That has never been my way of thinking, and I
believe that this could be extremely damaging to the police. If the
provision is used routinely in the circumstances to which I have
alluded, it will undermine confidence in the police to a huge degree,
and that is the last thing that I—or, I am sure, any other
member of the Committee—would want to see
happen.
Let us look at
the way in which the clause will work. The Secretary of State will
decide, for whatever reason—hopefully not for political reasons,
though it is not impossible that that may happen in the
future—whether an inquest is to be held without a
jury.
Mr.
Heath:
Has the hon. Gentleman noted that in this clause,
unlike in previous clauses, it is the Secretary of State—the
interchangeable Secretary of State who may be the Home Secretary or
another departmental Secretary of State—and not the Lord
Chancellor who is specified? Would he have any greater confidence if,
at the very least, the words “Secretary of State” were
replaced with “Lord Chancellor” so that we had somebody
who had a responsibility to perform his duties in the interests of
justice, rather than in the interests of the Government of the
day?
Mr.
Llwyd:
Yes, I think I would feel
slightly more confident, but I would not feel cock-a-hoop about that
either. I suppose I would feel marginally more comfortable. As it
stands in the Bill, the decision is taken by the Secretary of State,
whomsoever he or she might be, and it seems that the only potential
challenge to that decision to hold an inquest without a jury would be
our old friend judicial review in the High Court.
The purpose of
a judicial review would be to challenge the legality of a decision not
to allow a jury. Given that the grounds for the Secretary of
State’s decision could be under the broad and non-specific
public interest limb or, indeed, the national security limb, a decision
might be very difficult to challenge in practice. The Bill is silent on
whether interested parties, such as family or legal representatives,
are also excluded.
The basis for deciding that a
jury should be excluded is:
“the inquest will involve the
consideration of material that should not be made
public”.
Therefore, by
implication, anyone who is not security cleared is likely to be
excluded from proceedings in the same way that they would be from, for
example, closed sessions in control order proceedings. Perhaps the
Minister will correct me on that if I am wrong.
There are real concerns about
this part of the Bill. There are questions about the compatibility of
the proposals with the UK’s legal obligations. The European
Court of Human Rights, in the case of Jordan v. UK, concluded
that there were five essential requirements of the investigatory
obligation arising from deaths that occur due to state action or while
someone is in the care of a state body: independence; effectiveness;
promptness and reasonable expedition; public scrutiny; and
accessibility to the family of the deceased. That position has been
upheld and confirmed as a minimum standard in domestic cases by the
Appellate Committee of the House of Lords, but this exclusion could
contravene that.
A
more general concern is—I say this quite openly and without
malice or anger—that this provision would seem to be tailor made
for another Jean Charles de Menezes situation. In such circumstances,
no jury would be involved. For the past few minutes, I have been trying
to make the case that that will undermine public confidence, which will
put us at a gross disadvantage. We always talk about legal niceties,
but the bottom line must always be to ensure that justice is seen to be
done. I am afraid, however, that the provisions in clause 64 will drive
a coach and horses through that very important principle.
If the Minister said,
“Well, it will only occur when there are very delicate and
important national security considerations”, I might be quite
prepared to listen and accept that. However, we must bear in mind
paragraphs (b) and (c) of new section 8A(1), which I, like the hon. and
learned Member for Beaconsfield, would prefer to vote on. Nobody would
disagree on the point about national security, but public interest? Who
decides the public interest? It must always be the Secretary of State,
but, with great respect, Secretaries of State sometimes think mainly in
political terms. The measure simply cannot be right. I support the
amendment and hope that the Minister will give us some
assurances.
Mr.
McNulty:
The hon. and learned Member for
Beaconsfield knows that juries do not sit on Ministry of Defence cases.
Coroners in such cases have been extremely robust in their findings, so
I do not know how his point was evidence for opposing the
Government’s intentions—the clause has nothing to do with
such cases. The MOD was challenged on one particular aspect of law and
the coroner’s criticism in one particular case. This is not the
blanket, cover-all approach that he suggested.
The hon.
Member for Meirionnydd Nant Conwy quite fairly invoked Jordan and our
ECHR responsibilities, which is precisely what the clause is
about—hopefully, hon. Members will have been aware of that from
the seminar. It is not just about terrorism. The criteria are drawn
broadly to catch not everything, but those cases that should be caught.
