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Mr. Neil Gerrard (Walthamstow) (Lab): I shall be brief, because I want just to raise a few issues about clause 11. There has already been a great deal of debate on that clause. At the outset, I should say that I recognise that the Secretary of State has moved a very long way from where he was on Second Reading. He has introduced significant changes. The Bill contains a great deal of good in the part that deals with coroners, but I still have a problem with clause 11. It is pretty obvious that the
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provisions of clause 11 will come into play only in some contentious—and then inevitably high-profile—cases. That is inevitable. It is more critical than ever in such cases that we ensure that the families of those people for whom the inquests are held are satisfied with the way in which they are held.

I am still not clear about how we can be sure that the families will be properly represented. I hope that I will hear an answer later in this debate. My hon. Friend the Member for Hendon (Mr. Dismore) raised the question of special counsel—whether there will be a special advocate. The Secretary of State referred to a special advocate for the inquest but did not mention anything similar for the families. It is even more important that the families’ legal representatives are able to take part fully in the process and that, if necessary, legal aid is made available.

Mr. Gray: The hon. Gentleman will know that new clause 31, which I tabled but which has not been selected for debate, proposed precisely that—legal aid for those whom the coroner chose to designate as deserving of it. I hope that that new clause will be taken up in the other place.

Mr. Gerrard: I thank the hon. Gentleman for that point. It is critical that we do not reach a situation where a family cannot be properly represented, and represented in two ways. First, how are they represented at the point of certification and how is it possible for them to be involved in challenging the process of certification? Secondly, if certification goes ahead and an inquest is held at least partly in private, how in the families’ absence will their legal representatives be involved in hearing that evidence?

I am also still far from clear on what ills the change is supposed to cure. Two cases have been referred to—one in which an inquest was held up, and another in which the inquest is now going ahead. That is all. It is suggested that they were the trigger for the powers. I have not heard a long litany of cases in which there have been problems. Indeed, some very difficult cases have gone ahead, with safeguards in place to make sure that some evidence was not made public. I need to be convinced that the measures are the only way of dealing with the one or two problem cases.

The Secretary of State says that only one or two cases will be dealt with in such a way, but in clause 11—even the revised version, once his amendments are made to it—there are quite broadly drawn criteria that could be used if an inquest without a jury is sought. The criteria include protecting national security or a relationship with another country, and preventing or detecting crime. It seems that to some extent we are dealing not with problems that have occurred but with hypothetical problems that may occur in future, and that always makes me nervous in legislation. It always makes me nervous when we are sold legislation on the basis that something may happen in future to make it necessary; we should rather be able to point to a real problem that has happened and needs to be corrected.

The Secretary of State says that uses of the power will be few and far between, and that the judges will decide, but I am not sure that I can read the minds of
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High Court judges and say what they would do in future, when faced with representations from a Secretary of State that an inquest should take place without a jury. I am not sure, either, what counterweight there would be to the Secretary of State’s propositions when the judge comes to make the decision if, as I suspect, the family will not easily be able to make counter-representations. I need to be convinced that the current inquest procedures to protect sensitive material cannot continue to be used.

Finally, I want to reinforce the point made by my hon. Friend the Member for Hayes and Harlington (John McDonnell) about public confidence. One of the most sure and certain ways of destroying public confidence in a process is for the public to believe that things are being hidden from them. A few years ago, I recall dealing with the case of Zahid Mubarak, although not in the context of an inquest. He was a constituent of mine who was murdered by a racist cellmate while in Feltham young offenders institution. One of the worst aspects of the case was the continued resistance of the Home Office to holding a public inquiry. It was only after the matter had gone to the House of Lords that the family were able to get a decision made to hold a public inquiry. That poisoned the case—the belief that what was happening was an attempt to keep secret what was going on.

