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7.45 pm

Frank Dobson: That is all very well, but it would all be part of a process, which would begin, “Old reliable Jack, he wouldn’t start off this process unless there were a threat to national security or relations with a friendly state.” The judge will be part of a process that has been started off, and is unlikely to put a chock under the wheels at a later stage. It would be possible, but it is very unlikely.

Under the proposal, therefore, the state, in its manifestation as a Minister, could, in effect, order a secret inquest into a case in which agents of the state have killed someone or been in some way involved in the killing of a British citizen, or in which agents of another state have had similar involvement. That is not a sound position in which to place this country, especially as, to say the least, fresh in our minds is the acceptance by the previous Labour Prime Minister that Guantanamo Bay was apparently quite a decent place, or the involvement—to what extent we will never know—in extraordinary rendition, possibly involving the use of British soil, British citizens or people resident here. Let us suppose that someone had died while being tortured, or while being transferred following torture. I am not saying that that is what my good friend the Secretary of State intends, but it might happen, not necessarily under him but possibly under a successor.

I accept the need to protect witnesses, and possibly to protect sources, but that can be done already. When the secret inquests proposition was first put forward, a then Minister said to me, “There will be no chance of a de Menezes inquest unless we get this through.” Then, lo and behold, the proposition is dropped, and there is a de Menezes inquest. Evidence on counter-terrorism arrangements was put to that inquest, which was relatively open, and some of the material was read to the family. I understand that the fact that that evidence was presented was welcomed by the police officers who shot Mr. de Menezes, because they felt that they had the opportunity to put their side of what happened and the circumstance in which they found themselves. Therefore, the victims were not the only ones who got some satisfaction from that arrangement. Such matters might be embarrassing, but they are not likely to reveal genuine secrets that would be a threat to national security.

A secret inquest is no good for the relatives, no good for public confidence in the system at the moment, and would not be any good for learning lessons. What lesson could be learned, privately and secretly, from the secret aspect of an inquest involving extraordinary rendition? It might be, “Don’t creep to the United States.” Inquests are an essential part of our open society.

Mr. Dismore: Will my right hon. Friend give way?


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Frank Dobson: No, I am finishing.

What could be more important than open explanation of a death? On such standards, a secret inquest is no inquest at all.

Mr. Hogg: I shall be brief.

First, I recognise that the Secretary of State has come a long way from his position last year. I served on the Committee that considered the Counter-Terrorism Bill, and strongly opposed the powers that it gave to the Secretary of State of an exclusive jurisdiction as to when a jury-free inquest should be held. That was wholly objectionable, for the reasons that right hon. and hon. Members have expressed during the debate.

However, we must all ask ourselves one question: are there no circumstances in which one would hold that the presence of a jury was inimical to a full inquiry? I found that a difficult question, because I have always been, and I always am on the libertarian side of the argument. I hope that the House will allow me that. However, I served in the Foreign Office and the Home Office for seven years, and I am conscious from my time in government that there are matters—very few—that are not in the interests of the nation to be widely known. One needs to define those categories very strictly, and one needs to set them about with real constraints. I do not think that the Justice Secretary has gone far enough, but I believe that the process that he is putting in place is the right one, because he is allowing the judge—the coroner—to make the decision.

I do not accept that a High Court judge would simply rubber-stamp the original certificate. We might be able to improve the process—the hon. Member for Hendon (Mr. Dismore) made a valuable point about the special counsel assisting the court on that specific inquiry. It is a process that we shall consider tomorrow in the context of the anonymity of witnesses. I have tabled amendments.

We could raise the evidential bar so that a judge would have to be satisfied beyond reasonable doubt. That is the burden and standard of proof referred to by my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard). We could say that the Secretary of State should not issue the certificate unless he is satisfied beyond reasonable doubt. There are a number of things that we could do. The central question to which we must return, however, is whether there are some cases, albeit very few, in which it is not right for material to be made available to a jury.

Let me say this to my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve). If material is made available to a jury, even if it is provided in camera, the possibility must be contemplated that it will not be not confined to the jury, but will become public. At the end of the 1980s, I was an Under-Secretary of State at the Home Office. At that time, we had counter-terrorism legislation relating particularly to Northern Ireland. No doubt my hon. and learned Friend will remember the amendments that were tabled with the aim of preventing discovery of documents being made available to defence counsel and other lawyers.

