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Mr. Grieve: I am grateful to the Secretary of State for the time that he has spent at the Dispatch Box dealing with the matters that have been raised. As I disagree with him and will, I believe, vote differently from him a little later, I shall start by saying that I am mindful of the extent to which the Government have moved on this matter. We are considering a very different set of proposals
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from those that were first presented to me in the summer, in my previous guise as shadow Home Secretary, when they were to be part of the Counter-Terrorism Bill.

I am also mindful of the fact that when the issues were discussed then, in the briefings that the Government provided me with they succeeded in making a case, if not a completely persuasive one, that there was a problem that had to be addressed. Although I believe that their latest proposals could be pushed further, particularly the extraordinary sub-paragraph about

which causes me serious problems, I accept that they have tried to move yet further on the matter.

The problem for the Opposition is that the Government have produced a beguiling proposal and said, “We have moved as far as we can, and we think that this is the fairest system we can devise”, and are asking for our support. However, another voice makes itself felt within me, saying that there is absolutely no point in setting up a process to bypass the ordinary principle of the coroner system—that there will be a jury, particularly in cases of death at the hands of the state—if the result is that it will not command public confidence and support. It seems to me that nothing in the proposals that the Secretary of State has brought forward solves that problem.

If families are deprived of juries in coroners’ inquests, those inquests will be devalued to the point that they effectively cease to be of any real use. I remind myself of what Lord Bingham said about the criteria by which coroners’ inquests should normally take place, which bears repeating. He described those criteria as being

The principle is well established that “brought to light” means that the facts require public scrutiny.

7 pm

Mr. Hogg: I am sorry to disagree with my hon. and learned Friend, but High Court judges often have to rule on matters between the state and the individual—for example, in fatal accident cases and public inquiries. I have not heard the general proposition that the public are not willing to accept the verdict of a High Court judge—generally, I am and, generally, so are the public.

Mr. Grieve: I take my right hon. and learned Friend’s point. Speaking as a lawyer and a barrister practising in the courts, I have rarely had difficulty accepting High Court judges’ verdicts and judgments. However, the sort of inquest that we are considering will be highly emotive, give rise to serious public concern and be surrounded by a great deal of polemic, and the moderating influence of a jury, which I have extolled in other contexts in the criminal justice system—it also applies to libel cases—seems to be highly effective in reassuring the public that what is happening is not a procedure that is merely for the convenience of state authorities.

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I say to my right hon. and learned Friend that the Hutton inquiry into the death of Dr. David Kelly is a classic example of an inquiry that may have been impeccably conducted, but I know from my mailbag that it has never succeeded in answering or resolving some of the basic questions that arose from the case.

Mr. Straw: I am doing my best to follow the hon. and learned Gentleman, but he has got himself into a cul-de-sac. His argument would be pukka, acceptable and internally consistent if he maintained that there were no circumstances in which it was acceptable to hold an inquest without a jury. However, that is not his position. His comments about Lord Hutton and an inquiry makes my point, not his, because exactly the sort of non-jury inquest that he supports is a one-off inquiry by a High Court judge, without all the procedural protections for which the Bill provides.

Mr. Grieve: I fear that the Secretary of State is not listening to me develop my argument. From the moment I mentioned “inquiry”, he seized on the word and played around with it rather despairingly to try to persuade me and the House that there is a serious flaw in my argument. I do not believe that there is.

The inquiry route currently exists, but has hardly been used. When we considered 42-day pre-charge detention, we pointed out that the Civil Contingencies Act 2004 provided a mechanism in extremis for resolving an issue and extending detention, and that that was a better route than extension to 42 days. Although I have no desire for an inquiry to substitute for an inquest, if the problem is reduced, in the final analysis, to the one or two cases over a long period that the Government say they cannot take before a jury in an inquest—I still hope that ways to enable that to happen could be found, especially if we ever reach the point when intercept is admissible for all juries, and having vetted juries, if necessary—let the Government at that point come to the House, make a statement, after which there would doubtless be questions from hon. Members of all parties and polemic, and end up with the second best option. Although an inquiry may answer the Government’s questions, I doubt whether it answers those of the public.

The Secretary of State’s model is unsatisfactory because the way such things work suggests that every time an inquest presents a difficulty, instead of trying to find every means of resolving it in the existing system—the onus and pressure being on the Government to act in that way—there will be a temptation to say, “Well, we have a procedure voted on by Parliament, and we should go and see the judge, who’ll make decisions and we may end up with an inquest without a jury.” In my view, that is no better—and cannot be any better—than an inquiry, which will involve the polemic of the Secretary of State’s coming here.