I do not want to go into the
specific case that has, in part, prompted the provision, but it would
not be covered by paragraphs (a) or (b). It sits very squarely in
paragraph (c) for perfectly reasonable
reasons. The public interest simply
cannot be defined as whatever the Government or Secretary of State of
the day fancy. There are plenty of tests for determining the public
interest, and that relates to article 2 of the ECHR, Jordan and all the
other aspects. As hon. Members know, it relates purely to the finder of
fact provisions for the coroner and to giving families the closure and
clarity that they require, which, for a small number of cases, we
cannot give them.
There
is no alternative to the provision in the Bill, although I have not
read new clause 13, which might be proffered as an alternative.
However, a small number of cases are in limbo, with all the incumbent
stress and everything else entailed for the families concerned. That
was what prompted this provision, not nonsense about Guantanamo Bay,
extraordinary rendition and the other rubbish spoken about by the
representative of the libertarian right at the back of the room. This
is very germane to a small number of cases. It will afford coroners the
ability to do their job under article 2 of ECHR and afford some respite
to families whose cases are held in
limbo.
Mr.
Llwyd:
The Minister is obviously engaging deeply with this
subject, as I would expect. He said, for example, that families should
have closure. My experience as an advocate in inquests, and also from
sitting as a deputy coroner, is that families very often leave an
inquest feeling aggrieved because they did not get the right verdict. I
suggest to the Minister that they would probably be less likely to be
aggrieved if a jury decided rather than a single person.
Moving on to a
slightly different point, if the Minister is saying that this will
apply to only a small number of cases, he does not gainsay the fact
that this could be opened up and used as often as was liked. It could
be used every time someone dies in police custody or every time someone
dies with any peripheral involvement of the police. My point is that
that could happen, and I hope that he will tell me that I am
wrong.
Mr.
McNulty:
I would contend that that is not the case at all.
On closure, I do not doubt that many families leave a coroner’s
feeling aggrieved, but, as we have agreed, 98 per cent. of the time
there is no jury at all. We are not talking about absolutely closed
proceedings from start to finish, in which all the family get for their
pain and stress is a result at the end. We are simply talking about
affording the coroner a system in which he or she can deliberate on
sensitive material to go towards finding the facts of why the death
occurred—the whys and wherefores—before going on to the
other dimension.
I do not pray
the 98 per cent. in aid either, because Members are entirely right that
the cases in the 2 per cent. are, by definition, very high profile, not
least in terms of the list that the hon. Member for Meirionnydd Nant
Conwy read out about the police and other elements. They certainly
almost invariably involve state agencies. What we have at the moment,
without this sort of provision, in a small number of cases—and
that is likely to continue—is stasis, or a state of suspended
animation
in which two things could happen. The coroner could sit with a jury and
a whole host of pertinent but sensitive information that, for whatever
reason under paragraphs (a), (b) or (c)—and in the one case we
are thinking of, it is paragraph (c) rather than (a) or
(b)—would be withheld, so it would come to some sort of
unsatisfactory conclusion and, probably, the finder of facts could not
find the facts around the death in the first place. Alternatively, we
could come up with some kind of compromise that through which we
determine—given article 2, given Jordan and given that people
have a right to a full explanation—whether there is a way in
which deliberations can take place with a sense of the material being
deliberated upon, and with as much of the proceedings being in public
as possible, albeit without a jury, so that we can get the narrative,
the story and the closure that people require. Why not public interest
immunity? Because PII is about withholding material. It is not about
going into a closed session to deliberate further on material and then
going back into an open session. We require all three limbs.
Is this a satisfactory vehicle
to deal with this? No, I would cheerfully leave it to the Ministry of
Justice to deal with in the room along the corridor in its coroners
reform Bill. However, I think, as people understand from the seminar,
that there is at least one pressing case and there might be others. The
sooner this is on the statute book as a resolution to this real
difficulty—it is not going to go away—the
better.
This is not
about unnecessarily robust and completely misguided notions. This is
about facing a very serious practical difficult and trying to overcome
it in the best interest for a small number of cases, certainly in the
spirit of Jordan and people being afforded their article 2 rights under
the European convention on human rights. I am afraid that the
amendments, and certainly amendments Nos. 134, 32 and 185, diminish
that. I do not know, and neither does the Committee, what the
circumstances will be around the one or two cases that require this
sort of certification to get the job done. That is why the provision is
necessarily drawn as broadly as possible. I understand the suspicions
about a power that is drawn so broadly that, as Ernie Bevin said, you
could ride a coach and horses through it. However, that is not the case
in the context of the Coroners Act 1988, which is what people should be
looking at, rather than just taking these words at face value. The
provisions need to be looked at in the context of the rest of section 8
of that
Act.
