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Mr. Straw: My hon. Friend is arguing, in a slightly convoluted way, against going down the inquiry route proposed by the Opposition. The Bill, as amended by the amendments before the House, would provide for
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the court to make such decisions without a judicial review, which would certainly present a higher bar for the families. The Bill will enable the families to go before a High Court judge who is considering whether to grant a non-jury inquest on the basis of the trigger of the certificate. Because it will be for the judge, not the Secretary of State, to decide, it will be an issue not of judicial review principles but of the merits of the case. The bar would therefore be set much lower for the family than it would be under what my hon. Friend seems to be arguing for, or under what the Opposition are arguing for.

Mr. Dismore: I am not arguing for the Opposition’s case; I am arguing for my own case. I think that my right hon. Friend has misunderstood my point. The decision that is challengeable only by judicial review is the decision to put the case into the special process in the first place. Once it is in the special process, other appeal arrangements might well apply. However, the decision to certify it as being required to follow this process—and therefore to run the risk of all the other consequences for the families—is subject to the judicial review test. If my right hon. Friend were to say that the threshold that the families had to meet if they wanted to challenge the decision to certify in the first place involved the normal appeal route, that would be different. However, that is not what is proposed in the amendments tabled by my right hon. Friend. That is a key issue.

We can look at this question from a slightly different angle—in the context of the Binyam Mohamed case. The judges in that case would not go behind the Foreign Secretary’s certificate over the material that came from the United States, even though they were clearly not happy with what they were being asked to do, because of the security considerations as certified.

Mr. Straw: There is no need for the families judicially to review the certificate of the Secretary of State, because they can go one better than that. They can have whatever the Secretary of State is seeking to request as a result of his or her certificate examined on its merits by the court. They could not do that under judicial review.

Mr. Dismore: I am sorry—I do not want to get into a legal argument with my right hon. Friend. I am happy to engage with him, but it might be a sterile debate, because I think that he is looking at this through the wrong end of the telescope. I fully accept that, once a case is in the special process, there are other options for the family to challenge various decisions that the High Court judge might make, through the normal appeal process—the Court of Appeal and so on. However, that raises the question of why the case is in the special process in the first place. The family cannot go behind the decision to certify it on grounds of national security or relations with a foreign country except by judicial review. The problem lies in the original decision to put the case into the process. If the family wants an ordinary, bog-standard inquest, the only way they can challenge that decision is through the judicial review process. That illustrates the difference between my right hon. Friend and me on this issue.

Rob Marris: The term “judicial review” is being tossed around the Chamber here, there and everywhere. Does my hon. Friend agree that, for some families, there will
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be cost implications? It is all very well for the Government to say, “You can have a judicial review” or “You can challenge this in court”, but there will be cost implications for the families. It could be very expensive for them.

Mr. Dismore: My hon. Friend is right. There is a little twist to the cost issue, and that is the availability of legal aid for representation at the inquest, although that subject has not been selected for debate. If someone wanted to apply for legal aid for a judicial review case, they might well have to go to the Legal Services Commission and ask for special permission. Such a request would ultimately come back to the Ministry of Justice to decide whether legal aid should be granted for such a special kind of case. So, in the end, the Secretary of State or one of his Ministers would make the decision about whether legal aid should be granted to challenge a decision by the Secretary of State in the courts, by way of a judicial review, on the original certification. That seems a little unfair.

Moving on to the new process, the real issue is the involvement of the bereaved families. If we accept the proposed process, one issue that arises is the representation of those families if they are to be excluded from hearing part of the evidence. Would the judge coroner—for want of a better term—be able to appoint a special advocate to represent them? We know that the judge or coroner can appoint counsel to the inquest; that has always been the case. However, the purpose of that advocate will be to serve the inquest, rather than an individual party. In a complicated case, there could be half a dozen different parties, all fully represented by lawyers, yet the family might not be represented. One solution could be to have a special advocate process, but such a process would go beyond what is presently permitted by the system of appointing a counsel to the inquest. There should be a special advocate process in the Bill, to ensure that the article 2 requirement that the families be properly involved is met.

Mr. Hogg: There is considerable merit in what the hon. Gentleman is saying, but what it amounts to is that, if the process were sufficiently safeguarded, he would accept that there were circumstances in which there could be a jury-free inquest.

Mr. Dismore: As I have said, article 2 does not require a jury. The only basis on which one could argue that a jury is required is through the long traditions of the common law as it relates to the coronial process. We should not get too hung up on the jury issue. We should be much more worried by the fact that the key requirement of article 2 is the involvement of the family. I think that families would be a lot happier if there were juries in these cases, and the new process provides for a jury.

However, my main argument with the Government is the potential for the exclusion of the family from hearing certain aspects of the evidence. The existing system provides ways round that problem. My right hon. Friend has already mentioned gisting, and we know that the coroner in the Azelle Rodney case looked at the possibility of using that process. We are all getting hung up on that one case, but there is an old saying that hard cases make bad law. The Rodney case is a very hard case, and I think that it could result in our making very bad law indeed. That case did not go to appeal; all we had was
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the judgment of the coroner—in fact, I think it was the deputy coroner—of Hornsey, Coroner Walker, who was given the gist of certain redacted material but not given the rest. There was no question of his challenging that decision.