That, I suspect, will be the consequence of inquests that the public perceive to be happening behind closed doors. It will be much harder for the state—the Government—to persuade people that there has been a fair process, and that there is not something going on that people want to hide. That is an important consideration in trying to maintain the integrity of the coroner system; people must feel that it is working and that its findings can be trusted.

Mr. Shepherd: I want to follow on from the hon. Member for Walthamstow (Mr. Gerrard), the right hon. Member for Holborn and St. Pancras (Frank Dobson), and the hon. Members for Meirionnydd Nant Conwy (Mr. Llwyd), and for Hayes and Harlington (John McDonnell); the latter introduced the concept of Strawism, and made an important point. I have been in the House for a very long time now—30 years, I think. During that time, an Official Secrets Act was brought forward. I remember that the first intimation, or leaks—that is frequently how Governments are run—were that Lord Hurd, as he now is, was about to introduce into the House a truly draconian measure. When the Bill was published there was such relief that the full weight of all that had been leaked was not to come about that the House almost passed it with a sigh that this was a major improvement. It is true that sometimes our fears are too great, so any concession inclines us to be more respectful of the measure before us.

I have difficulties with the Bill and they centre on clause 11. The right hon. and hon. Members whom I mentioned spoke about a profound principle in our system of law and liberty. The circumstances into which a coroner may inquire are the most obvious ones. We would want to know the circumstances leading to someone’s death in the protection or custody of the state, and whether the death was murder, whether it occurred in suspicious circumstances, and so on.

There is a wider public interest in that matter, not just the family, although one understands and reaches out
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because the death of a member of the family is of crucial importance to the family and to neighbours and friends. It is also of crucial importance to us as a society. Why bother to have coroners’ courts if we are not interested in the circumstances of an unexpected or unexplained death that happens in our midst?

Clause 11 has been said to deal with secret inquests. Indeed, it does invoke secrecy,

Who are we to argue what national security constitutes? That, essentially, has been the argument of the Executive through the ages. We must determine that because we cannot know what it is that we must secure in the national interest.

We have moved on from that. I give the example of the injunction that the Nixon Administration tried to secure against The New York Times in the case of the Pentagon papers. The American authorities insisted that there could be no revelation of the papers, which went to the security and heart of the American state. They dealt with the Vietnam war. A judge decided the matter and the papers were published in The New York Times. No state fell. America progressed and retreated from Vietnam.

What was in the public interest? Was the secrecy in the public interest? “National security” was the cry. Absolute national security was what the Nixon Administration demanded. They were denied it by the independence of a judicial process. Looking back 40 years later, did the world end? No. But the result was greater public knowledge and a wider public perception of national public policy. It could therefore be challenged, debated and understood.

The second reason given for an inquest to be held without a jury is the relationship between the United Kingdom and another country. From memory, this and the preceding reason appear in our Official Secrets Act. I remember from the debates that the relationship between the United Kingdom and another country was a contested matter. These matters are vital to everyone’s interest—every citizen of this country and everyone who is concerned about public policy. These are considered greater interests than the ascertaining of the death of a person by the judgment of two people. The Secretary of State, or the Justice Minister, or the lord high panjandrum—he has so many responsibilities—puts the notion before a judge. The judge will determine what the public interest is, but many of us feel that it is for Parliament to decide what the public interest is in matters of this nature. The rule of law must be open and above board, preventing or detecting crime to protect the safety of a witness or another person, or preventing real harm to the public interest. This, however, is a whole bag that catches everything that is inconvenient—perhaps only that—to those who administer the state.

8.45 pm

As I said, I have been here a long time. There was a time when the attestation of a public interest immunity certificate, for instance, was almost an absolute assertion. One learned from the unravelling of the Scott inquiry that judges did not necessarily look behind the public interest immunity certificate; in fact, they quickly back-tracked. We are told that now judges take a determined interest in a public interest immunity certificate. However,
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there were all the arguments leading up to the Scott inquiry, which was about the standing of Britain—whether we had exported arms and whether the process had been correct. Scott’s judgment was that two Cabinet Ministers had failed in their constitutional duty to keep the House informed.

