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What we are considering today is a special case. I welcome the fact that the Secretary of State has altered the provisions considerably since their introduction. I understand his point that incredibly few cases would
fall under the provisions of clause 11—he anticipates one or two cases going through the designated procedures and going to the High Court. However, he is asking us to put on the statute book laws that a Secretary of State—not him, but someone at some stage in the dim and distant future—may use not for the laudable aims he has described, but for the much less honourable purpose of avoiding Government embarrassment and the like.
In order to illustrate my point, it might be helpful if I focus on one recent inquest carried out by the excellent Wiltshire coroner David Masters. Although he has retired as a coroner, I am very glad he agreed to carry on as a particular specialist in military inquests. He will continue to hear some of those inquests as a deputy coroner.
The inquest I have in mind is that into the tragic loss of Hercules XV179, which was on its way from Baghdad into northern Iraq, flying at an extraordinarily low level. It went down with 10 soldiers and airmen on board, all of whom were lost. Many of them were my constituents, or were at least based in my constituency. There are all sorts of peculiarities about XV179. The plane was flying at remarkably low level and it was on special forces duties. That has been made plain but a number of things about the special forces duties in the evidence given to David Masters were redacted, and perfectly happily so. Indeed, there were all sorts of secret things we never got to know about because they were secret and that is fine.
Other peculiarities of the case included the fact that David Masters discovered that the Americans knew there was enemy activity in the area where XV179 was on that day, but they failed to pass that on to the British, so the pilot did not know that. Curiously, the Americans refused to come to the Wiltshire inquest and to give evidence to it, because they felt it might be embarrassing to them as they had failed to pass that intelligence on. It is clear that there had been a breakdown in intelligence between the two countries.
As I said, there were a variety of very peculiar things with regard to Hercules XV179, so David Masters looked into them and he came to a perfectly satisfactory conclusion. He said that it was shot down by enemy fire—probably small arms fire; possibly a rocket-propelled grenade—and this was a tragic loss. The case had one other element and he looked into that too, concluding that had the plane been fitted with suppressant foam in the wing tanks, as all the Australian and American Hercules planes are, there is a chance that the tragedy—it is no certainty—might not have occurred. He was rather critical of the fact that the Government had not fitted the foam in the wing tanks, and he gave the Government quite a hard time over it. Of course, the Oxford coroner had recorded something similar with regard to the Nimrod case and two or three other military inquests of that kind.
Although the Government say that the Bill’s provisions are not designed in any shape, size or form to interfere with the coronial process, which worked extraordinarily well in the case of flight XV179, the circumstances of that case fit, without question, into the definitions as laid down in the Bill. It is perfectly possible that some Secretary of State in the future, seeking to avoid embarrassment for the Government over suppressant foam, to avoid upsetting the Americans over the failure of intelligence or to keep secret—perfectly properly—the
fact that it was a special forces flight, might use any of those excuses to say to the High Court, “These are important matters and it is important that we should not hear this inquest in public, because it is against the national interest.”
Mr. Straw: I understand the importance of the military inquests, particularly the case to which the hon. Gentleman refers—I happen to have known one of the crew who was on that ill-fated flight. I can honestly say to him that I can provide him with almost complete reassurance because, as he will know, there has never been a jury involved in a military inquest. There have been more than 200 military inquests and the issue of juries has never arisen. It is hard to see in what circumstances it would arise.
Mr. Gray: That is, of course, the case, and I made precisely that point a moment ago. The Lord Chancellor is possibly not quite right, because there have been juries in one or two such cases in the past.
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice) indicated dissent.
Mr. Gray: I am happy to accept the correction on the matter. The point I made a moment ago is that I know that there were no juries involved, but the inquests are not secret. There is nothing private about the inquests at all—the families and the public are present. As the local Member of Parliament, I was at the inquiry—it was a public inquest and inquiry.
Mr. Gray: If the hon. Gentleman will allow me, I shall continue for the moment. The risk involved is that the Bill, as drafted, may allow a subsequent Secretary of State to say, “These are delicate matters that might affect the security of the nation and might embarrass our great friends, the Americans, so for those reasons I request not only that the case should be heard with no jury but that it should be heard in secret.”
Mr. Straw: These powers explicitly arise only where otherwise a jury inquest is required; they cannot be brought into force, as the Bill makes absolutely clear, unless—many Opposition Members are nodding—otherwise a jury is required.
Mr. Gray: I am surrounded by Queen’s counsel and learned—I am probably the only non-learned gentleman in the House this afternoon. [Interruption.] The right hon. Member for Holborn and St. Pancras (Frank Dobson) is equally as unlearned as I am—I beg his pardon.