5.45
pm
I contend that
this measure is about trying to get a public service such as the
coroner service doing its job in full, across the whole range of cases
that come in front of it, including those that, by necessity, are very
difficult. To get to the end game that everybody needs, those cases
require the exploration of sensitive material. Yes, some of it is
sensitive in terms of national security; some of it is sensitive in
terms of the issue about other states; but some of it is sensitive in
terms of that broader public interest. It is in that context that the
power needs to be read, rather than seen as a huge conspiracy that
means that every death created by a state agency or otherwise is
scurried away and examination of it held in
private.
Mr.
Hogg:
I understand what the Minister is saying. However,
does he understand that our concerns really stem from the fact that the
certifying authority is the Secretary of State, who is a politician?
Our concerns would be very much less if the certifying authority was
not a politician and was someone such as the Lord Chief Justice, or if
the Lord Chief Justice had to be party to the certificate. If that was
the case my anxieties would be very much diminished and I would be much
happier to look at the wider language that the Minister is commending.
However, so long as the certifying authority is a politician pure and
simple, the answer is that the power is not acceptable to
me.
Mr.
McNulty:
That is a fair point and worthy of explanation. I
indicated at the evidence session that I would be happy to explore
alternatives. Given the importance, as everybody has suggested, of such
a decision, I would not want—to be deeply respectful to my right
hon. Friend the Home Secretary or indeed any other Secretary of
State—to see a Secretary of State scurrying around the skirts of
a judge. This is an intensely sensitive decision that should be laid
fairly and squarely at the door of the politician from the Executive
who makes that decision in as open and transparent a way as
possible.
As I think
that the hon. Member for Somerton and Frome implied earlier, that is in
part how to ensure that the power is not subject to the false and
rather rusty iron law of politics that, as he suggested, is that all
power put on the statute book is eventually abused. I am happy to look
at that suggestion and take it away, and explore the certificating
process further before Report. This should not be an issue that divides
us; this is a practical and process issue in dealing with a small range
of
cases.
Mr.
Llwyd:
Of course, the experts on the process would be the
judiciary, who always act in a non-political fashion. So, I am
delighted to hear that the Minister will look at this issue again. It
really would improve this measure and also deflate much of what I have
been saying if he were to consider putting the Lord Chief Justice in
that sort of position.
I am not casting aspersions
against any politician. I am just making the point that politicians
tend to think politically at times, especially when they are under
pressure. So one thing that we should make sure of is that the decision
is taken at arm’s length. I do not always say that judges are
right, either; I am not saying that. However, we would have that
particular safeguard, which is a very important one
indeed.
Mr.
McNulty:
Given the list that the hon. Gentleman read out
in terms of police custody, prison, police action and other situations
and given the point that the hon. Member for Somerton and Frome made
about many of the areas that we are discussing involving the forces of
the state in some way or other, my starting point is to leave the
certification with the political masters. However, I take the point
about getting a deal of other cover in the judiciary. Although I am not
deeply enamoured by it, I will certainly take the suggestion away and
have a look at it. However I do not think it helps to overcome the
practicalities that we face with this system in a very few cases and
the issue
that everyone recognises of sensitive material that is not always in the
national interest, which is why I prefer the three limbs. The
amendments would take away one and then two of the limbs and that would
not take us a whole lot further in tackling the practical problem that
we face in affording people their article 2 rights and in the context
of Jordan, which is why I am happy to say we will resist the
amendments.
Mr.
Heath:
This has been an interesting debate. The Minister
asks us to not see it in the context of the Bill and of the other
provisions, but we cannot avoid doing that. What we have here is a
proposal and the proposal is that a Minister of the Crown can decide,
because of facts that he or she knows and the rest of us do not, that
the circumstances of a death will not be put before a jury in the first
instance and, secondly, that it will be put before a selected
coroner—not one of the normal coroners, but a coroner appointed
by the Secretary of State for that purpose to investigate what is, by
definition, a death involving agents of the state. It is not surprising
that people are concerned about that, notwithstanding what I believe to
be the good intentions of the Minister. It is not surprising that
people are concerned about that in the context of a counter-terrorism
Bill and not a coroners Bill that seeks to reform the process of
coroners’
courts.