Mr. William Cash (Stone) (Con): My hon. and learned Friend will be aware of the crisis in the Mid Staffordshire NHS Foundation Trust, which is next to my constituency and in which many of my constituents were involved. He also knows that many complaints have been made. I have called for a public inquiry because, under the Inquiries Act 2005, it is necessary to compel witnesses and call for evidence on oath. Does he accept that that,
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in those circumstances, as with the Legionnaire’s inquiry for which I called in 1984 in different circumstances, an inquiry can provide a suitable method of getting at the truth? That is what we need to do.

Mr. Grieve: I am grateful to my hon. Friend, but we must be careful not to conflate two things. In circumstances in which, for example, many people may have died through lack of care in a hospital, there may be powerful arguments for holding an inquiry in any event, and different criteria apply. I want to concentrate on the individual inquest; otherwise we are in danger of being diverted from the main issue.

Mr. Gummer: Is not my hon. and learned Friend saying that, if the Government had started with a narrowly defined point to cover one case, it would be easier for the public to have confidence when they used that narrowly defined power, but given that they started with a much wider provision, the public must believe that the Government want a great deal more occasion for using their non-jury alternative? The Justice Secretary complains that the House cannot have it both ways, but we are not trying to: we are pleased that the Government have narrowed their case. However, the Justice Secretary cannot say that we should not be suspicious, given his starting point. Is not my hon. and learned Friend’s solution therefore much safer?

Mr. Grieve: I agree entirely with my right hon. Friend. We cannot escape the starting point and we should not try to escape from the wording of clause 11(2) and the remaining wide criteria for making applications.

I was struck by the comments and questions of the hon. Member for Thurrock (Andrew Mackinlay) because anxiety has been expressed about how the provisions would apply in a Northern Ireland context. When the Minister of State, Northern Ireland Office, was taxed with the matter on 27 January on BBC Radio Ulster, he said:

The impression conveyed at an earlier stage was that the Government would use the provisions in Northern Ireland because it suited their interests. However, I believe the Minister of State, Northern Ireland Office. The nature of such inquests in Northern Ireland is sensitive for a series of political reasons, and I have no doubt that the procedure that we are considering will never be used there because it is not deemed politically expedient that that should happen. However, that raises in my mind precisely the question why, if that can be done in Northern Ireland, where I have no doubt that public interest immunity matters will play a difficult part, we are apparently still being asked to enact the power in the wider context here. I am afraid that, for me, the matter comes back to the words in the wretched clause 11(2)(a)(ii) about

which probably played a major role in the decision to introduce the provision in the first place.

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I may not have been in government over the past 12 years, but my experience of such legislation while I have been in opposition is that civil servants get very excited when it comes in, because they see it as a way of resolving all sorts of problems and getting them off hooks that they previously found difficult. They come along and put in a cornucopia of proposals, which then get transformed into something that completely overturns established principle and then, bit by bit, this House starts to ratchet them back.

I am grateful to the Secretary of State for entering into the spirit of this evening’s debate, which has proved to be very useful. My conclusion, which I invite my hon. Friends to consider, is that the provision simply is not necessary. Although there may be inconvenience, although problems will remain and although Secretaries of State may not enjoy coming to the House and, in extremis, having to announce that they are going down the inquiry route, the truth is that if the provision is not necessary, there are ways through the problem that do not do what I consider to be the genuine mischief, which is to undermine confidence in the coroner’s court system.

Mark Durkan (Foyle) (SDLP): Does the hon. and learned Gentleman recognise that not all of us are as confident as he is that the Bill will not be used in respect of what are called legacy cases in Northern Ireland? There are more than a couple of dozen inquests still outstanding from the troubles. We have received assurances and promises in the past from Ministers about what would or would not happen, only to see them set aside. Does he accept the point, which my hon. Friend the Member for Thurrock (Andrew Mackinlay) made earlier, that clause 11 will extend to Northern Ireland by virtue of clause 38, but that the mitigating effects—for instance, in clause 5(2) or in clause 30, in respect of the right of appeal—will not extend to Northern Ireland, so that we will potentially end up in an even worse situation than anywhere else?

Mr. Grieve: The hon. Gentleman makes some important points about other provisions in the Bill, which I was not going to look at. Nor can I give him a categorical assurance—I am not in a position to do so—about what might or might not happen, but I found the words of the Minister of State, Northern Ireland Office, very interesting, because I am sure that he made them advisedly. He made them in the knowledge that although the power would be going to his right hon. Friend the Secretary of State, there would clearly be a political imperative for him that they not be used, even if it might be convenient for them to be used, because, I suspect, of the disastrous political consequences of that happening.