It may seem that I have wandered widely from what happens in a coroner’s court. But a coroner’s court is no less a part—and a very important part—of our freedom. It is a safeguard that ensures that the state cannot just override the inconvenience of someone’s death or something that has happened to someone. It tells us the actual nature of what our real public policy is. That, I think, is why the provisions that I have been discussing are in the Bill.

The Secretary of State’s argument is that the interests of our country may not always coincide with the rule of law. We are talking about Executive, Crown appointees who use prerogative as the foundation—although much circumscribed by the House over time—through which there can be protection in respect of the inconvenience of the public, united, disagreeing with their judgment on what public policy should be. That is the tension that lies in secrecy about great matters. We are talking about the death of a citizen, and the reasons set out in the Bill are important. We should not take clause 11 or the processes that get us there lightly. Is it not better to know that when such a certificate is brought into place, it is open to real challenge?

I have learned a new word: “gisting”. I thought that “gist”—the “gist” of something—was only a noun. Just think about it: the “gist”. That is not the facts.

Andrew Mackinlay: It’s spin, spin!

Mr. Shepherd: The hon. Gentleman says that it is “spin, spin”. I do not accept that it is necessarily intended to be that, although we are well accustomed to spin. But each one of us does a précis of things. I remember it from school; we were marked on the quality of our précis, and we did not always do a good one of the central facts. I do not doubt that clever judges and those educated and powerful in the law, which I certainly am not, can make a better fist of things than I did as a schoolboy. But I do not like the idea of only the “gist” of something being involved. However, it seems acceptable to many in the House, so I listen with interest.

The principle that our processes should be open, however inconvenient, is one that has to be genuinely undermined by the arguments of the Executive, and we did not hear that today in the responses to the hon. Member for Cambridge (David Howarth), who spoke on behalf of the Liberal Democrats, or to my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve), who represented us so eloquently from the Front Bench. This House could therefore confidently reject this proposal on the basis that something better will come in another place, whose Members will have enough time and opportunity properly to examine these contentions.

Mr. David Kidney (Stafford) (Lab): In the Public Bill Committee, I made the same criticisms of the Government’s original clause 11 that the hon. Member for Cambridge (David Howarth) made earlier, so I was no fan of that proposal. However, I support the Government’s current proposals.

I said in Committee, and say tonight, that we must approach two principles in this debate. First, is it within
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Parliament’s contemplation that in an investigation into a death where there would be an inquest with a jury, there might be protected matters of such sensitivity that the inquest could not proceed with the jury? It is reasonable for some parliamentarians to conclude that there are no circumstances in which we should allow the inquest to proceed without a jury, and hon. Members who have come to that conclusion should clearly oppose these provisions. I come to the other conclusion.

Jeremy Corbyn (Islington, North) (Lab): When this matter was discussed in Committee, what defence was given for the idea that we should have secret inquests where they involve matters of relations with other countries that may have legal systems that are nowhere near the standard that we would wish or expect?

Mr. Kidney: I am not the Minister defending such proceedings. However, national security involves relations with other nations, and the argument is that the Bill’s definition of national security alone might not protect some of the exchanges of intelligence with other states’ Governments that would involve matters of shared national security—theirs and this country’s. That was the Government’s reason for extending the provisions beyond the phrase “national security”, but it is not my explanation.

The first principle concerns whether there might be circumstances where there are protected matters that mean that a jury could not be empanelled in order for the inquest to proceed. I am fortified in coming to my conclusion rather than that of those who disagree with this by the fact that there are apparently, even today, inquests that are stalled because of such a situation. As we have heard, there have been two such instances in the past. It is true that in one of those cases the impasse has recently been resolved and the inquest is going to proceed, but the other one is still stalled. If there is already a case before we pass this law, it is within our contemplation that there could be cases in future.