I accept that
there may be circumstances in the context of the policing of terrorist
activities where a person may lose his life and the circumstances are
not available to be released to the public gaze because of intelligence
matters, ongoing investigations or a myriad of factors that do directly
impinge on national security. I am not dog in the manger about this; I
am very happy to engage with the Minister to see if we can find a
better way through, as he quite appropriately said at the beginning of
our deliberations. He will see that I tried to put down amendments to
try to improve this part of the Bill in ways that would reduce some of
the anxieties about the Bill and certainly the later clauses dealing
with the appointment of a coroner. However I am still unconvinced that
this is an appropriate vehicle, particularly in the context of the
interlocking of the clauses, to extend this matter beyond national
security.
This
is the Counter-Terrorism Bill; it is about national security, and we
are asked to entrust to a Minister of State the decision not to allow
matters, which would normally be put before a jury in an inquest, to go
before a jury or a normal coroner on the basis not of national
security, but of an undefined public interest or the relationship
between the United Kingdom and another country. That is inherently a
political judgment. We are now not talking about the interests of
national security; we are talking about an intrinsically political
judgment—how are we going to square this with the Foreign
Secretary of X state, who is hopping mad because we might be doing
something that will concern their interests. How are we going to tell
the Foreign and Commonwealth Office how to respond in the embassy in
wherever it is when it has local officials breathing down its neck,
saying, “This is the last time we co-operate with you, chummy,
because you are allowing this inquest to go ahead and it is going to
greatly embarrass us when it hits the national headlines.”? The
Secretary of State is required to make a political judgment about that
and then to change our legal process in respect of coroners
courts to accommodate it. That is the difficulty that I have with the
clause. I hope that we can find an accommodation on this part of the
Bill and a way of moving forward, but we cannot do so on the basis of
what is currently in the Bill. If the opportunity arises, I shall press
amendment No.
32.
Mr.
Grieve:
Perhaps I should perhaps
apologise to the Committee, and certainly to the hon. Gentleman, who
made the criticism that I was rather tentative in describing these as
probing amendments that were tabled to try to get some clarification of
what the Government were trying to do. I accept that there was a
certain tentativeness, partly because—I say this openly—I
find this part of the Bill one of the most
problematical.
Part
of the problem is that we have come upon the matter almost
unexpectedly. We have Mr. Rebello’s letter of
clarification, but there was no prior consultation about the measure,
let alone its link with a new coroners Bill. The Minister freely
admitted that when he gave evidence to the Committee. It comes in a
counter-terrorism Bill, but, as the Minister has admitted, its scope is
much wider. It goes to the heart of whether there should be major
reform of the coroners’ process.
We know, and
the hon. Member for Meirionnydd Nant Conwy helpfully set out this based
on his experience, the criteria that coroners use. I have experience of
appearing in coroners’ courts. In particular, he highlighted the
circumstances in which it is provided expressly that a coroner should
empanel a jury. Without doubt, the reasoning behind that provision in
the 1988 Act was to maintain public confidence in the transparency and
independence of the process.
Unlike any
other process in this country, the coroners’ process is
inquisitorial, not adversarial. It is a form of inquiry, and that was
precisely why, when the helpful briefing began to explain the
Government’s intentions to me more fully, I began to see that
there was some force in the Government’s arguments. They were
certainly able to deflect me from the view that I had taken on Second
Reading, when I was simply astonished that the measure had been
introduced and worried about its implications for public confidence and
the independence of the coroners system. The Government provided me
with a degree of reassurance, and I began to see that the appointment
of coroners was not a sleight of hand by which they would get their
placemen to sit on coroners’ inquests.
I could also
see, perhaps even before I received the briefing, that problems would
be raised by the Government’s having at their disposal in an
inquisitorial proceeding information that was likely to be highly
relevant to a decision about why somebody died at the hands of the
state, but could not be used under the Regulation of Investigatory
Powers Act 2000. Moreover, although there has been talk of having
specially vetted juries, such information could be brought before a
jury only with great difficulty. As Mr. Rebello made clear
in his evidence, it could be brought before a suitably cleared
coroner.