I had charge of that Bill, and we were faced with the considerable difficulty of determining whether there were classes of document that should not be disclosed to defence counsel. We decided that there were such classes of document, and it got me into terrible trouble.
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What I said in Committee—it was true—was that at that stage there were lawyers who were too close to terrorist organisations. Shortly thereafter, a man was murdered, the solicitor Mr. Finucane, and I was blamed for it. It has always been a great source of distress to me that people thought that I was associated with his death, but that was said of me. The truth is, however, that we reached the conclusion—I still believe it could be the case—that there are classes of document that must be held very close, and what we are discussing is that sort of case.

I shall not vote against the Justice Secretary’s proposals, because I think that they are moving in the right direction. I think that they can be improved, and I hope that they will be improved in the other place, but I hope it will be recognised by the hon. Member for Cambridge (David Howarth) and my hon. and learned Friend the Member for Harborough (Mr. Garnier) that although I am always on the libertarian side of an argument, on this issue I shall not be with them.

Let me make one further apology, which I have mentioned to you, Mr. Deputy Speaker. I am afraid that I may not be present for the winding-up speeches. However, I shall be here to abstain in person.

David Howarth: I thank the right hon. and learned Gentleman for at least being here now. The problem with his argument is clear when we examine amendment 97, especially what it asks judges to do. My experience of High Court judges is that they apply the words of the statute as given to them. If they apply the words of what would become clause 11(6)(b)—thinking in the way in which the right hon. and learned Gentleman thinks—they will always conclude that it is necessary to hold the inquest without a jury. What the judge is asked to do is satisfy himself, or herself, that

If it is the case that juries are leaky in the way that the right hon. and learned Gentleman contemplates, surely that will always be the case.

Mr. Hogg: That is a fair point. My amendment 51—this makes me very reluctant to vote against the Secretary of State’s amendment—is designed to secure a certification process which would enable the coroner to make the final decision.

I am prepared to accept that the hon. Gentleman has made a good drafting point, but, while I recognise that drafting is the business of Parliament, let us stand back from the drafting for a moment, and ask where we stand on principle. All I am saying is that I believe that there is a small category of cases that are properly addressed by the kind of mechanism that the Secretary of State is introducing. I think that it can be improved in the way that I have suggested, and perhaps it will be improved in the other place, but because that category exists, I shall not vote against what the Secretary of State has in mind.

Andrew Mackinlay: I rise primarily with the aim of interesting the House in my amendment. It would strike out schedule 9, which effectively extends clause 7 to Northern Ireland. I also want to express some dismay, however. Clause 11, which is preoccupying the House this evening, is based on exceptional circumstances
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relating to national security, but seems—I am open to correction on this—not to extend to the kingdom of Scotland. It is as if, somehow, national security considerations such as the disclosure of documents and the involvement of relatives simply will not arise in Arbroath or Dunfermline.

Mr. Straw: Scots law has always been different. It was different before devolution, and it is different now. They do not have inquests in Scotland, so the point is nugatory. In any event, if the people of Scotland want to change the law it is a matter for their Scottish Parliament, under the Scotland Act.

Andrew Mackinlay: I did not need the Lord Chancellor to explain the constitutional arrangements to me. I fully understand that which is devolved to the Parliament in Scotland; indeed, I support it. I am merely pointing out how ludicrous it is that such massive considerations should apply in England and Wales—I shall come to Northern Ireland in a moment—while there is no comparable anxiety in relation to Scotland. Of course I understand that the whole regime is different there, but this Parliament is not saying “We need to ensure that there is protection of information in relation to what might be a heavily disputed death in Scotland”.

We acknowledge that, under the devolution legislation, matters of this kind are a competence for the Parliament in Scotland, and I have made clear that I support that, but why, in that case, are we legislating in relation to Northern Ireland? Schedule 9 amends an old Stormont Act, passed by the Northern Ireland House of Commons. That Act needs to be updated, but not in this sloppy way.

Earlier, from a sedentary position, the Lord Chancellor told me another thing that I already knew: that there were special arrangements for Northern Ireland, and that we must do things differently. We do not have to do things in a sloppy fashion, however, which is what will happen if we incorporate schedule 9 in this legislation. There needs to be a root-and-branch review, and a bringing up to date, of the coroners legislation in Northern Ireland, and I think that the primary vehicle for that should be the Northern Ireland Assembly. However, if there are overriding considerations that should be ring-fenced or a matter for the United Kingdom Parliament for reasons of national security, there should be a separate instrument, or Bill, for that purpose.