In the Northern Ireland case of McCaughey and Grew to which I referred, Mr. Justice Weatherup had to decide on that exact point. He stated very simply that the coroner was entitled to see the redacted material, and to decide whether it was of relevance to the inquest and whether it should be put before the inquest. That decision is then subject to judicial review by either side. The Government can challenge the coroner, but so can the family, depending on the ruling. That is not the only option. There is also the public interest immunity certificate process, which worked perfectly adequately in the de Menezes case, and countless others in Northern Ireland and elsewhere.

The eighth report of the Joint Committee on Human Rights deals with the Bill. Paragraph 1.38 sets out a whole series of options available to the coroner. It states that the law

There is a whole series of possibilities, and they have been used in many highly difficult, contentious, sensitive inquests, including the de Menezes case, the friendly fire cases and the inquests into the Nimrod deaths. It has been possible to deal with all those under the existing system.

My main concern is that we are constructing a huge sledgehammer to crack a very small nut: one case—the Azelle Rodney case—which was probably wrongly decided by the coroner in the first place and not subject to testing through the appeal courts. If it had been tested in that way, the appeal courts might well have come up with a different ruling on how it should be processed, as we saw in the Northern Ireland case.

Gisting might well be the answer to the problem. If the gist of the material were made available to a coroner’s court, whether there was a jury or not, no state secrets would be given away about how the material had been collected. As we do not need to have a decision beyond all reasonable doubt, that might well be satisfactory for the purposes of article 2.

Let me summarise my main argument. I am grateful to the Secretary of State for what he has done. He has moved a mountain in changing his proposals, but that still raises the question why we have to go through the process in the first place.

7.30 pm

Mr. Michael Howard (Folkestone and Hythe) (Con): It is not my primary intention to address the main question that has occupied the House so far in the course of this debate. That is not because I do not sympathise with the arguments put forward by my Front-Bench colleagues—I do, but they are able to
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deploy them effectively, as my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) has demonstrated, and I feel no need to add to them.

I would make two exceptions to that self-denying ordinance, Mr. Deputy Speaker. The first arises out of an answer that the Lord Chancellor gave—I was very surprised to hear it—to my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), when they were engaged in debating the meaning of the phrase, “the court is satisfied”. My right hon. and learned Friend sought to place directly into the Bill the burden of proof required for the court to be satisfied, and the Lord Chancellor, to my very considerable surprise, said that it should be a “matter for the court”. Surely that should be a matter for Parliament; it is for Parliament to lay down the burden of proof, particularly on an issue as important as this one. It would then be for the court to decide whether that burden of proof has been satisfied. This point was reinforced by an answer the Lord Chancellor gave to the hon. Member for Hendon (Mr. Dismore). The main thrust of the Lord Chancellor’s answer in that argument was that he was “lowering the bar” for the families, but how can we know whether the bar is being lowered if we do not know what burden of proof has to be met? There seemed to be a complete lack of consistency or, if I may say so, even logic, in that part of the Lord Chancellor’s argument.

Rob Marris rose—

Mr. Edward Garnier (Harborough) (Con) rose—

Mr. Howard: I give way to my hon. and learned Friend first.

Mr. Garnier: I do not wish to be picky, but I think it is probably the standard of proof rather than the burden of proof that we are concerned with.

Mr. Howard: My hon. and learned Friend is absolutely right; I entirely and happily accept his correction. Perhaps that was the same point that the hon. Member for Wolverhampton, South-West (Rob Marris) wanted to make. No.

Rob Marris: Does the right hon. and learned Gentleman agree that the phrasing in amendment 94, where it says

is, in fact, a subjective test? If it said “beyond a reasonable doubt” or “reasonably satisfied”, it would make it an objective test, which would make it harder. A judge looking at the certification could say, “Well the Secretary of State is satisfied—goodness knows why he was, but he was genuinely satisfied.”

Mr. Howard: Whatever the answer to that conundrum, it seems to me that it should be specified on the face of the Bill.

The second exception to my self-denying ordinance arises, I am afraid to say, out of something said by my hon. and learned Friend the Member for Beaconsfield during the course of his speech—or, at least, something that I thought I heard him say, but I was so surprised by what he said that I would be perfectly happy to be told that I misheard it. What he seemed to suggest, as I
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understood it, in relation to certain parts of the Bill, was that the provenance is to be ascribed to civil servants. I do not believe that we should blame civil servants for the provenance of legislation of this kind; it is Ministers who are responsible for the provisions of this Bill, and it is Ministers who should be held accountable in our debates in this Chamber.

