Counter-Terrorism Bill

[back to previous text]

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 the interests of national 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 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”
“that the death was caused by an accident, poisoning or disease notice of which is required to be a government department”
“inspector appointed under section 19 of the...Health and Safety at Work etc. Act 1974”
“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 mĂȘlĂ(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.
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 ]
Blunt, Mr. Crispin
Grieve, Mr. Dominic
Heath, Mr. David
Hogg, rh Mr. Douglas
Holloway, Mr. Adam
Llwyd, Mr. Elfyn
Bailey, Mr. Adrian
Brown, Mr. Russell
Campbell, Mr. Alan
Coaker, Mr. Vernon
Gwynne, Andrew
Heppell, Mr. John
Hodgson, Mrs. Sharon
McNulty, rh Mr. Tony
Reed, Mr. Jamie
Taylor, Ms Dari
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 ]
Bailey, Mr. Adrian
Brown, Mr. Russell
Campbell, Mr. Alan
Coaker, Mr. Vernon
Gwynne, Andrew
Heppell, Mr. John
Hodgson, Mrs. Sharon
McNulty, rh Mr. Tony
Reed, Mr. Jamie
Taylor, Ms Dari
Blunt, Mr. Crispin
Grieve, Mr. Dominic
Heath, Mr. David
Hogg, rh Mr. Douglas
Holloway, Mr. Adam
Llwyd, Mr. Elfyn
Question accordingly agreed to.
Clause 64 ordered to stand part of the Bill.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2008
Prepared 14 May 2008