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23 Mar 2009 : Column 70

Rob Marris (Wolverhampton, South-West) (Lab): I am grateful to the hon. Gentleman for giving way; he is being very generous. I say this as a citizen of Canada, one of our closest allies: the passage to which he refers could relate not to embarrassment—I quite take his point on that—but to the national security of another country.

David Howarth: The central point is that national security is taken as a separate ground; it is the first ground. Separate from that, there is the ground of relations with a foreign power. Separate from that are matters to do with protecting witnesses, and separate from that is the issue of the prevention and detection of crime. Those are separate grounds. As I said right at the start of my remarks, no one questions the need for certain proceedings at certain times to be held behind closed doors for national security reasons, but that is different from what is covered in the second ground.

Rob Marris: Is the hon. Gentleman saying that the two words in the new clause—“national security”—encompass the national security not only of the United Kingdom, but of another country?

David Howarth: If the hon. Gentleman is referring to new clause 14, the answer is no; in the new clause, “national security” is the national security of our country, and our country alone.

Mr. Paul Keetch (Hereford) (LD): So far as I am aware, no coroners involved in certain military operations have made complaints about the existing arrangements for inquests. If the existing arrangements seem to work well, why is it necessary to add an extra element, when the existing element relating to national security appears to cover everything?

David Howarth: My hon. Friend is right: the complaints about the system do not, in this case, come from the coroner service, but from outside it. We are talking about a political matter, rather than just a legal or technical one within the service.

Mr. Mike Hancock (Portsmouth, South) (LD): My hon. Friend has said more than once that he agrees that there are occasions when, for national security reasons, juries might be excluded. I certainly do not believe that that should be the case. Does he concede that there are times when the family have no right at all to be represented in the courts? Once again, I certainly do not share that view. Can he conceive of any circumstances in which a family should not be present when an inquest is being carried out on a family member?

David Howarth: My hon. Friend should be clear that our new clause 14 never allows a jury to be excluded, no matter what the circumstances. That is where we fundamentally differ from the Government. In fact, the Government’s concessions are insufficient precisely because they still allow the jury to be entirely removed. My hon. Friend mentions the question of the family. Our new clause allows the family back in—well, technically, it gives the coroner the discretion, in every case, to allow the family back in. Under the Government’s proposal, the family are still excluded in all circumstances. The Secretary of State, and the Under-Secretary of State for
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Justice, the hon. Member for Lewisham, East (Bridget Prentice), are shaking their heads—perhaps they want to intervene—but there is no provision in the Government’s proposals to allow families back in once they have been excluded.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): May I take the hon. Gentleman back to what he said about friendly fire? Was there not a rather famous case, about two years ago, involving the deputy coroner of Oxfordshire, in which American fighters had killed some British servicemen, and the videotapes were not released? Is not that a case in which it might be useful to use such a provision?

David Howarth: That is entirely possible. There is interesting speculation, let us say, about the origin of the sub-paragraphs of clause 11(2)(a). One explanation is that they have to do with relations with the United States and friendly fire cases. However, another historical explanation has been given, and should perhaps be put on record. It is that objections came from the Metropolitan police because of what happened in the Rodney case, in which a young man was shot by the police. The inquest was not able to continue because of the problem—it was at least seen as such at the time—of wire-tap evidence not being admissible. There might have been other problems to do with the legality of intrusive surveillance. That is another possibility for the origins of the provisions.

John McDonnell (Hayes and Harlington) (Lab): Under the existing system there is already the opportunity for the coroner to take into account issues of national security. If the Government are concerned about the security of other nations—I can understand that being a concern—could they not make that more specific in the Bill instead of the rather broad concept of a relationship with another country?

David Howarth: That is absolutely right. Throughout the passage of the Bill I have been trying to pin the Government down to putting into the Bill what they really mean, as opposed to making the clauses as broad as they can, either to obscure what they really mean or just in case they need something else later. The central problem still relates to the jury and the family. Why exclude the jury in the circumstances under discussion?

The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): In my remarks I will deal with the jury issue, which is central. To reassure the hon. Gentleman in respect of the family, there is no suggestion that the family should be excluded, even were there to be an inquest conducted by a High Court judge rather than with a jury, except from the protected material. The rest would be as before.

David Howarth: The trouble with that is that in many cases the protected material seems to be implicated in everything that happens in the case— [Interruption.] The Secretary of State says that that might be only a tiny part, but these cases are all of a piece. All the bits of evidence come together to build up a picture, and if one has only part of the picture, how does one explain the
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difference? One can explain it only if there is some means of finding out what was in the protected material. In practice, once the family had been excluded from the protected material, I do not think that it would be possible to let them into the rest of the case. That is a serious problem.