I hope that I made clear to the House earlier my charge that this is a sloppy way of legislating. In support of my case, I cite clause 5(2), which states that in order to avoid any doubt, an inquest must ascertain the full circumstances of a death. That provision is intended to prevent the Government from getting into trouble in connection with their commitments under the European convention. However, it does not extend to Northern Ireland, which, in my view, demonstrates that we are making flawed legislation which was ill thought out and not properly examined. That is why I want to interest the House in supporting my amendment, or comparable amendments, proposing the deletion of schedule 9.

This is not just my brainwave. I rely on the Northern Ireland Human Rights Commission, a statutory body set up by the House of Commons whose functions include a duty to review


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The NIHRC has made it clear that article 2 is hit by the effect of this Bill.

8 pm

I am not suggesting that the statutory NIHRC should tell us how we should legislate. It has not got a right of veto, and it is not a legislative body, but it has a duty to advise and a right to be heard. What is most serious is that it alleges that it has not been consulted about the Bill. It states:

that extend to England and Wales.

one of which I have referred to already, are

which is in clause 5, and

to Northern Ireland.

I have twice urged the Government to reflect again. For one such intervention, the Under-Secretary of State for Justice, the hon. Member for Lewisham, East (Bridget Prentice), and the Lord Chancellor were present, and there was some confusion between them as to the extent of the legislation in respect of Northern Ireland. They are its architects so they should have been on the ball, but they were not certain—I do not want to rub it in, but they were demonstrably not fully apprised of the impact of their legislation. The Lord Chancellor kindly wrote to me afterwards reaffirming the line, which he has referred to earlier, that the Secretary of State for Northern Ireland and his Minister of State say they will not apply this legislation to what they call the legacy cases—which, as we know, involve a sensitive issue that affects families, loved ones and the supporters of various traditions. As they said they would not use the powers, that begs this question: why not put it in the Bill that they will not exercise those powers? This raises another issue, too. If they will not apply the legislation to those legacy cases, why is Northern Ireland not left out? The matter could be left to be treated as a normal domestic legislative issue by the Northern Ireland Assembly. That principle applies for Scotland. The only case for extending the legislation to Northern Ireland is so that it can be exploited in order to deal with national security issues, and the Government should say so.


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Mark Durkan: Does my hon. Friend not see some contradiction in the fact that only recently the House passed a Northern Ireland Bill providing for the devolution of policing and justice to Northern Ireland, and yet we will have a situation where a devolved Justice Minister, who will have the coroners courts and so forth under their responsibility, will be in the invidious position of being completely bypassed by a Secretary of State who issues a certificate that removes a jury or instructs that part of an inquest be held in absolute secrecy? That Justice Minister and devolved Assembly will then say, “This has absolutely nothing to do with us. We are just the devolved authority and Minister.” Does that not test the credibility of devolution in a most sensitive manner?

Andrew Mackinlay: Of course, I wholeheartedly agree. In terms of the legislation that was so recently passed in this place, I remember expressing concern to a rather empty House about what we were doing. I said it was ill thought out and it had not been adequately dealt with. We had even less time to deal with that Bill than we have had this evening, but we passed it. It seems to me that Members on the Treasury Bench do not understand what they are doing in relation to the constitution. If we devolve, it means that we have devolved and we should not be trying to claw back power.

In any event, we have had no explanation from the Secretary of State for Northern Ireland. Everything has been second hand, by way of a letter from the Lord Chancellor and gossip between Ministers sitting on the Front Bench when they have been challenged. This is not the way to make legislation and I urge hon. Members to join me, or others who succeed in calling a Division, in striking out the provisions that apply to Northern Ireland so that we can make better law instead. If necessary, we could pass precision law, which is targeted on national security issues, if they exist, but which leaves the good people and Assembly Members of Northern Ireland with the responsibility to deal with their coroners courts as they think fit.

Mr. Gray: I rise to make a brief contribution, particularly on the issue of military inquests, in which I have a particular interest. I am a Wiltshire Member and it is the Wiltshire coroner who currently carries out the vast bulk of military inquests—although previously it was the Oxford coroner—because of the geographical peculiarity that our casualties from Afghanistan and Iraq are repatriated through RAF Lyneham in my constituency.

I raised the matter of military inquests in Committee. The Under-Secretary immediately responded to my concerns about whether they would be subject to the Bill’s provisions by saying that most military inquests already have no jury. She is to a certain degree correct, but she is also incorrect in that the Coroners Act 1988 stipulates that the coroner may ask for a jury in military inquests, although they only occasionally do so—I believe a case is at present being considered in the Court of Appeal. Therefore, she was not quite right that all military inquests have no jury, although many of them do not.


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