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Mr. Straw: I understand the point that the hon. Gentleman is making. One could argue that those decisions should be made ab initio by the court, although I do not. The court will make the decision, but someone has to trigger the processthe court cannot start it of its own volitionby saying that there is a real problem; it could be the prosecution. There comes a point where an application is made to the court for it to make a decision about whether it is really essentialnecessaryto dispense with a jury or to have other measures. At that point, the process set out in amendment 97 operates. As hon. Members on both sides of the House will see, it says:
The judge holding an inquest as part of a certified investigation must hold it without a jury if...there is a protected matter that would need to be revealed to the jury...in order for the jury to be able properly to discharge its duty
to avoid a breach of...Convention rights
the judge is satisfied that it is necessary to hold the inquest without a jury in order to avoid the matter being made public or unlawfully disclosed.
It is the judge who has to be satisfied. The next limb talks about circumstances in which the judge operates with a jury. The Bill plainly anticipates that it is for the judge to determine whether this is necessary.
There is no way that any sane Secretary of State would, for trivial reasonsor for reasons of embarrassment to the Government, to pick up on the point made by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd)sign an application and make a certificate only to have his head scrubbed by the learned judge for coming forward with an application that was trivial and unfounded. Applications will be made by the Secretary of State where he or she believes that it is necessary not
to have a jury but the court comes to a different decision. I very much hope that that will happen, and the Secretary of State is put to proof. The court will anxiously examine whether there are any other measures short of dispensing with a jury that could meet the requirements of the law.
One of the options that the court could consider is the so-called gisting of secret evidence to be put before the jury. Gisting, whereby the gist of secret evidence is summarised, has been used on several occasions; I understand that it was used in the de Menezes case. Some argue that if the de Menezes case proceeded satisfactorily without dispensing with a jury, that could apply in all cases. There may be caseswe think that there is one at the momentwhere it is likely to be the judgment, on application to the court by the Secretary of State, that dispensing with a jury is necessary. The de Menezes case shows that the courts have been ingenious and imaginative in setting down certain conditions by which highly sensitive information is protected and, none the less, the jury is able to get to the full facts. One of the processes for that is the gisting of such protected matters.
Under this measure, there is no question but that a certificate would be signed and there would then be an application to the court. It is the Secretary of State who is put to proof to make his or her case. I understand all the arguments made in favour of juries being used in these cases. The judge would, quite properly, lean over backwards to see whether it is possible to meet the concerns of the Secretary of State without having to dispense with a jury. Only in very exceptional casesthey would be few and far between, but they may arisewould the judge come to the view that a jury should be dispensed with.
Mr. Grieve: I have always appreciated that this is a difficult issue for the Government. The right hon. Gentleman seems to be making a compelling argument for the maintenance of the status quo, because there appear already to be several ways through these problems to enable inquests where juries are required to take place with juries. Does not that rather weaken the new framework that he is trying to put in place? I have always accepted that the amendments that he has tabled are a considerable improvement, but they are insufficient.
Mr. Straw: What the hon. and learned Gentleman suggests is likely to be so in the vast majority of cases. I anticipate that the phrasing of the amendment means that applications will be few and far between, still more so the granting of those applications. That is a good thing, not a bad thing. I can envisage what may happen from my own experience of being responsible first for the Security Service and then for the Secret Intelligence Service and GCHQ, when some intercept or intercept-related evidence was so sensitive that one could not risk its going beyond a High Court judge. Any Secretary of State faced with that situation may decide to resort to not proceeding with an inquest but instead going down the route of an inquiry under the Inquiries Act 2005, which would have the effect of dispensing with a jury. That would be article 2 compliant, because there is no provision for juries in the European convention on human rights. This debate may be slightly uncomfortable, but I do not want to achieve thatI want to achieve a situation whereby the Secretary of State is never faced with that decision but always has to go to the court.
Mr. Grieve: I wonder if the Secretary of State is correct about this. The reason for having an inquestone of the main criteria, as defined in the case of Aminis to satisfy the families, not to provide an explanation for the benefit of the state alone, yet the system that is to be set up will never satisfy families. In those circumstances, it would be better to take the inquiry route, which would of course lead to a great deal of condemnation but would at least be clear that there is no attempt to skew the coronial system in a way that was never intended. I feel strongly that what he is trying to do, doubtless for good reasons, will undermine the system, not enhance it.
Mr. Straw: The hon. and learned Gentleman has made an interesting choice. I commend him for doing so, but it is a much less acceptable choice than the one that I have made and commend to the House. Let us be clear about this. He is saying that there could be circumstances where it would not be possible to hold an inquest with a jury, and therefore it should be for the Secretary of State to decide to hold an inquiry under the Inquiries Act, with as much accommodation for the family as possible. I am powerfully committed to the use of juries in such cases, as in others, but it does not follow that an inquiry without a jury will never satisfy the family. The decision will be made by the Secretary of State and it cannot be tested except under judicial review. In this system, however, scrutiny by the court will be much more intense than it would be under judicial review, because it will be for the judge to make the decision not to review others decisions.