Am I not right in thinking that the Coroners Act 1988 itself stipulates that the coroner in military inquests may ask for a jury? That tends not to be the case but it is perfectly possible that some military inquests would have juries and therefore would become subject to the terms of this legislation. I am ready to be corrected by the very learned Lord Chancellor if my understanding is wrong—it is certainly also the understanding of INQUEST, which has raised the point with me. It says that it is perfectly possible to imagine that military inquests would be caught up by these provisions and
that therefore at some future point embarrassing military inquests of the kind that I have described would be subject to secret hearings. I would be happy to accept the Lord Chancellor’s assurances, but perhaps he could get some advice from those in the box on this. It might be that I am barking up the wrong tree and I would be happy to accept that I am. All of our advisers, including plenty of QCs in INQUEST and in the other organisations briefing us, advise us that there is at least a risk that that might be the case. For that reason alone, I shall join my hon. Friends in supporting amendment 2, which seeks to strike clause 11 out entirely.
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John McDonnell: A number of hon. Members wish to speak and there is a lot of business to be got through, so I shall attempt my own exercise in gisting.
The key issue involved here is that of public confidence, as other hon. Members have said. I was involved in the Ricky Reel case, which some may recall—my right hon. Friend the Lord Chancellor certainly will, because he was exceptionally helpful. A constituent of mine went missing following a racial attack and was subsequently found dead. It was a most distressing case in which the most critical issue for us was to ensure that the interests of the family were protected, that they gained as much information as possible and in the end at least felt that they had had a fair hearing. I also met the de Menezes family and their lawyers, and discussed some of the issues that arose out of that case.
The concern that a number of us have is that although the Bill contains elements relating to coroners that we wholeheartedly support, because they are a significant move forward, on this clause 11 issue we share the view of the Royal British Legion. My hon. Friend the Member for Hendon (Mr. Dismore) read a quote from it, but he failed to include the first sentence. The Royal British Legion stated:
“As long as Clause 11 remains in the Bill, we regret it may not be possible to dislodge the perception that crucial evidence will be heard behind closed doors.”
That is the key issue, because the provision is a step too far in terms of public confidence. It is regrettable because the system has evolved in a way that has adapted to the needs of national security and other issues—the de Menezes case certainly exemplifies that—without undermining overall public confidence. This measure would be a step too far and it would undermine public confidence.
As my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson) has said, the whole panoply of methods was used in the de Menezes case. The High Court judge who was appointed to undertake the case was able to judge on public interest immunity applications, and he did so. However, he did so in such as way as to enable the process of evolution throughout that hearing, so that where he ruled in respect of PII that certain information was not to be provided, he also ruled that some information could be provided to the legal teams on the strict understanding of confidentiality and security. In that way, at least some element of confidence was maintained that the family was having
access to that information. My key point is that their own lawyers, whom they had appointed, were able to see that information.
I can understand why people are arguing for the introduction of special advocates, but they have not had the public confidence that is instilled when one appoints one’s own lawyer. I was involved in the early Special Immigration Appeals Commission cases when the Sikh gentlemen were arrested, and the key issue was that the special advocate was not able to communicate the full range of information to the person they were meant to be representing. At least in the de Menezes case there was a line of communication and where there was a common agreement that only certain information was provided, the idea of gisting was brought forward and summaries were provided to the family, and in that case confidence was maintained.
I am concerned that the processes that the Secretary of State has brought forward to improve on the original proposals certainly do not go far enough and do not tip the balance in maintaining public confidence. In parliamentary procedural terms there is a phenomenon called Strawism, whereby one produces a Bill that throws in the entire kitchen sink and is so outrageous that the House recoils from it, and one then introduces a series of amendments and Members skip through the Lobby happily, thinking that they have obtained major victories and amendments. This is not an example of Strawism in extremis, but it is close to it. I do not think that the Bill has gone far enough in protecting the interests of the families—those who have lost loved ones—and in maintaining public confidence. On that basis, clause 11 needs to be withdrawn, and that is why I shall support amendment 2.
Mr. Llwyd: We have heard something very important from the hon. Member for Hayes and Harlington (John McDonnell). As usual, he made his case strongly, but he also introduced a new term. We have heard of Thatcherism and Blairism: we now have Strawism. No doubt we will look back with fondness on this occasion on which it was first used.
I am probably the only hon. Member here who has acted as a coroner. In my early days I was an assistant coroner. I was taught always to empanel a jury if the case was complicated or there was any possible involvement of the state or a public body, whether by negligence or act of omission or commission. My senior partner then—he is now the main coroner for the district—always believed that we had to shed the maximum amount of light on the evidence.
The whole purpose of the coronial system is to discover what happened in relation to the death. Specifically, if there is the possibility of an act of omission or commission by an authority—be it the police or anyone else—it is vital that that happen. Over the years I have also acted as an advocate at inquests many times. After hearing all the evidence, the family leave the court able to reach the conclusion of the grieving process. In many cases, the grieving process remains open until the coroner’s verdict or the jury’s verdict has been delivered and the family knows, having heard all the evidence, what happened. To those of us who have not lost close family or other loved ones and who have not been through the process, it may sound difficult to believe, but I can assure the House that hearing all the evidence does very much assist in the grieving process.