Mr. Henry Bellingham (North-West Norfolk) (Con): I take the hon. Gentleman back to the Azelle Rodney case which, as he rightly pointed out, ground to a halt because of problems over intercept evidence. He will be aware that clause 13 allows intercept material to be admissible in inquiries in certified investigations, but if it were allowed in all inquests, surely that would easily sort out the Azelle Rodney case. Does the hon. Gentleman agree that it is extraordinary that the Government originally based their entire case in support of clause 11 on two inquests? One is now back on track; the other is that of Azelle Rodney, which could easily be resolved by allowing intercept evidence.

David Howarth: I believe that the hon. Gentleman is correct. The whole issue could be resolved by generalising the principle that the Government have already conceded—the principle of allowing intercept evidence into inquests. The problem from the Government’s point of view is that they will concede that point only when the jury has gone. That seems quite wrong and it comes back to the central problem. For some reason, the Government have concluded that juries are dangerous outsiders, which brings us directly back to the point made by the right hon. Member for Suffolk, Coastal. It is as if the world could be divided into the reliable and the unreliable, and the easiest way, according to the Government, of finding out whether somebody is reliable or unreliable is to ask whether they are a servant of the state. If they are a servant of the state they are presumed to be reliable, and if they are an ordinary member of the public, they are presumed to be unreliable. That has only to be stated to demonstrate how ridiculous the position is.

6.15 pm

Mr. Grieve: The hon. Gentleman will recollect that the Government’s current position is that they are working towards allowing intercept evidence to be available in criminal trials with juries. We may never get there, but that is the stated intention. If they ever reached that point, it would be difficult to see how the argument in relation to inquest juries could be tenable any longer.

David Howarth: That is entirely correct. I do not understand why the Government see this as the thin end of the wedge, when in the end they are in favour of hammering in the wedge completely.

There might be other problems in the Rodney case mentioned by the hon. Member for North-West Norfolk (Mr. Bellingham), but those problems have to do with the admissibility of illegally obtained evidence, which could be dealt with in a completely different way, not by removing the jury.

Mr. Hancock: May I return to the issue of the family and the protected information? Can my hon. Friend conceive of a situation where it is possible for the family to be excluded because the information presented was protected yet the subject of that information was the cause of their loved one’s death? How can that be right in any court in any circumstance?

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David Howarth: The Government seem to think there is some way in which the family could understand the whole case except for the most important part. That cannot be satisfactory.

What can be done instead is for the coroner to take measures to protect the identity of police undercover agents and informers, for example, to make sure that those people are not endangered by the information’s coming out, and when that has been done, to allow the family back into the proceedings. They will then find out the nature of the events that led to the death of their relative. They do not need to know the exact identity of police informers or of undercover officers to understand that.

The Government’s attempt to change their proposals should to some extent be welcomed, because they are moving on the issue, but like many other hon. Members I do not believe that they have moved far enough, especially on the crucial question of the jury and on families. What will happen when the Secretary of State says to the court, “Judge, the following information is protected. Remove the jury in this case on the basis of what we tell you.” What other information, at that point, will the judge have? The judge will have only the information from the Government. Given the nature of the proceedings, they will have to be held in camera, and will be practically unchallengeable.

Even if the Government come up with a variety of reasons why the House should not accept our new clause 14, which is our attempt to put forward an alternative to the Government’s proposal, it is entirely fair to expect them to justify their new proposals. For that reason, I shall seek at the appropriate time to divide the House at least on amendment 2, which has the effect of removing clause 11.

Mr. Straw: It may assist the House if I try to respond to the points made by the hon. Member for Cambridge (David Howarth) and explain the changes that we have made in the amendments before the House, which are intended to meet the understandable criticisms that were raised on both sides of the House about the original proposals.

I note that the hon. Gentleman said that he welcomed the proposals but that they did not go far enough. In their parliamentary briefing the Bar Council and the Criminal Bar Association did not qualify the welcome that they gave, as the hon. Gentleman did. Since the Criminal Bar Association and the Bar Council are no mean critics, quite properly, of proposals from this Government and from previous Governments, I ask the House to take account of what they said. I shall read it out in full:

The briefing repeats:

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Mrs. Joan Humble (Blackpool, North and Fleetwood) (Lab): Has my right hon. Friend looked at the comments made by the Royal British Legion in respect of the families affected by the case that has been mentioned? What answer can he give the legion and the bereaved families, who see the inquest system as their opportunity to get a final answer about the death of their loved ones? Will my right hon. Friend’s mechanism allow them to get that final answer?

Mr. Straw: Absolutely. The whole purpose of the Bill’s provisions on coroners is to strengthen and improve how the coronial system operates—not least in respect of military inquests investigating cases in which relatives have lost loved ones who were serving the country. There will be a chief coroner, who will be a High Court judge, and a deputy coroner, and there will be much greater co-ordination between coroners; we will be able to provide a better service than what has been possible until now. Furthermore, there will be proper rights of appeal when there are concerns. It will no longer be necessary judicially to review coroners’ decisions, because proper rights of appeal are embedded in the Bill.