The
Government clearly have a problem, and they are entitled to introduce
legislation to try to solve it. My difficulty is that the more I look
at the detail of what they have drafted, the more worried I am about
the unintended consequences of it. It seems to have been drafted in
some haste. I remain anxious, and unresolved
in my own mind, about what safeguards there should be to ensure that any
change to the system maintains public confidence and ensures the
outcomes that we want to
see. I freely accept
that these are probing amendments. I can see, for example, that the
Minister has an argument when he says, “The interests should not
just be national security; they should go wider,” because we
want to cover cases that involve putting intelligence material before
coroners, but they are not national security cases. One can see also,
for example, that the cases may include police intelligence that may be
relevant. Those changes may be quite progressive, but on the other
hand, when one sees introduced as a separate category the
words
“in the interests
of the relationship between the United Kingdom and another
country”
that
may go beyond the interests of national security or the public
interest, it becomes difficult to fathom what we are dealing
with—except embarrassment. All that highlights why there should
have been proper pre-legislative scrutiny and an opportunity for the
provision—in an ideal world—to be part of the coroners
Act. Indeed, I am by no means convinced that the proper place for it is
not in a future coroners Act, even though there may be a problem with
an existing case. It may even be worth delaying an inquest for another
12 months, or however long it is, for the sake of having it in a
coroners Act. I remain unhappy about the structure of the
clauses.
6
pm
May I take
another example, Mr. O’Hara? I hope that you will
forgive me if I widen the scope, but as we are having a more general
debate about the issues, it would be quite beneficial. I mentioned that
I had tabled new clause 13. Quite apart from the fact that we cannot
consider it this afternoon, because I was able to start formulating it
only after I had heard the briefing at the Home Office, and was
therefore unable to table it until yesterday, I remain rather
unsatisfied with it. My difficulty with the new clause is that it
should not be the Secretary of State who provides a certificate of
authorisation; there should be an application to the
court—probably involving the Lord Chief Justice.
I am the first to accept that
the new clause is far from perfect, but that again highlights the
difficulties that we will have in trying to make this aspect of the
Bill acceptable. Our one opportunity may be on Report, which, to return
to my apology at the start of these remarks, is one reason that I have
tended to treat most of the amendments that I have tabled as probing
amendments. They would not leave the Bill in an acceptable form, even
if the Minister accepted them.
Nevertheless, the Opposition
must take some decisions. Unless I am satisfied with some elements of
the Bill, I am likely to vote against them, so I put the Minister on
notice that I shall probably vote against clause stand part in each and
every case. The question arises as to whether the Bill can be improved
in order to demonstrate the Committee’s concern prior to our
doing so.
On the basis
of what the Government are trying to achieve, granted my reservations
about everything else, I still do not understand how new section
8A(1)(b),
“in the
interests of the relationship between the United Kingdom and another
country,”
can feature. As the only way of registering
that point would be to support amendment No. 32, tabled by the hon.
Member for Somerton and Frome, I am minded to do so, if only to
indicate to the Minister—no more than that—where I am
unhappy with the Bill. The Minister has an argument that it would be
better to delete new paragraph (b) while leaving in new paragraph (c),
but that illustrates absolutely the areas of difficulty that we
have.
I hope that my
identifying where the problems are has been helpful to the Minister. In
summary, I see them in two forms. First, I am anxious about getting rid
of a jury, and that the convenience of being able to allow in such
material might in the medium term fatally undermine the use of juries
in cases where the police shoot people, as in the example given by my
right hon. and learned Friend the Member for Sleaford and North
Hykeham. In such circumstances, we might end up with very few inquests
with juries, because we have not thought through the implications of
the provision at all. The way in which it was introduced was to say,
“This is about intercept evidence in the case of
terrorists,” but we now know that it is not. Secondly, I worry
very much that the issuing of a certificate by the Secretary of State
without a proper mechanism for judicial scrutiny or authorisation is
also fatally flawed. That is what I was trying to deal with in new
clause 13.
With your
permission, Mr. O’Hara, what I propose to do,
imperfect as it is, is not to press the lead amendment no. 134, though
I hope that we might have an opportunity to vote on amendment no. 32.
Furthermore, although we shall carry on with our probing amendments, I
put the Minister on notice that unless I am satisfied that we are
putting together a package that is acceptable, it is my duty as an
Opposition spokesman to vote against the various clauses making up this
part of the Bill, until such time as we have it in an acceptable form.
That will be a challenge for the Minister, but I want to make it clear
that if he can come up with such a package for Report, I for one will
be quite happy to support
it.
I beg to ask leave
to withdraw amendment no.
134.
Amendment, by leave,
withdrawn.
Amendment proposed: No.
32, in clause 64, page 45, line 7, leave out paragraphs (b) and
(c).—[Mr.
Heath.]
Question
put,
That the amendment be
made:
—
The
Committee divided: Ayes 6, Noes
10.
