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I have set out the Government’s record in giving considerable support and improvement to the position of witnesses and victims, but there is plainly scope for further improvement. This morning, I made a written ministerial statement announcing the appointment of Sara Payne as victims’ champion—an appointment made
jointly by my right hon. Friends the Home Secretary and the Attorney-General and myself. The victims’ champion is there to represent the views and concerns of victims and witnesses to Government, to the media and to Parliament and to challenge criminal justice agencies further to reform policies and practices in relation to them.
Mr. Dominic Grieve (Beaconsfield) (Con): I am most grateful to the Secretary of State for his kind words of welcome.
Conservative Members welcome the appointment of a victims’ champion, but would the Secretary of State care to comment on the fact that the victims’ champion appears to be a temporary substitute in the absence of a victims’ commissioner? I seem to recollect that a commissioner was first promised as far back as 2003 or 2004, yet we still do not have one. Is not the appointment of the champion an admission that the Government have not got their act together on this matter? [Official Report, 11 February 2009, Vol. 487, c. 16MC.]
Mr. Straw: No, it is not that, but I am pleased that the hon. and learned Gentleman welcomes this appointment. The Criminal Justice Act 2003 made provision for a victims’ commissioner. There was a proper appointment process in 2005, but no suitable candidate was identified for the post, and it was decided that meanwhile the priority should be to build up and strengthen victims’ and witnesses’ services directly. I looked at the provisions in the 2003 Act and decided that they should be amended, and the Bill makes them rather lighter to ensure that less money is spent on what would amount to a bureaucracy for the commissioner. I hope that those changes commend themselves to the House and to the other place. Meanwhile, we judge that the gap should be filled by the appointment of a victims’ champion. As soon as the Bill becomes law, we will take steps to begin the process for a permanent appointment of a victims’ commissioner.
I shall now deal with each of the Bill’s key provisions in turn, starting with coroners. In the past four decades there have been major reforms of both the civil and criminal courts, but the coronial service has so far remained unchanged. We consulted widely on the draft Bill and have listened carefully to the House, and the Bill will bring about the first major reform of the coroner service in more than 100 years. It will significantly improve the service for bereaved families, not least those of service personnel, and strengthen death certification procedures following the Shipman inquiries.
Angus Robertson (Moray) (SNP): On overseas military deaths, the Secretary of State will be aware that there is currently no provision for inquiries in Scots law, but in recent months significant progress has been made in discussions on the matter between UK and Scottish Ministers. Will he confirm that the UK Government’s intention is that they may table provisions during the Bill’s passage to help to update the situation?
Mr. Straw: Yes, I am happy to confirm that to the hon. Gentleman.
Paul Farrelly (Newcastle-under-Lyme) (Lab):
On the deaths of service personnel, I share with many Members concern about the resurrection of private or secret inquests. They hardly seem in keeping with the Obama
zeitgeist. May I give an example of a case in which the Secretary of State might have been prevailed upon to issue a certificate on the grounds of national security? In June 1994, a Chinook crashed on the Mull of Kintyre, killing four air crew and Northern Ireland intelligence experts. The families have been fighting to reverse the RAF board of inquiry’s verdict of pilot error ever since. I knew Mike Tapper, the father of Flight Lieutenant Jonathan Tapper. May I urge the Secretary of State to explain fully the potential impact of private inquests on the possibility of getting to the truth about the deaths of brave servicemen and women in such cases?
Mr. Straw: I am just about to come to the Bill’s provisions on the special certification procedure. I fully understand, as all of us do, the deep concern and anxieties of the bereaved families of that terrible Chinook accident in 1994, but it happened in the territory of Scotland, which is not directly covered by the Bill and where there have long been separate procedures for fatal accident inquiries.
Mr. James Gray (North Wiltshire) (Con): Does the Secretary of State agree that one aspect of military inquests about which bereaved families are deeply concerned is that the state can be represented by barristers, whereas they cannot except in exceptional circumstances and at the agreement of the Secretary of State himself? Does he agree that there should be room in the Bill for a clause allowing, or in fact requiring, families to be properly represented at inquests?
Mr. Straw: I understand the hon. Gentleman’s concern, but the reason why successive Governments have resisted a general provision to make representation or legal aid available in inquests is that they are civil, inquisitorial inquiries. They are not judicial proceedings, and they work very differently even from other civil proceedings. That is why successive Governments have resisted the notion that legal aid should be made available. There are exceptions to that—I have been party to agreeing them—and although I do not give the hon. Gentleman an undertaking that we will accept an amendment on the matter, I certainly undertake that we will consider it.
Jeremy Corbyn (Islington, North) (Lab): The Secretary of State must be well aware of the hurt caused to families when there is an inquest into a death in police custody, for example, and they cannot be represented because they cannot get legal aid. They therefore feel that they have all the powers of the state against them when they are merely trying to achieve truth and justice for their loved ones. Will he think again about the policy of denying legal assistance to people who are going through a terrible crisis in their lives?
