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Coroners and Justice Bill
[Relevant Documents: The Second Report from the Justice Committee, Session 2008-09, The Coroners and Justice Bill, HC 185, and th e Government’s response, HC 322, and the Eighth Report from the Joint Committee on Human Rights, Session 2008-09, Legislative Scrutiny: Coroners and Justice Bill, HC 362. ]
Consideration of Bill, as amended in the Public Bill Committee.
‘(1) The Secretary of State may apply to the High Court for a certificate ordering that an inquest be held in camera.
(2) The Secretary of State may only apply for a certificate if he is satisfied that it would be necessary to prevent material or information being disclosed whose disclosure would be seriously detrimental to national security.
(3) The court may only grant the certificate if it is satisfied—
(a) that granting the certificate is necessary to prevent material or information being disclosed whose disclosure would be seriously detrimental to national security; and
(b) that other measures short of granting a certificate would not be adequate to prevent such disclosure.
(4) Where the court grants a certificate, the following provisions apply—
(a) the Lord Chief Justice may appoint a judge of the High Court to act as coroner for the case, and a judge so appointed shall have the same functions and powers in relation to the body and the investigation as would be the case if he or she were the senior coroner in whose area the body was situated;
(b) the jury may be subject to checking in accordance with the Attorney General’s Guidelines on Jury Checks.
(5) The Attorney General must, on the coming of this section into force, consider revising the Guidelines on Jury Checks to meet the particular requirements of inquests in camera.
(6) If a jury has already been summoned when a certificate is issued, that jury must be discharged and a new jury summoned.
(7) The powers of coroners to protect the identity of witnesses shall apply to inquests in camera to the same extent that they apply to other inquests.
(8) The certificate may require that part of the inquest be held in camera and part in public, and the court must only issue a certificate requiring the whole of an inquest to be held in camera if the disclosure of material or information whose disclosure would be seriously detrimental to national security cannot be prevented in any other way.
(9) Where a certificate has been issued under this section, the coroner or judge may at any time, taking into account any other measures that the coroner or judge may have taken, including measures to protect the identity of witnesses, admit to the proceedings any interested person he may specify, provided that he is satisfied that doing so will not lead to material or information being disclosed whose disclosure would be seriously detrimental to national security.
(10) Where a decision made by a judge conducting an investigation by virtue of this section gives rise to an appeal under section 30, and the Lord Chief Justice has exercised the power in subsection (4)(a), that section has effect as if references in it to the Chief Coroner were references to a judge of the Court of Appeal nominated by the Lord Chief Justice.
(11) A reference in this section or section [Discontinuance or variance of certificate for inquest in camera] to conducting an investigation, in the case of an investigation that has already begun, is to be read as a reference to continuing to conduct it.’.— (David Howarth.)
Brought up, and read the First time.
5.55 pm
David Howarth (Cambridge) (LD): I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss the following:
New clause 15— Discontinuation or variance of certificate for inquest in camera—
‘(1) A certificate under section [Inquests in camera] has effect in relation to an investigation until it is discontinued or varied.
(2) A certification may (but need not) be discontinued or varied by the Lord Chief Justice at any time on application from the Secretary of State, the investigating coroner or judge of the High Court, or any interested person.
(3) Where a certificate has been discontinued or varied, and a jury has been summoned, the inquest is to continue with the same jury.’.
New clause 16— Intercept evidence—
‘(1) Section 18 of the Regulation of Investigatory Powers Act 2000 (c. 23) (exclusion of matter from legal proceedings: exceptions) is amended as follows.
(2) In subsection (7), after paragraph (c) insert—
“(d) a disclosure to an inquest for which a relevant certificate exists under section [Inquests in camera], and where the coroner or judge is satisfied that the exceptional circumstances of the case make the disclosure essential to enable the matters that are required to be ascertained by the investigation to be ascertained.”.’.
Amendment 2, page 6, line 2, leave out clause 11.
Amendments (a) to (c), (e) to (g), (d), (i) and (h) thereto.