Division
No.
8
]
Question
accordingly negatived.
Mr.
Grieve:
I beg to move amendment No. 186, page 45, line 14,
leave out subsection (3).
The
Chairman:
With this it will be convenient to discuss
amendment No. 187, page 45, line 20, leave
out subsection
(4).
Mr.
Grieve:
This continues our scrutiny of
this section of clause 64. Once the certificate has been issued in
relation to an inquest, the inquest must be held or, as the case may
be, continued without a jury, so that if a jury has not been summoned,
the coroner must not summon a jury. If a jury has been summoned, the
coroner must discharge the jury. Subsection (4) says:
“Accordingly, the
following do not apply in relation to the inquest whilst the
certificate has effect”,
and then effectively says that all the
existing coroners rules can be overturned and ignored, including the
requirement to have a jury in the circumstances that were so neatly
encapsulated by the comments of the hon. Member for Meirionnydd Nant
Conwy.
Is that what we
really want to do? First, I was slightly puzzled on a matter of
information as to the need for these certificates to be issued even
when the coroner had already summoned the jury. I would have assumed
that its only application could be to the case which is currently
pending and not in future. I wonder whether that is necessary. Even if
the Government wanted to do what the provision seeks to achieve, why
would the certificate not be issued prior to the summoning of the
jury?
Secondly, to
return to what we were debating a moment ago, have we thought through
the impact of getting rid of juries in such cases? Perhaps we could
focus for a moment on that. We have juries in coroners’ inquests
for good reasons: primarily, as I said, to command public confidence
that the system is independent and transparent and that it is possible
for verdicts to be returned that might be inconvenient to the state.
That is particularly the case, although not necessarily exclusively,
where, as here, we are dealing with people whose lives are likely to
have been taken by state action. We have not had an opportunity to
debate the issue through.
I have no
doubt that lots of inquests have taken place in the past 30 years in
which intelligence information that might have been of interest to a
jury was not made available. Of course, how coroner’s inquests
work is sometimes criticised, but it has not been suggested before that
that is a reason to get rid of juries in those circumstances. We have
not considered whether specially vetted juries could be used. We do vet
juries; it has been done, perfectly successfully, in national security
cases. I expect that, because it is an inquisitorial process, the
information laid before a coroner’s inquest is likely to be
fairly circumscribed, rather than, “This is a download of all
the intelligence material that we have had about this case over the
last six months.” In those circumstances, it might be possible
to have a jury if we were prepared to vet one specially, but again, we
have not debated that issue at all. As we consider the matter in
Committee, I hope that the Minister will respond on that.
I hope that the Minister can
also amplify his later remarks in justifying the need for the
provisions. To return to why I think that they appear in the Bill,
history shows that when trying to legislate over a single problem that
has arisen in a controversial and complex area, it is terribly easy to
get it wrong.
Mr.
McNulty:
I utterly agree, but that is not what we are
doing. The provisions might have been prompted by one or another case
currently stuck in the system, but they have been designed and written
as regular law, not just a law to respond to those specific
circumstances. However, I understand the difficulty of how the
provisions relate to the much-vaunted and heralded reform of the
coroners system. That is a completely fair point.
I resist the amendments, because
they negate the whole purpose of the clause, which is to allow a jury
either to be discharged or not to sit in the first place, but I am
conscious that it might be more satisfactory if, between now and
Report, we could at least explore some way in which the provision
relates to the substantive matter of all the wider reforms in the
coroners reform Bill. Aside from the matters before us now, I am
perfectly prepared to take that away and consider it in terms of
clauses 64 to 67. The fellow from the Coroners’ Society was
honest. He said, “Well, yes, someone did mention it back in
January,” but I apologised for the fact that there had not been
as much concentration as there should have, notwithstanding
Mr. Rebello’s comments.
Let us be clear. I repeat that
this is not about going counter to the ECHR; it is the
reverse.
Mr.
Grieve:
I appreciate
that.
Mr.
McNulty:
The hon. and learned Gentleman
might, but not everyone in the room does. It is worth repeating. The
clause deals with a practicality that is before us now in respect of
one case, although it certainly only arises in a few cases a year. The
clause says that there are ways in which we need to dispatch and deal
with cases that sometimes require a coroner to sit without a jury, not
least because he is considering sensitive material. I cannot accept an
amendment that would mean keeping the clause but not including the
provision that there may not be a jury or that a jury should be
discharged.