Mr. Dismore: The case that has been stalled has no international dimension whatsoever—it is about a straightforward police shooting.

May I put a hypothetical case to my hon. Friend? Let us suppose that somebody is in detention in Pakistan and is tortured, and there is an allegation that the British secret services were complicit; that that individual is then rendered by, say, the United States to Morocco, where they are tortured again and there is a suggestion that the British secret service supplied questions; and that he then ends up in Guantanamo Bay, where he dies of his injuries. That is the case of Binyam Mohamed; he survived, but let us suppose that he died. Is that the sort of case that my hon. Friend thinks might be caught by these provisions?

Mr. Kidney: I agree that these are serious issues. However, even the new clause recognises that there might be matters of national security that form the basis for saying that protected matters can arise. I do not think that it is helpful to get involved in an individual case.

The second principle is that it is surely the Executive’s responsibility to identify protected matters, subject to
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an unreasonable decision being capable of challenge in the courts through judicial review, but it is the judiciary’s responsibility to determine how to conduct judicial proceedings. The Government try to make that distinction in the new proposals. A judge making a determination on how to conduct an inquiry in the knowledge that protected matters have been identified by the Executive will have before him or her what has been called the panoply of powers short of not having a jury at all, and the Bill may add new powers to that panoply. The judge could consider the measures that have been discussed tonight and determine whether some of them would be sufficiently effective to safeguard the protected matters so that the inquest could continue with a jury.

Mr. Heath: Does the hon. Gentleman believe that the judge has the ability, under the terms of amendment 97, to consider whether a certification that matters should be protected made by the Secretary of State was proper? I do not think that he does.

Mr. Kidney: The determination of protected matters is an Executive role, not a judicial one, though it may be subject to judicial review if people want to challenge the reasonableness of the protection.

David Howarth: The point that the hon. Gentleman made in Committee applied to national security, and I could follow that. But the Government’s proposal does not apply just to national security but to the other three matters as well, about which the Government have no particular advantage over the rest of the criminal justice system.

Mr. Kidney: That brings us back to judicial review, I am afraid. That would be the answer to someone saying, “This measure does not prevent crime or protect the life of a witness—the Executive are being unreasonable in saying such a thing.” That would be a matter of challenge through judicial review.

When people say that the measure is still not right, and that work needs to be done in the other place, what comes to my mind are the remarks of the Secretary of State, when he said that a judge would bend over backwards to use other powers so as not to exclude a jury from an inquest. The amendment does not use words “bend over backwards”, but equally it does not use a qualification that would be recognised in legal terms to ensure that a jury would not be empanelled only in an in extremis case. In that sense, a bit of work might still need to be done on the measure.

Mr. Oliver Letwin (West Dorset) (Con): May I take the hon. Gentleman back to the point he made about judicial review? In the light of his answers to the Liberals’ questions, does he accept that a judge would not be in a position to judge the merits of the Government’s decision? As he said, the judicial review would judge only the reasonableness of that decision so that at no point would anyone judge externally the merits of the Government’s decision.

Mr. Kidney: The right hon. Gentleman has not been here all through the debate, and other speakers before myself have made the case that today’s judiciary challenges strongly any Government claims that they have made the right decision. A judge in a judicial review challenge
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would be able to examine the Government’s case that there were protected matters that should not be disclosed in an inquest.

I support the Government’s proposals in amendment 97, although there is still the question of whether a judge would bend over backwards to ensure that there is a jury in an inquest unless the case were particularly exceptional.

Mr. Straw: With the leave of the House, I should like briefly to respond to the points raised in the debate before the hon. Member for Cambridge (David Howarth) concludes it.

The right hon. and learned Member for Folkestone and Hythe (Mr. Howard) mentioned intercept evidence and asked why we were not waiting for the Chilcot review before accepting intercept evidence in special inquests in the circumstances described in clause 13. I am in exactly the same position as he is, because I want to be very cautious about allowing intercept evidence to be made available in criminal trials.

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