Mr. Straw: We are happy to think about it, but as I have said, there are some complexities. We must also consider the overall issue of cost, in the context that the legal aid budget for England and Wales is now the same amount that we spend on prisons, and legal aid per head in England and Wales is higher by a large margin than in any other country in the world, including common-law countries. That is the challenge that we face, but I understand the concern that has been well expressed by Members in all parts of the House.
I turn to the proposals in the Bill relating to coroners. There will be a new chief coroner, who will be a High Court judge and will preside over the reformed service and provide national leadership, and there will be separate independent inspection. For the first time, bereaved families and other interested parties will have access to a dedicated appeals system and will not have to rely on seeking a judicial review of an inquest. There will be far greater scope to transfer investigations from one area to another, taking into consideration the views and needs of bereaved families.
Mr. Grieve: We entirely welcome the list of proposals that the Justice Secretary has just read out. However, he knows that some anxiety has been expressed about the fact that the post of deputy chief coroner will not be available to those working in the coroners system. I am surprised about that, although it is clearly right that the chief coroner should be a High Court judge, and I hope that we can consider the matter carefully during the Bill’s passage.
Mr. Straw: I have thought about the matter a lot during the Bill’s drafting. I fully accept that there is much to be said in favour of what is in the Bill and also of the hon. and learned Gentleman’s comments. I am open to considering amendments on the matter in Committee.
Let me now deal with what is plainly the most controversial issue in the Bill—the proposition that, in certain limited circumstances, inquests should partly be held in private. In some circumstances, it is in the interests of justice to hold such inquests partly in private— for example, to protect highly sensitive information, such as a police source or intercept evidence.
During the debate about previous proposals in the Counter-Terrorism Bill—the substance of the current proposals differs markedly from those—it was suggested that there was no need for special provisions and that we could rely, as the criminal courts do, on the public interest immunity certificate procedure. I want to outline a fundamental difference, which means that that argument cannot apply.
In a criminal prosecution, there are many occasions on which the courts receive applications for public interest immunity certificates. As Home Secretary and as Foreign Secretary, I signed several. In most cases, because they are carefully thought through, the court grants a PII and the sensitive information is thus protected and kept from the jury. However, sometimes the PII is not granted. In that case, it is open to the prosecution to withdraw altogether—that sometimes happens. The prosecution therefore has an option to proceed without the PII or withdraw in the public interest.
That option cannot arise in the case of an inquest. The need for an article 2 inquest arises when somebody has died in specific circumstances, not least, as the Bill spells out, when a person has died in the custody or the detention of the state. If the court was not willing to grant a PII, it would be improper for the state to abandon the inquest. That is why a proposal has been presented to introduce a special procedure to deal with the problem, which has become more significant in recent years because the courts have quite properly insisted that the inquests become article 2 compliant.
In a small number of cases, there has been significant difficulty in ensuring that coroners have access to all relevant information, including highly sensitive material, which cannot be made public. Agencies have used public interest immunity to refuse to disclose such material. To make the best of a difficult—and, in my view, unsatisfactory—situation, I am told that some coroners have worked with the relevant intelligence and security agencies to secure as much information as possible to ensure that a viable inquest could take place. In some circumstances, coroners have been shown withheld material in private, although they have not been able to make use of it. They have also been prevented by law from seeing any material protected by the Regulation of Investigatory Powers Act 2000, including intercept material.
We have developed the proposals because we believe that the current state of the law and process is unsatisfactory. It has resulted in two inquests being unable to proceed because the coroners cannot comply with their article 2 obligation to conduct a broad inquiry into the circumstances of deaths resulting from an act or omission of the state. Given that coroners’ inquests are increasingly being used to discharge those article 2 obligations, it is likely that that will continue to pose a problem in a small number of cases in future.
I do not claim to the House that the provisions in the Bill are the last word—indeed, we are open to amendments. However, I ask hon. Members to acknowledge that there is a problem and that PII certificates will not tackle it. The state is not in the shoes of a prosecutor in respect of an inquest. As I have said, in the case of a criminal trial, the prosecution can be withdrawn, but in the case of an inquest, that cannot happen.
Part 1 of the Bill seeks to ensure that there is a proper legal basis for inquests to consider protected information. As I have already said, proposals relating to this first surfaced in the Counter-Terrorism Bill. However, the proposals in the Bill represent significant changes to those original provisions, and we have tried to take account of the criticisms that were made. We have narrowed the criteria for certification, and introduced a requirement that consideration must be given to every other way of preventing the material from being made public before the new measures can be used.