Mr. Grieve: I am grateful to my right hon. and learned Friend. Perhaps I did not choose my words as well as I should have, but my experience—having had some briefing on this matter last summer—was that there was a considerable amount of civil service involvement in promoting the need for change. As my right hon. and learned Friend will know, it is also the duty of Ministers to look at proposals that come their way—and the buck stops with them, nowhere else, and I would not wish it to be suggested otherwise.

Mr. Howard: I am grateful to my hon. and learned Friend.

I am afraid that much of the rest of what I have to say this evening will be a repeat of what I said on Second Reading of the Counter-Terrorism Bill on 10 June last year, as that Bill contained similar provisions to those I now wish to address, particularly those dealing with the proposed admissibility of intercept evidence at coroners’ inquests from which the jury has been excluded.

Now I have for quite a long time been in favour in principle of the proposition that intercept evidence should be admissible in proceedings before our courts, particularly our criminal courts. I set out my reasons in the debate on the Gracious Address in November 2007. I was delighted when, after the deliberations of the Chilcot committee, the Government finally accepted in principle that the case for admitting such evidence had been made.

However, the Chilcot committee proposed a very rigorous series of safeguards, which it said had to be put in place before intercept evidence could be admitted in such proceedings without giving rise to significant risks to national security—and the Government accepted that when they accepted the Chilcot committee’s recommendations. I recognise the need for those safeguards—a recognition reinforced by my role as a member of the advisory group of Privy Councillors appointed by the Home Secretary to monitor the implementation of the Government’s decision and the Chilcot committee’s recommendations on this subject.

Of course, what I say today, as with what I said on the last occasion I addressed this issue, represents my views and mine alone—and I do not purport to speak on behalf of the committee. It is fair to say, however, that the painstaking work of the officials charged with implementing those recommendations—I come here to praise officials rather than to criticise them—has not been at all easy. There are a number of issues, the resolution of which is essential if the work is to proceed to a successful conclusion, but they have not yet been resolved. They must be resolved, but the Bill’s provisions will make intercept evidence admissible in some inquests without showing any recognition whatever of the need for rigorous safeguards or of the need to deal with those issues. As far as the Bill is concerned, those issues might just as well not exist, but I cannot believe that that is either right or what the Government really intend.

I thus pose this question, and I hope that either the Lord Chancellor or the Under-Secretary will deal with
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it in the course of their replies. Would it not be far better and far more sensible to postpone this particular provision until the officials working on the Chilcot committee’s recommendations have completed their work, the Government have decided whether intercept evidence can be admitted in criminal trials and, if so, under what conditions, and a regime can be established and incorporated into our law to deal with the admissibility of intercept evidence as a whole rather than in the piecemeal fashion that this Bill provides for? I hope that I will receive an answer to that question.

Frank Dobson (Holborn and St. Pancras) (Lab): Ever since the underground fire in King’s Cross station in my constituency in the 1980s, I have been pressing—first as an Opposition Member, then as a member of the Government and now as a Government Back Bencher—for reform of the coroners’ system. Generally speaking, it is unsatisfactory, so I welcome most of the provisions in the Bill. It seems to me, however, that the coroner provisions are ruined by the proposition to hold what will effectively be secret inquests.

I do not believe that my right hon. and hon. Friends on the Front Bench are wicked or sinister, and I recognise that they have to balance security and individual liberty, but I think that they are getting the balance wrong. I say that particularly at this time when they have quite rightly talked about rebalancing the criminal justice system in favour of victims and relatives. The secret inquests proposal is a rebalancing in the wrong direction, because inquests are all about victims and their relatives—they are the reason for the inquest system. If someone has been done to death, the truth needs to be brought out, victims’ relatives and friends are entitled to know what happened, the public are entitled to have confidence in our system, and lessons are supposed to be learned. The proposition is that a Minister would certify that a normal inquest could be prejudicial to national security, to relations with another state—that is the bizarre one—to the prevention and detection of crime, and to the prevention of threats to jurors or witnesses. However, even under the amended system—I welcome the changes, compared with the original proposal—the Minister will go to a judge, and I do not know whether a single case can be quoted in which a judge has not accepted the Executive’s statement that national security was at risk.

Mr. Hogg: Does the right hon. Gentleman accept that one of the most encouraging developments in jurisprudence over the past 20 years has been a willingness on the part of the High Court—some people say that it goes too far—to cut down the Executive? Time and again, judges in the administrative court in particular have held that Secretaries of State have acted ultra vires or been plainly wrong on the merits.

Frank Dobson: More narrowly, I was challenging any Member of the House to identify a case in which a judge has decided to set aside an assertion by a member of the Government that national security was at stake. I do not think that there are any such examples.

Mr. Straw rose—

Frank Dobson: My right hon. Friend may have come up with one.

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Mr. Straw: My point is a different one: as I said in answer to my hon. Friend the Member for Hendon (Mr. Dismore), the judge does not have to set aside the original certificate by the Secretary of State that national security, serious crime or the other criteria have kicked in, to decide that a non-jury inquest is not necessary to meet the conditions under the Bill. The amendment is clear that the judge can decide that there are adequate precautions to protect the relevant material, with a jury. That will be the first port of call.

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