Amendment 4, clause 11, page 6, line 4, after ‘if’, insert
‘the matter has been referred to the Lord Chief Justice and he or she is’.Amendment 47, page 6, line 4, leave out ‘of the opinion’ and insert
‘he is satisfied beyond a reasonable doubt’.Amendment 5, page 6, line 6, leave out ‘any of the reasons’ and insert ‘the reason’.
Amendment 6, page 6, line 9, leave out ‘reasons are’ and insert ‘reason is’.
Amendment 48, page 6, line 12, leave out sub-paragraph (ii).
Amendment 7, page 6, leave out lines 12 to 16.
Amendment 49, page 6, line 14, after ‘detecting’, insert ‘serious’.
Amendment 52, page 6, line 16, leave out paragraph (c).
Amendment 50, page 6, leave out lines 31 to 34 and insert
‘until it has been confirmed by a judge of the High Court.’.Amendment 51, page 6, line 34, at end insert—
‘(5A) On an application by the Secretary of State for the confirmation of a certification under subsections (1) and (2), the court may confirm the certification only if it is satisfied beyond a reasonable doubt that—
(a) the investigation will concern or involve a matter that should not be made public for any of the reasons that are set out in subsection (2), and
(b) that no other measures would be adequate to prevent the matters being made public.’.
Amendments (b), (a), (c) and (d) thereto.
Government amendments 98, 99 and 3.
Amendment 30, page 7, line 18, leave out clause 13.
Government amendments 101, 102, 109 and 110.
Amendment 16, page 23, line 26, leave out clause 38.
Amendment 29, clause 38, page 23, line 28, leave out ‘and in sections 11 and 12’.
Government amendments 112 and 113.
Amendment 17, page 139, line 1, leave out schedule 9.
Amendment 28, page 141, line 18, leave out from beginning to end of line 23 on page 142.
Amendments (a) to (e) thereto.
Government amendments 127 and 128.
David Howarth: We now turn, at last, to the issue of inquests without a jury. I use that term advisedly, because the central issue is not whether proceedings on inquests should sometimes have to be held in private—in some national security cases, there are certainly times when that should happen—but whether when somebody has died at the hands of the state, a jury that has been summoned should, at the behest of the Secretary of State or through some other procedure, afterwards be dismissed and removed from the case, so that the case in the inquest continues without a jury.
Originally in this Bill—of course, there were proposals in a previous Bill—the Government proposed a procedure whereby the Secretary of State would simply certify that the inquest would involve a risk of releasing information that might harm national security, relations with a foreign power, the prevention of crime or the protection of witnesses, or that might involve “other real harm” to the public interest. That certificate would mean that the coroner would be instantly removed from the case and replaced by a High Court judge, and that any jury that had been summoned would be removed, too. The case would continue without a jury and, presumably, in private, excluding everybody from the proceedings, including the family of the deceased.
There were protests from all sides about that proposal. It was wrong, first of all, because the Secretary of State decided everything himself on the certificate. Secondly, the grounds on which the Secretary of State could issue a certificate were far too wide. The real harm clause, for example, was very broad and it was confusing, because the Bill contains the exact same phrase later on which the Government admitted meant something different. Protecting witnesses sounded plausible as a reason for excluding the public, at least, from the full inquest, until in Committee the Government admitted under pressure
from amendments that proposed giving a power to coroners to give anonymity to witnesses that coroners already have extensive powers to protect the identity of witnesses by the equivalent of anonymity orders and to impose all the special measures that are open to criminal courts when it comes to protecting identity and protecting witnesses. The broad grounds therefore made no sense.
Thirdly, the removal of the jury raises a fundamental point. Juries do not come into inquests in many cases, but when they do, it is because the case is a crucial one—when someone has died at the hands of the police or in custody, and where there are serious questions about the responsibility of the state for the death. It is unquestionably a crucial part of public confidence in the state, the police and the Prison Service that there are ordinary people in the jury to make the judgments in such cases.