I simply use that as an illustration of how there are other ways forward through the problem. For those reasons, and because I wish to bring my remarks to a close, as I know that many others wish to participate, we will—I hope with your leave, Mr. Deputy Speaker—seek to vote on amendment 2 and delete clause 11 in its totality.

Mr. Dismore: It is fair to say that the Government have been listening. The concessions that they have made are welcome, even if they have come somewhat late in the day and are not accompanied by explanatory
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notes or a human rights memorandum, which we would have liked. If it were necessary to have a special sort of secret inquest, the process advanced this evening would go a long way towards developing a model. It is not perfect, as has been said, but it could be improved. However, that prompts the question whether the provision is necessary in the first place. The Bar Council has fallen into error on that, because it has looked at the process, but not at whether the provision is necessary in the first place.

So far we have heard about only one case, the Azelle Rodney case, which, coincidentally and unhappily for the Government, occurred in my constituency and in which I have therefore taken a particular interest. Mr. Rodney was shot by the police in Hale lane, outside a pub where a lot of bemused clientele watched a hail of gunfire, and a few rounds going astray. It was rather surprising that the police were quite happy to talk to the local press about what had been happening—it was all in the Hendon Times and the Edgware and Mill Hill Times—but now things have clammed up for inquest purposes. My constituents are, not unnaturally, interested to find out what is going on given that somebody was shot on our doorstep.

7.15 pm

As I said in an intervention, however, the real question is whether what is proposed meets the requirements of article 2. The jury is important for common-law reasons—not for article 2 reasons—but the most fundamental issue is the right of the family to be involved and to know what is happening. That is potentially lacking from the process. The Royal British Legion put the matter quite clearly in evidence to the Joint Committee on Human Rights, by saying, on the point about foreign Governments:

That is basically the problem.

We are also getting bogged down with the need for certainty in the way in which the issue is approached. An inquest does not proceed on the basis of something being beyond all reasonable doubt; it is not a criminal trial. The reason for holding an inquest is to find out what happened, what the circumstances were and what lessons can be learned, as has been said. An inquest is not a criminal process. Indeed, the Bill makes it clear that any inquest should not make judgments on criminal or civil liability. That is not what it is about.

Andrew Mackinlay: Can my hon. Friend explain the need for clause 5(2), which, to avoid doubt, says:

With his human rights and lawyer’s background, can he explain to us why it is imperative to include that provision and how deficient it will be if it does not extend to Northern Ireland?

Mr. Dismore: My hon. Friend makes an important point. In fact, I have tabled some amendments to clause 5, so perhaps he might want to wait to hear those arguments
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later. Otherwise, I might set off on a train of thought that would not be relevant to the point under discussion.

The test for certification is still too broad. We are talking about not just intercept evidence but a wide range of intelligence material—and, indeed, other material altogether. There is the question of wider national security, but the real question is about relations with another country. The Azelle Rodney case, which is the only one that has been prayed in aid, did not concern relations with another country. The relations involved were those among the individual who was shot, his family, my constituents and Scotland Yard—pure and simple. We are told that the provision is about the protection of witnesses, yet the Bill includes a process for protecting witnesses in criminal trials that, if necessary, could easily be translated into a process for inquests. We are told also that the provision is about the prevention of crime, but again, similar processes in the Bill, in relation to the evidential basis for investigation, could have been transferred.

The question we need to ask is this: if the scheme had been in operation five or 10 years ago, would any of the controversial inquests that have taken place in the past five or 10 years not have been allowed to proceed, even though they were able to proceed under the existing regime perfectly satisfactorily, to produce a verdict one way or another and to give the families closure? My concern is that if the process had been in place in, for example, the de Menezes case or the Corporal Matty Hull case, it would have been all too easy for the Secretary of State to make a declaration or a certification and then we would have been none the wiser about what happened in either case.

Mr. Straw: My hon. Friend is arguing about what was in the Bill, not what the Government are now proposing. Given the experience of the de Menezes case, it seems to me that no judge faced with a similar set of circumstances will agree to dispensing with a jury, because plainly a satisfactory inquest was conducted with a jury in the de Menezes case. I would ask my hon. Friend to take account of what is now proposed, not what was in the Bill.

Mr. Dismore: My right hon. Friend is right about that, but there is still the question of how the judge may decide the case. We did not have that problem in the de Menezes case to start with. The problem is that certification can be challenged only by way of judicial review of whether the Secretary of State was right in his decision to certify something as being against relations with another country. The judicial review test is, of course, an awful lot higher than a simple appeal, which would have been an option. [ Interruption. ] The burden is more difficult for the people making a challenge. One option might be to say that the High Court judge could look at the certification under the normal appeal process and decide whether it was justified, without its having to satisfy the judicial review test, which would require a much higher standard.

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