I fully understand the important points of principle raised by the issue—which is narrow, as I shall explain—of whether there will be circumstances in which the court might decide that the only way forward would be without a jury. There are two excellent examples, both of which have been raised by the hon. Member for North-West Norfolk (Mr. Bellingham). Neither example—although there is now only one—involved the death of a military serviceperson.

Mr. James Gray (North Wiltshire) (Con): On the question of military inquests, the curiosity of the right hon. Gentleman’s proposed changes is that the vast bulk of such inquests are already heard with no jury. The coroners handle perfectly well the issue of what must and must not be secret, and the families are always there. Why should that perfectly good system be changed into a certification procedure involving the High Court?

Mr. Straw: There is not a good reason in respect of the inquests to which the hon. Gentleman has referred.

I shall detain the House without taking interventions to go through the changes that have been made. In respect of the system being set up, it is my wish that the occasions when the court—not Ministers—comes to the view that an inquest without a jury is necessary will be very few and far between, and we do not anticipate that military service inquests will be involved.

I want to pick up the wording of the Bar Council and go through the fundamental recasting of the proposals. First, the criteria in the amendments have been significantly tightened. I shall come to the issue of the relationship between the United Kingdom and another country, but first I ask Members to look at amendment 94. Three criteria are set out. Paragraph (d) states that the Secretary of State has to be

Not only were the criteria wider before, but the Secretary of State had simply to be “of the opinion”; now he or she would have to be

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We have greatly reduced and tightened the criteria; what were generally regarded, including by me, as catch-all criteria have been removed altogether.

There does not seem to be any argument in the House about the interests of national security or the prevention or detection of crime. As far as the relationship between the United Kingdom and another country is concerned, there is no suggestion whatever that such conditions should be used to cover up embarrassment on the part of the United Kingdom; that would be not only a preposterous but a worthless exercise for any Secretary of State, as I shall explain.

In evidence to the Joint Committee on Human Rights, the Under-Secretary of State for Justice, my hon. Friend the Member for Lewisham, East (Bridget Prentice), set out in detail an example in which we had co-operated with a foreign country over the detection and interception of drug dealers; for the reasons given, that would not necessarily come under national security or the detection or prevention of a crime. If the circumstances of our involvement were to be disclosed, that could not only seriously disrupt our relations with that foreign country, but lead to a lack of co-operation on central issues relating to our and that country’s interests.

Mark Fisher (Stoke-on-Trent, Central) (Lab): Was not the case to which the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) referred, which came in front of the Oxford coroner about two years ago, exactly that—somewhat embarrassing to both the American Government and ours? It involved friendly fire that had killed our service personnel. Was not what the Secretary of State has mentioned behind the suppression of those inquests? How are such issues being resolved? I do not see that they are.

Mr. Straw: I shall explain that in a moment. The decision will not be made by the Secretary of State; we are strengthening the law in this respect.

Mr. Hogg: Unlike my party’s Front Benchers, I am prepared to accept that there are a number of cases for which jury-free inquests can properly take place. However, the bar has been set too low. We have been told that the Secretary of State would have to be “of the opinion”; that is a low standard. If we look at the certification process when the coroner is making the determination, we see that the High Court judge has only to be satisfied—on the balance of probabilities, I suspect. If the right hon. Gentleman increased the test so that it involved satisfaction beyond reasonable doubt, I would be with him.

Mr. Straw: I am grateful to the right hon. and learned Gentleman for his acknowledgement that there is a problem with which we must deal. There is, and that view is widely shared. We have made a fundamental change with these proposals, and to those who say that the parliamentary process does not work, I simply say that it does. Bluntly, these proposals are a million miles from how they started out in the original Counter-Terrorism Bill. Under the original proposals, the Secretary of State was to be of the opinion that there should be no jury, and his or her decision was to have been final—subject only to the possibility of judicial review. Furthermore, he or she would then have appointed the coroner. This
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Bill is completely different. I am certainly open to further consideration in the other place about how we should further tighten the criteria without losing the whole purpose of the measures.

I turn to the second, really important limb. Even under the proposals originally presented by this Bill on publication, the Secretary of State was to have triggered the decision on whether there should be no jury—although the inquest was to have been held by a High Court judge rather than by an ordinary coroner; that was an improvement. I invite the House to turn to amendment 97 to see how these proposals differ. The Secretary of State makes a certification. There have been suggestions that the certification should be made by the court. However, the courts have always been reluctant to stand in the shoes of the Executive when it comes to judgments about national security. They do not want to make those decisions, as was made clear in a series of judgments, including by Lord Hoffman in the Rehman case.

David Howarth: To the extent that the right hon. Gentleman is right, that still does not explain why the other criteria are still in the Bill—the criteria about relations with a foreign state or, especially, the prevention and detection of crime and protection of witnesses. Especially on the last two, the Secretary of State has no comparative advantage over the rest of the legal system.

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