Mr. John Gummer (Suffolk, Coastal) (Con): Does the hon. Gentleman not agree that a crucial part of this issue is that juries can be a flipping nuisance to the Government in such circumstances? Does he agree that the real fear is that the Government are trying to make the change because they do not like to be embarrassed by 12 good men and women and true?
David Howarth: I am afraid that the conclusion that I have come to is that that is right. I will come back to that point later, when I address how the Government have changed their proposals, because the changes have not dealt with that precise point.
6 pm
The fourth reason why the Government’s original proposals were objectionable was that the family were excluded. A situation in which the family hear only the bare verdict and no explanation of what has gone on, after having been removed from the proceedings, is completely unsatisfactory. The family will not feel that any explanation of what happened was available to them, and are sure to have very little confidence in what happened.
The Government have changed their proposals to some extent. The Secretary of State will still decide on the matter of the certificate. When the certificate is issued, it will still have the effect of removing the coroner—it is interesting to ask why Governments do not trust coroners, to come back to the point made by the right hon. Member for Suffolk, Coastal (Mr. Gummer)—but it will replace the coroner with the supposedly more trustworthy High Court judge. The Government have made a concession, which means that at that point, instead of the jury being removed automatically, the High Court judge will consider whether to remove the jury. That is the first change.
Secondly, the grounds on which a certificate can be issued by a Secretary of State have changed slightly. The catch-all
“real harm to the public interest”
provision has been scrapped, but the other four grounds are still there.
Mr. David Heath (Somerton and Frome) (LD): Has my hon. Friend received any satisfactory explanation from the Lord Chancellor, or indeed anyone else, on why it is necessary to include the second ground—
“the relationship between the United Kingdom and another country”—
outwith the grounds of “national security” and “preventing or detecting crime”? Why should we be in the extraordinary situation of including a novel procedure to protect the agents of another country from, it appears, embarrassment?
David Howarth: My hon. Friend is right; the second ground, as a free-standing ground, cannot have anything to do with national security, because that is covered by the first ground. The second ground can only be about embarrassment.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): May I suggest to the hon. Gentleman the kind of embarrassment that the Government have in mind? A victim of extraordinary rendition being killed during that process, or somebody who is questioned in Guantanamo Bay dying under interrogation—that is what the Government are worried about.
David Howarth: Yes, I agree with that, although I suppose that the Government might argue that those are national security grounds.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): Is clause 11 not almost lifted from the Official Secrets Act, and does that not tell us a lot about the Coroners and Justice Bill?
David Howarth: The hon. Gentleman is probably right. One can always tell quite a lot about legislation by the templates that are used, and where they are from.
Mr. Dominic Grieve (Beaconsfield) (Con): I take the view, on reading the clause, that the application must be intended to be much wider than national security, because all the examples that we have just heard might conceivably be caught by national security. It seems to me that embarrassment, in this context, means exactly that. I find it troubling that the Government should consider the embarrassment of their relations with another country, when that falls short of being a matter of national security, to come into the criteria at all.
David Howarth: That is correct. It is of course possible that what is envisaged is not so much the rather more shameful sort of case to which the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) referred, but the still embarrassing matter of death through friendly fire.
Andrew Mackinlay (Thurrock) (Lab): Is not the truth that there is a quid pro quo between the United Kingdom and some of its friends, particularly—but not exclusively—the United States? Our Intelligence Services Act 1994 makes lawful in English law any activities that our agents undertake abroad, and vice versa. Basically, in United States law, and in some other countries, it would be possible for someone to bump off a person in the United Kingdom, but those countries do not want to go there because we have reciprocal arrangements. That is the truth; it is the scandalous UK Intelligence Services Act 1994, and comparable Acts in other countries, that are covered by the provision about not causing embarrassment to other states.
David Howarth: The hon. Gentleman gets to the heart of the reality of the special relationship. There are later amendments on foreign conspiracies, and he will be able to raise that point directly in debate on them.
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