Appendix: Government response
Following the publication of your committee's report
on the Counter Terrorism Bill on 20 March, I am writing to you,
as Minister responsible for coroner policy, to address the issues
the report highlighted about our proposals to ensure that coroners
have all the necessary information relevant to an investigation
into a death.
You and the other members of the Justice Committee
were disappointed that there was no opportunity for consultation
or for the Committee to scrutinise these proposals as the clauses
were added to the Bill at a later stage. We became aware of circumstances
in which a coroners' inquest may need to consider material that
cannot be disclosed publicly or shown to a jury, as the finders
of fact, without harming the public interest (for example, for
reasons of national security). This creates the potential for
coroners' inquests to be incompatible with Article 2 of the European
Convention of Human Rights (ECHR) where the sensitive material
is central to the inquest. I am sorry that more time was not
available to consult more widely.
I understand that you are concerned as to whether
the provisions in the Bill ensure that coroners' investigations
will comply with Article 2 of the ECHR which requires the State
to conduct an investigation into the broad circumstances of the
death when actions of state representatives may have caused or
contributed to the death. What we propose will ensure that coroners'
inquests will always be fully compliant with Article 2 of the
ECHR because the independent finder of fact will be able to see
all relevant material even if it cannot be made public or disclosed
to a jury. The current law prevents coroners from seeing and
using very sensitive material which may have relevance, either
directly or more generally, as to how someone met their death.
This is the sort of material which, if it was known about publicly,
could damage national security and endanger lives either in the
present or the future.
I know that you are concerned that under our proposals
Ministers will be involved in the appointment process for coroners
dealing with these types of cases. Once the Secretary of State
has certified an inquest, a specially appointed coroner will be
appointed to hold the inquest. Coroners holding certified inquests,
as independent judicial officer-holders, will have obtained developed
vetting on a voluntary basis. This will not in any sense compromise
their independence. Requiring them to be security vetted, on
a voluntary basis, will simply provide us with the reassurance
that any responsible government would seek before allowing material
that is potentially very sensitive to be disclosed to them. I
want to assure you that the Government has no intention of interfering
with the judicial independence of coroners. Similarly we do not
intend to assemble a cadre of compliant coroners who are briefed
to handle their inquests in a way designed to cover up acts or
omissions of state agents that should be rightfully subject to
public scrutiny.
One of the purposes of Clause 65 was simply to have
a mechanism in place that would enable one of this small group
of security cleared coroner volunteers to be matched to the certified
inquest. This would always be on the basis of practical factors
such as availability and geographical location. Given the Justice
Secretary's oversight of the coronial system, it was considered
he was best placed to carry out this function. His officials
are familiar with the coroner system and already provide regular
and routine policy advice to those who work within it. However,
as Tony McNulty indicated at Committee on 13 May, we accept that
the policy would benefit from further consideration. We are considering
a range of options, including whether there may be a role for
the Lord Chief Justice in the appointments process.
You also question the exclusion of a jury from an
inquest involving non-disclosable material under our proposals
in the Bill. The solution we have proposed would replace the
jury with a coroner as the finder of fact, as already happens
in 98% of coroners' inquests. The specially appointed coroners
would be security cleared to the appropriate level in anticipation
of these types of cases arising. Since they are independent judicial
officers, we believe that it is right for them to have access
to, and be able to reach conclusions based on, all relevant material.
The proposals will affect a very limited number of cases in exceptional
circumstances.
You question the apparent inconsistency in the rules
permitting the use of intercept evidence in inquests (as we propose
in the Counter Terrorism Bill) and criminal trials. The Chilcot
report has been published and there is ongoing work to see how
we can satisfy the "tests" set out in the report that
would allow intercept to be used as evidence without jeopardising
national security. But the review itself recognises that, different
considerations would apply in civil cases such as coroners inquests,
compared with criminal cases, since there is no discretion not
to proceed. An initial inquest is started and then formally adjourned
until a decision has been made on criminal proceedings—therefore
criminal proceedings have primacy—whatever procedure is
set out for criminal proceedings would apply before the inquest
is resumed.
It may be that by the time the inquest is resumed,
that all the relevant material is in the public domain—in
which case the test for certification is unlikely to be satisfied.
However, there will be cases where there are no criminal proceedings
(which may well be because an investigation has been conducted
and decision has been made not to prosecute because there is sensitive
material that cannot be disclosed to the defendant as would be
required in criminal proceedings by Article 6). If the death
occurred in circumstances where Article 2 requires an inquest
to be held and the sensitive material is relevant to how the individual
met their death, there is the insurmountable difficulty that the
investigation into the death must proceed but such material cannot
be disclosed in open court without damaging an important public
interest such as national security. In such cases, the inquest
cannot safely be held by a coroner sitting with a jury.
Your report highlights concern that these provisions
create special rules which are independent of the planned reform
of the coroners' service. As I explained earlier, we became aware
of circumstances in which a coroners' inquest may need to consider
material that cannot be disclosed publicly or shown to the jury,
as the finders of fact, without harming the public interest.
As there was no space for the Coroners Bill in the current Parliamentary
session, the Counter Terrorism Bill was the best vehicle to bring
these changes forward at the earliest opportunity. The Government
remains committed to reform and a Bill will be brought before
Parliament as soon as time allows. A Coroners and Death Certification
Bill was included in the Draft Legislative Programme for the next
session published for consultation on 14 May.
You are concerned that the families of the deceased
should have the opportunity to be involved in the coroner's investigation
into a death. Any inquest certified under these proposals would
continue to be held in public as far as possible. Only those parts
involving material which cannot be disclosed publicly without
harming the public interest would be held in private. Under our
proposal, the interests of the families will be fully safeguarded
by independent Counsel. Counsel will be able to see all the material
relevant in an individual case. But neither the families, their
legal representatives of choice (if they have them) nor any other
member of the public will be able to see material that cannot
be disclosed publicly without harming the public interest. We
believe that our proposal provides an adequate safeguard so that
the involvement of the family are balanced against other public
interests as Article 2 requires.
Bridget Prentice MP
Parliamentary Under-Secretary of State
Ministry of Justice
11 June 2008
| 