Mr. Grieve: I appreciate that this is an area of some difficulty, but I am sure that the Secretary of State will be aware that one of the reasons for holding an inquest is to satisfy the families as to the circumstances of a death. In an article 2 case, the provision and presumption is that there should be a jury. Indeed, that follows almost automatically at present. Frankly, the Government’s proposals are really no different from their convening a secret internal inquiry of their own and then saying afterwards, “We are satisfied that everything is all right.” The proposals, as drafted, for the secrecy clauses and for the lack of a jury completely undermine the purpose for which an inquest is convened in the first place. There must be a better way of resolving the Secretary of State’s dilemma than going down that road.
Mr. Straw:
If there is a better way, let us see it. I am not unsympathetic to the hon. and learned Gentleman’s point, but I have looked at this matter. I am not saying that this is the last word, but this is a really difficult issue. I wholly reject his suggestion that the Bill provides
for some kind of secret inquiry conducted by the Secretary of State. That is a parody of what it says. Moreover, as he knows, European jurisprudence—including the convention—does not require there to be a jury in any circumstances. We are very unusual, in England and Wales, in using juries as frequently as we do. That is a great strength of our system, but there is no requirement whatever, either in article 2 or in the Strasbourg jurisprudence, to do so.
David Howarth (Cambridge) (LD): The Bill does two different things. First, it removes the jury; secondly, it provides for an inquest to be held in private. Those are entirely different steps. The Secretary of State’s arguments in favour of holding an inquest in private do not justify the removal of a jury, unless one believes that juries inherently represent some kind of security risk. Are not the Government taking the attitude that members of the public are incapable of keeping confidential the information that is put before them as jurors?
Mr. Straw: In extreme cases—I can think of cases in which I myself signed public interest immunity certificates— there would be a grave risk of death for some individuals if certain categories of information were to be held by more than a handful of people. That point cannot be trivialised.
Mr. Straw: I will of course give way in a moment, but, if the House will allow me, I want to make a little progress.
We have narrowed the criteria, and there will also be a requirement that consideration must be given to every other way of preventing the material from being made public before the measures can be used. It is true that these provisions were not on the statute book at the time of the de Menezes inquest, but it was perfectly plain that every effort was made, successfully, to ensure that that inquest could take place without the need to resort to similar measures or for the inquest to be deferred. That will be the default setting, as it were, and it is set out in the Bill.
The Bill anticipates that any decision by the Secretary of State to certify an inquest will be subject to judicial review by the courts. I have no doubt that any such review would be thorough. Indeed, the provisions include a requirement for the Secretary of State to notify interested parties of such a decision, followed by a period of grace to give them the opportunity to apply for judicial review. If judicial review proceedings are brought, the Secretary of State’s certificate will have no effect until they are concluded.
Last Session’s Bill provided that the appointment of a coroner should be made by the Secretary of State, but there were many objections to that, which I fully understand. This Bill provides explicitly for there to be no involvement—and this is entirely correct—by a Secretary of State in the appointment, which is to be made by the Lord Chief Justice and should be of a High Court judge.
Mr. Straw: I shall give way first to my right hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth), and then to other hon. Friends.
Mr. George Howarth (Knowsley, North and Sefton, East) (Lab): The hon. Member for Cambridge (David Howarth) spoke earlier about instances where the jury is removed from inquest proceedings. If, however, the case were important enough to be covered by a public interest immunity certificate—I realise that that is not what is being proposed—the information contained in it would almost by definition be of a sufficiently high level of secrecy that a jury would not be privy to it in any case.
Mr. Straw: My right hon. Friend is correct. That is the problem and it explains why we run into the difficulties that I have outlined.
Mr. Chris Mullin (Sunderland, South) (Lab): How satisfied is my right hon. Friend that if the secrecy option had been available in the de Menezes case, it would not have been used? I say that because the default position of those in authority when a mistake of that magnitude occurs is usually secrecy. My right hon. Friend will recall that in that case, the Metropolitan Commissioner wrote to the then Home Secretary the day after the shooting occurred and asked that there be no independent inquiry into the circumstances. He was apparently unaware that the Independent Police Complaints Commission was obliged by law to hold such an inquiry. The danger is that once one opens this little gap in the law, it will be exploited.
Mr. Straw: I do not deny the temptation, but it is for that reason that under clause 11(1)(b):
“The Secretary of State may certify an investigation... into a person’s death if of the opinion that... no other measures would be adequate to prevent the matter being made public.”
That is very explicit language and that provision would itself be the subject of very anxious scrutiny by the court on a judicial review of a Secretary of State’s certificate.
David Davis (Haltemprice and Howden) (Con): I ask the right hon. Gentleman to come back to the issue raised by the Liberal spokesman, the hon. Member for Cambridge (David Howarth). There have been instances in the past when jury trials have been held partially in camera—I am thinking back to times when the Soviet Union still existed and we had spy trials—and under those circumstances, of course lives were at risk. It was not always British citizens’ lives, as agents in the Soviet Union and so forth were sometimes involved, yet jury trials were still held. Why is it not possible to reconstitute that sort of arrangement?
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