I
assume, and unless I am corrected I will stand by this, that the twin
points are included because in some circumstances, as the odd case
develops, sensitive materials that might aid the fact finding may come
to light that were not apparent in the first instance. The provision is
intended for that reason, rather than any
other.
I am loth to
call these amendments wrecking amendments, although they are certainly
negating amendments, and they are certainly in order, otherwise they
would not be on our order paper. Nevertheless, I urge the Committee to
resist
them.
Mr.
Grieve:
I shall avoid taking up the
Committee’s time on votes on individual probing amendments. I
have to accept that completely redrafting the clause is beyond me,
although I may attempt to do it before Report. However, my gut feeling
is that that is required. If we were able to redraft the clause, we
might even be able to point out to the Government that we are trying to
achieve most of what they intend—albeit in a form that I find
much more comfortable and acceptable in my anxiety about maintaining
transparency and confidence in the system—and trying to ensure
that the process has proper judicial oversight, which is lacking at the
moment.
I will not press the amendment to
a vote; I am simply using it to tease out this important debate.
Considering the Bill clause by clause and subsection by subsection
helps me understand the issues that arise. First, we need a system in
which judicial oversight is seen to be operating and in which the
mechanism is not triggered by the Secretary of State’s
certificate. Secondly, we need some confidence that the necessity of
getting rid of a jury has been thought through. Thirdly, we need to
maintain public confidence that, under the system for appointing
coroners—the Minister might be following the Home
Office’s briefing and might be better able to satisfy me of the
bona fides of the Government on this matter—the coroners are
independent and that existing coroners, preferably, will be doing the
exceptional work that is
required.
Subject to
those comments, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Mr.
Grieve:
I beg to move amendment No. 188, in
page 45, line 30, leave out paragraph
(b).
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 189, in
page 45, line 43, leave out subsection
(3).
No. 191, in
clause 65, page 46, line 14, leave
out paragraph (b).
No.
193, in
clause 65, page 46, line 39, leave
out from ‘must’ to ‘and’ in line 40 and
insert
‘consider all
evidence presented to the inquest prior to the appointment of the
specially appointed
coroner’.
Mr.
Grieve:
Amendment No. 188 is much the same as an earlier
amendment.
Amendment
No. 189 would leave out subsection (3), which
says:
“This
section has effect in relation to inquests that have begun, but have
not been concluded, before the day on which it comes into force as well
as to inquests beginning on or after that
day.”
I assume that that
is to cover the particular case that we were told about and for no
other purpose, but I want the Minister to clarify
that.
Amendment No. 191
would leave out paragraph (b) of new section 18A(3) in clause 65, which
comes after the
words,
“A
specially appointed coroner may be appointed under this
section”
and
says:
“in relation to an
inquest that has begun, at any time before its
conclusion.”
Presumably,
that provides for the removal of the existing coroner as and when the
information comes to light during an inquest. I would be grateful for
clarification on that
point.
Finally,
amendment No. 193 would mean that the coroner would have to
“consider all evidence presented to
the inquest prior to the appointment of the specially appointed
coroner”.
The Bill
states:
“If the
inquest has begun...the specially appointed coroner must proceed
in all respects as if the inquest had not previously
begun”.
Effectively, the Minister
is saying that the original inquest will be quashed and abandoned and
that a completely fresh process will begin. Otherwise, I would expect
that the coroner would be able to take account of what had been said
earlier. For example, what if a critical witness who has given evidence
at the earlier coroner’s inquest is for whatever reason not
available—they might be dead or unwell—to give evidence
at the second inquest? Can his evidence in those circumstances be used
and, if so, in what
form?
Mr.
McNulty:
I can give the hon. and learned
Gentleman the assurances that he seeks, but let me take away and
explore the notion further. It is entirely right if it is discovered
part way through a hearing that a special coroner rather than a coroner
is necessary that the proceedings should be treated as if from the
beginning. That is perfectly reasonable for the coherence of the
clause. However, I accept the point on how to utilise evidence given by
a significant witness who has appeared earlier but who, for whatever
reason, is incapacitated—death, I suppose, is the most excessive
example. That was an entirely fair point, and I shall take it away and
explore it.
However,
broadly, for now, within the context of accepting the import of clauses
64 and 67 and the system that I am proposing, there is a logic to the
notion that if sensitive material in the case requires a special
coroner that means that the case cannot proceed, the special coroner
should treat the process and the hearing as though he is starting from
the beginning.