Mr. Grieve: The problem with the planned system is that once it is on the statute book, it will be used far more frequently than any resort to inquiries under section 2 of the Inquiries Act. Once the system is an established procedure, it will be quite easy for Secretaries of State to make applications and, in a sense, to exonerate themselves from the onerous aspects of the responsibility. They will say, The procedure is there. Parliament has set it up. There are instances in which coroners inquests can take place without a jury, even though they ought to be one. If I may say so, the Government have approached this process from the wrong direction. Because of thatalthough I have some sympathy with the Governments positionwe will support amendment 2 to delete clause 11. The Government have not made the case that the proposals are the right way forward. Other means already available, which do not require quite so much soul-searching on our part, may be used, but only in the most extreme circumstances. However, I fear that the provisions in the Bill will be used more often.
With great respect, I have not even finished my sentence. Their position is very different from that taken by most of those who signed the amendment to delete the existing clause 11. The hon. and learned Gentleman accepts that there can be non-jury inquests, but he also says that their use should be determined by a Secretary of State under the Inquiries Act 2005 procedure,
and not by an independent judge. His substantive argument is that the measures in the Bill would encourage applications, and that there would be more of them, but I do not accept that. I would be perfectly happy to have a small wager on it with the hon. and learned Gentleman. If he follows the approach of the courts, common law principles about open justice and the quite proper attitude taken by the High Court and the Court of Appealand ultimately by the Law Lordshe will understand that the idea that they will act as a patsy, or putty in the hands of a Secretary of State who thinks, Oh, there is a tiny embarrassment here. Lets go for a non-jury inquest, is frankly nonsense.
Mr. Heath: I wonder whether the Lord Chancellor overstates a judges latitude for determination in this matter. From my reading of amendment 97, the judge does not have the capacity to determine more than whether a protected matter would need to be revealed in order for the inquest to take place, and that it would therefore be necessary to hold an inquest without a jury in order to prevent it from being revealed. The judge does not appear to enjoy the clear latitude to determine whether the certification process that the Secretary of State undertook is, of necessity, correct. Perhaps I am misreading the amendment.
Mr. Straw: I think that the hon. Gentleman is misreading it. The judge has to decide that it is necessary to hold an inquest without a jury to avoid the given matter being made public or being unlawfully disclosed. As the de Menezes case made clear, plenty of other measures can be used, including gisting, which is an important consideration, to ensure that those disclosure criteria are met.
John McDonnell: The concerns that we have all expressed about there being an open door on this matter are similar to those we expressed about surveillance issues. In that context, the Government assured us that such surveillance would be conducted only in narrow circumstances, but the door was then opened to a far greater use of surveillance. My right hon. Friend is dwelling upon a contradiction. He has argued that the court is loth to interfere and judge on matters of national security, but decisions in such matters will be dependent on the Governments interpretation of national security. Several of us are anxious that the jury system will be lost in such cases purely on the basis that the High Court will always allow the Governments argument in such instances.
Mr. Straw: I understand my hon. Friends point, but I would just say this: it will be for the Secretary of State to make a judgment on national security grounds, or the other grounds set out, but doing so does not determine whether a jury is dispensed with. The Secretary of State will have to go to the court, and it is for the court to say, We do not necessarily disagree with your judgment on national securityit may do, because it may think that it is unreasonablebut we disagree with your view. It is up to us to make the judgment, which is clearly spelt out in amendment 97, about whether or not a jury should be dispensed with. That is the difference. A crucial distinction is being made between the Secretary of State essentially initiating the application and the learned judge dispensing with it.
Mr. Gummer: The Secretary of States defence would be easier to follow if he had not turned through 180 degrees. At the moment, he is telling us that the terms are all right because they are terribly narrow, but he has just told us that the amendment is light years away from what he wanted in the first place. He must accept that most of us approach his present explanation with a certain amount of suspicion. He started off wanting a huge opportunity to do what he wished; now he says that the remit will be very narrow. I put it to him again: would it not be better to have a system where, in such important circumstances, one would have to go down the potentially embarrassing route of having an inquiry? No Home Secretary would do that without considerable thought. That must be true, and the Secretary of State has made it true by starting off by asking for powers that were manifestly unacceptable.
Mr. Straw: My point about the measures before us being light years away related to the Counter-Terrorism Bill, which was a Government Bill, and the measures in it were very different. The right hon. Gentleman must accept that the House cannot have it both ways. It cannot say that it wants Ministers to listen to the arguments, then criticise them for so doing. People need to make up their minds.
Mr. Andrew Dismore (Hendon) (Lab): My right hon. Friend is right when he says that article 2 does not require a jury, but it is fair to say that the jury trial is one of the principal features of common law. He is also right to say that the Government have made a lot of progress, but that raises the question whether the changes were needed in the first place. The key point about article 2 is the need to involve families throughout. My right hon. Friend referred to gisting, and I put to him what happened in the Rodney case in which gisting featured and which the coroner ruled was inadequate. When I read the coroners judgment, I questioned whether he took the right approach to that issue. If we analyse the Rodney case properly, rather than just looking at it as a piece of hard law, we may find that there may have been a different conclusion if the matter had been tested in the courts. Has my right hon. Friend looked at the judgment of Mr. Justice Weatherup in the Northern Ireland case of McCaughey, which sets out simply and straightforwardly the public interest immunity process, and which would solve my right hon. Friends problems?