The right hon. Member for Holborn and St. Pancras (Frank Dobson) mentioned the issue of confidence, and that is the main building block of the coronial system. There are some good ideas in the Bill. Indeed, there are good and bad coroners, as there are good and bad in every walk of life. We must weed out the bad ones.
The right hon. Gentleman said that PII certificates might not work because the judge might not grant them. That decision would be appealable, so it is unlikely that anyone would withdraw from the proceedings simply on that basis.
Some 10 or 12 years ago, there was an arson campaign in Wales. Some of the individuals were caught and charged, and appeared before Caernarvon Crown court in north-west Wales. It was a unique case in that MI5 was heavily involved in tracking those guys down. MI5’s evidence was redacted, gisted and subject to PII certificates, but the jury followed it adequately. Nobody—prosecutor or defence counsel—complained about the fairness of the proceedings. I suggest that that is one reason why we could look at the panoply of existing ways we could achieve justice. At that time, there was a fragile peace in Northern Ireland, and the identity of the MI5 agents had to be protected at all costs, because not to do so might have had fatal results. It worked, and nobody has ever complained about how that trial was conducted. Justice was achieved in that case.
I am very concerned about clause 11(2), which refers to the relationship between the United Kingdom and another country. I mentioned in interventions that the deputy coroner for Oxfordshire has made many loud complaints about the inability of the US air force to deliver the videos of the fighter pilots unfortunately mistaking UK troops and dispatching them. The coroner was brave in raising those concerns in public, but I suspect that he did so because he was unable to get anywhere in private with the US authorities. His only avenue then was to make the issue public. I guess that his actions would be caught by this provision, and it would be enough for any Secretary of State to apply to minimise any embarrassment for the US.
I am not casting aspersions on Ministers—it is not part of my function to do that—but clause 11(2) covers the “relationship” between the UK and another country. Embarrassing that other country would undermine the relationship, so that would be the effect of the wording, unless Ministers can tell me otherwise.
Along with the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), I am a member of the Criminal Bar Association, and it was refreshing to hear the Secretary of State praying in aid that organisation. Far be it from me to suggest that he was desperate for support, but he certainly cited its opinions a lot, and fair play to him. We are fortunate to have an independent judiciary, and we are extremely fortunate that members of the High Court bench are prepared to tell the Government when they go wrong. That is refreshing, and it is how a democracy should work, with the separation of powers.
If I have understood the process correctly, the Secretary of State will issue a certificate and the High Court judge will decide whether it should proceed. I suggest once again to the Secretary of State that the PII certificates work day in and day out in our courts—I mentioned the case at the Crown court in Caernarvon. Alongside that
we have that other process we have heard about today of gisting—a wonderful word. It has been in the public domain before, but it has been very much in evidence today. Why not use that process too? The Jean Charles de Menezes inquest employed all those techniques, and it seemed to work all right. Have we not learned anything from that experience that can inform our approach? If we employ all the safeguards—the judge will undoubtedly have in mind the need to ensure a fair trial, that there is equality of arms and that both sides of any dispute are heard fully and properly—that inquest proves that we do not need this legislation.
My greatest fear—I do not know whether it will apply to military inquests—is that there is no doubt that families will feel short-changed if they do not have the right, and I use that word advisedly, to have a jury trial in the coroner’s court when there are these complicating features. Yes, that trial should apply all the safeguards because, as was said earlier, of course juries can leak.
I would not want anybody’s life to be imperilled by national security leaks—of course I would not—but as a lawyer I do not see the need for this provision, given that we have the existing provisions and just need somebody to pull them together. It is not beyond the wit of a High Court judge to do that easily and comfortably and to ensure fairness. A High Court judge has been appointed because he or she is probably at the top of the legal tree anyway—they are not there for any other reason—and they are there because they have very special qualities. Given that they have very special qualities, surely they could ensure that we could avoid using this particular provision.
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My biggest problem is that people will feel short-changed, hard done by or whatever phrase we want to use. Families will not feel that the matter has been heard properly, and I think that that is the worst possible thing that could happen. Given the reason why coroners’ courts are convened and given the fact that families deserve to be told the truth, the whole truth and nothing but the truth, I believe that it is those families’ common law right, as mentioned by the hon. Member for Hendon (Mr. Dismore), to be entitled to have a jury hear their case.
The hon. Member for Hendon, who is Chair of the Joint Committee on Human Rights, referred to several things that the Committee had suggested in its concluding paragraphs—no fewer than nine, or maybe 11, suggestions that would add to the panoply of provisions that we already have. I think that this part of the Bill is flawed. I said that on Second Reading. I am as concerned now as I was then, and although I acknowledge, with great respect, that the Secretary of State and his team have moved in a certain direction, I think that the other place will make them move even further.
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