The hon.
and learned Gentleman was right to say that proposed new subsection (3)
deals with the fact that there may well be extant cases that need
immediate attention as and when the measures come into force. I can say
no more on that.
The
amendments are useful for exploring the matter, but I can, in all
instances, give him the assurances that he seeks, and ask that he does
not press to a Division.
Mr.
Grieve:
Again, the amendments are
probing and I do not intend to press them to a Division. I am grateful
for the Minister’s comments, particularly on amendment No. 193,
which concerns what would happen to evidence that was given to an
abandoned
inquest.
Mr.
Llwyd:
There is one way to deal with that. What would
usually happen? The earlier statement would be served under the Civil
Evidence Act 1995, and could then be admitted as
evidence.
Mr.
Grieve:
I take the hon. Gentleman’s point: indeed,
that is what one would usually expect to happen. The oddity is that the
wording of the measure makes one think that it might be prayed in aid
to prevent that. However, that classically illustrates the sort of
problems that I have when I read the Bill. I am in relative ignorance
as to what the Bill may
do.
Mr.
Hogg:
Will my hon. and learned Friend remind me—I
do not remember because it is a long time since I appeared in
coroner’s court—whether a transcript of evidence is given
in front of the coroner? If not, it would be quite difficult to use
previously given evidence in a freshly convened
inquest.
Mr.
Grieve:
That is a very interesting question. I do not
think that there is any reason why it should not be transcribed, but in
my experience, many coroners’ inquests are not transcribed. I
can see the hon. Member for Meirionnydd Nant Conwy nodding from a
sedentary position. I do not remember any transcript being available at
the last inquest that I did. We were completely dependent on the
notebooks of the counsel and coroner to tell us what was said. In the
inquest into the death of the Princess of Wales, I rather suspect that
there was a transcript available. In fact, I would be very surprised if
there were
not.
Mr.
Llwyd:
The answer to his question is that some
coroners routinely tape evidence, so transcripts are available on
request. Equally, half of coroners rely on the old-fashioned system of
notes being
taken.
Mr.
Grieve:
That highlights the unusual
nature of coroners’ proceedings. As the Minister will
know—or perhaps he will not know because the new coroners Act
will not fall within his remit—coroners’ inquests are
very dependent in their conduct on the character of the coroner. There
is a considerable degree of informality. Limited financial resources
are available to support coroners in their work. Often, preliminary
meetings take place at the coroners’ offices. If the coroner is
also a solicitor, they will be held at the local solicitor’s
office in which he happens to be practising. Sometimes there is not
even a purpose-built building in which the inquest can take place, so
somewhere has to be found. Yet, coroners’ inquests do very
important work. Improving that work is something that the new coroners
Act is designed to try to achieve. We have to ensure that whatever we
do here, we do not put a spanner in the works. I beg leave to withdraw
the
amendment.
Amendment,
by leave,
withdrawn.
Question
proposed, That the clause stand part of the
Bill.
Mr.
Grieve:
I hope that the Minister will not take this in bad
part, but, for the reasons that I gave earlier, I have to urge Members
of the Committee not to support something that is in a form with which
they are not comfortable. I am not saying that I am opposed in
principle to what the Government are trying to do, because I am not. I
can understand that there is an important issue with which the
Government are trying to wrestle. That was made quite clear when we had
the briefing at the Home Office. At the same time, is clause 64 in a
form with which I am content? The answer must be that it is not. At the
end of the day, the urgency of the issue is not such that even with a
suspended inquest lurking, if the Government were told that they could
not proceed unless they got their act in order before Report, it would
be the wrong thing to do. For those reasons I oppose clause
64.
Mr.
Hogg:
I entirely agree. I am less
generous than my hon. and learned Friend. It is not just that I am not
comfortable with the clause; I disapprove of it. We are giving to the
Executive a power that we should not give. If we are going to give it,
it needs to be much more restricted than what we are proposing in the
Bill. The power to order an inquest without a jury is drawn far too
wide. It is within the exclusive control of a politician, and I am not
prepared to accept that politicians in this
context always act in good faith. My own belief is that on occasion,
they act in bad faith and we have to guard against that latter
situation. I personally will vote against this whatever my hon. and
learned Friend does.
Question proposed, That
the clause stand part of the
Bill.
The Committee
divided: Ayes 10, Noes
6.
Division
No.
9
]
Question
accordingly agreed to.
Clause 64 ordered to stand
part of the
Bill.
| 