Mr. Straw: In the light of the overall changes being made, there will be a far greater opportunity for appeals against decisions by coroners than under the existing system. Such inquests will, in any event, be handled by the chief coroner or by another High Court judge on his or her behalf. Forgive me, what was my hon. Friends second point?
Public interest immunity is used in inquests, and the process worked successfully in the de Menezes case. The only problem is that it cannot be the only measure used to protect material in inquests because if a PII application is rejected, unusually, by the court in a
criminal trial and there is a risk that protected material would be put into the open court, it is open to the prosecution to withdraw altogether. That option does not exist in inquests.
Mr. Hogg: I am slightly embarrassed because I seem to be the right hon. Gentlemans only friend in this place on this occasion. It is important that the House should know what is meant by the phrase, the court is satisfied. I cannot help feeling that the House would be much happier if it thought that the court had to be satisfied beyond a reasonable doubt. If he would include that provision in the Bill, I suspect that he might get a lot more consent and support than he is getting at the moment.
Mr. Straw: The court must be satisfied that it is necessary, which is a high test. It will be for the courts to decide what the burden of proof is. People may disagree with the criteria, but it is a high test.
Mark Fisher: Like Opposition Members, I recognise that the Government have moved a long way on the matter, but they have sought to replace a provision that Members of all parties felt was dangerous and unreasonable with an extremely complicated paraphernalia of protections and clauses.
I recognise that the Secretary of State has substantially removed himself from the process, and that is to be welcomed. However, is it not the case that despite the amendments that he has tabled, families, particularly of armed service personnel who have been killed, will still not be able to know in what circumstances their son or daughter was killed? That surely cannot be satisfactory. Would it not be simpler to delete clause 11 altogether?
Mr. Straw: I do not accept that. We are talking about exceptional and difficult cases in which there is material that everybody agrees has to be protected. The family will not be excluded from an inquest save when the protected material is being dealt with. One can anticipate circumstances such as in the de Menezes case, when PII applications were accepted and some evidence was gisted, so neither the family nor the jury heard the full evidence. I am clear that in those circumstances, whether or not a jury is present, the coroner will lean over backwards to ensure that the family and jury are given the maximum information. There will also be special counsel in those circumstances to act on behalf of the family, although I know that that is not an adequate alternative. There is no requirement in convention rights for there to be a jury.
I do not criticise people who make the judgment that there should be an inquiry under the Inquiries Act, but I believe that it is the wrong judgment. Exactly the same issues would arise, such as what evidence the family could hear. Deleting clause 11 would not deal with the
problem that occasionally, inquests will be held without a jury and information will have to be gisted or summarised to the family. The difference is that the decision will be made by a judge under the Bill and would be made by the Secretary of State under the Oppositions proposals.
Mr. Tim Boswell (Daventry) (Con): The Secretary of State spoke about the conditions under which special counsel would be appointed, and I thought that I heard him say that if protected evidence was withheld from the family, for example, special counsel would automatically be available to that family. Can he confirm that that is the case?
Andrew Mackinlay: I have given notice twice in the House that I wished to raise the question of the inclusion of Northern Ireland in schedule 9, a matter that is covered in this group of amendments. I notice that clause 5(2) includes a provision to ensure that the definition of the purpose of an inquest complies with convention rights. If I may have the Secretary of States attention, may I ask him whether he has noticed that that does not extend to Northern Ireland? If it was considered right that that definition should comply with the European convention, why was it not extended to Northern Ireland?
Schedule 9 amends the Coroners Act (Northern Ireland) 1959, but clause 5 relates only to the 1953 England and Wales legislation. If I catch your eye later, Mr. Deputy Speaker, I wish to say that the whole of the Northern Ireland provisions should be taken out of the Bill, because they have been sloppily drafted, quite apart from political considerations. I urge the Secretary of State to address the fact that clause 5 does not extend to Northern Ireland. He and his colleagues and civil servants should recognise that and at least indicate that it will be amended in another place.
Mr. Straw: Amendment 120, to schedule 9, will amend the relevant Northern Ireland legislation, but I am certainly happy to consider my hon. Friends points. The arrangements have to be slightly different for Northern Ireland, for reasons that I think everyone accepts. I shall come back to that later.
I have made my point and discussed a number of amendments. We have considered the proposals carefully, and I do not believe that the scheme is overly complicated. It provides for Secretary of State certification according to strict criteria, an application to a High Court judge and a decision by that judge one way or the other, and a right of appeal to the Court of Appeal. It is my judgment that that process is fair, above all to the families, and better than what we have now established the Opposition believe is the only alternativean inquiry established under the Inquiries Act by fiat of the Secretary of State.
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