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As I think the right hon. and learned Gentleman will recall, there is already provision in the Regulation of Investigatory Powers Act 2000 for limited exceptions to the prohibition of the evidential use of intercept, which is set out in section 17 of that Act. Those exceptions are enclosed proceedings before the Special Immigration Appeals Commission or the Proscribed Organisations Appeal Commission and the making of control orders under the Prevention of Terrorism Act 2005. Of course, inquests are civil, not criminal proceedings, and Chilcot was directly related to concerns about criminal proceedings. I suggest that what we are doing is consistent with the precedent that has been set in the cases of SIAC and POAC.
Mr. Howard: But surely the Secretary of State would accept that the provisions in RIPA predate the Chilcot committee, all the work that is currently being carried out and the importance attached to those safeguards. Now that we know that the Chilcot committee has reported and that officials are working through its recommendations with conscientiousness and care, the situation is different from that which pertained when RIPA was enacted. Given what is happening now, we ought to wait for the result of those investigations before legislating in this way.
Mr. Straw: The right hon. and learned Gentlemans point would be a good one if inquests were criminal proceedings, but they are not. They are civil proceedings, and there is a much stronger parallel with POAC and SIACI believe that he established the latter process. Precisely because RIPA preceded Chilcot, we have those precedents in section 18 of that Act.
I wish to provide the hon. Member for North Wiltshire (Mr. Gray) with reassurance about whether non-jury inquests could apply in the case of military inquests. If he looks at clause 7(2), he will see the circumstances in which a jury must sit in an inquest. They are essentially cases in which there has been a death in state custody or resulting from an act or omission of a police officer or member of a service police force, or a death
caused by a notifiable accident, poisoning or disease.
A senior coroner has the discretion to have a jury, but those criteria apply to state custody deaths or similar circumstances. They are simply irrelevant to military deaths, which arise in quite different circumstances. That being the case, the trigger in amendment 94 could not be fulfilled. That amendment sets out that the Secretary of State may certify an investigation under various criteria, including, as stated in proposed paragraph (b), if
the inquest will (if the investigation is not certified) be held by a senior coroner with a jury.
On the central issue, I say to my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson) and other hon. Members that I understand their use of the term secret inquests, and we are certainly talking about inquests that will receive secret evidence, parts of which will be held in camera. However, it is common ground among all parties that there would have to be parts of inquests held in camera even if they were before a jury. The only part of such inquests that will be held in private, without the family being present, will be when there is protected evidence. When that takes place, counsel would be appointed to the inquest and directed by the coroner to take the responsibility of representing the familys interests and to test the evidence that could not be disclosed. I appreciate that that is second best, but the process has been used in plenty of other circumstances relatively satisfactorily.
Under the set of procedures that we have discussed, the Secretary of State certifies, and the matter then goes before a judge to determineI stress to hon. Members that it will be for judges to decide; amendment 97 plainly anticipates the judges holding an inquest without a jury on the established criteria and if he is satisfied that it is necessary to do that to avoid the matters being made public or unlawfully disclosed, and the next limb anticipates an inquest with a jury. I emphasise to my hon. Friend the Member for Stafford (Mr. Kidney) that the central issue will not be the certificate but its effect. The certificate simply triggers the application, so it is hardly necessary to go behind it, although the learned judge will want to know the reasons for it because they will be germane to the evidence to be protected. The question then is whether there are ways in which to protect the material other than being without a jury.
Mr. Straw: Because the Secretary of State may be concerned about the need to protect the information. However, we do not believe that the Secretary of State should be the determining individual, who decides whether to dispense with a jury. I know that my right hon. Friend is sceptical about the independence of the judiciary, but, as someone who has been rolled over in judicial review after judicial review almost weekly since I became a Secretary of State 12 years ago, I believe that the courts are very independent, and on precisely the sort of issue that we considering. I remind my right hon. Friend of the excoriating judgments by the Law Lords about control orders. If the courts were a patsy, they would have said, Fine, well simply accept them.
Hon. Members of all parties accept that there may be occasions when the information to be protected is such that it cannot go before a jury. The difference between Conservative Front Benchers and us is that we believe that a judge in the High Court should make that judgment. The hon. and learned Member for Beaconsfield (Mr. Grieve) rather eccentrically takes the view that a Secretary of State should make it. Under his proposal, when the information could not be presented before a jury, it would be for a Secretary of State to establish a special inquiry under the Inquiries Act 2005.
Mr. Grieve: At the risk of repetition, I should make clear what I said earlier. I believe that, if one sticks to the existing system, the likelihood of any departure from a jurys sitting in a coroners court will be greatly lessened. That is the only reason for my saying that the existing system is better than what the Secretary of State has devised.
The hon. and learned Gentleman also said that, when necessary, he preferred the Inquiries Act route, whereby the Secretary of State determines whether to dispense with a jury, to the Bill. I believe that the proposal whereby any decision by a Secretary of State has to be tested before and by a judge is much less likely than his to end in juries being dispensed with. I am glad to say that on that, if on few other issues, I have the full backing of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), who made it clear that the process that we are putting in place is correct.
David Howarth: The whole debate has been dominated by two things. One is public confidence in the verdicts of inquests, which is related to the issue of the jury. Without a jury, how can we have confidence that verdicts in such cases will not be a stitch-up, especially given the circumstances in which juries are called into being in inquests in the first place? That was the point made by the hon. Member for Hayes and Harlington (John McDonnell), among others.
The second issue is about whether families are excluded from the process. Throughout his remarks, the Secretary of State never satisfied me or anyone else in the Chamber on that point. He had several goes at it, but in the end it came down to this: somebody else might, in certain circumstances, represent the family. That issue, which was raised by the right hon. Member for Holborn and St. Pancras (Frank Dobson) and the hon. Member for Walthamstow (Mr. Gerrard) among others, goes to the heart of whether what has been proposed really protects victims and their families. I am certain after hearing the debate that it does not.
The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) made several important points, especially about cases in his experience where the security services have been involved. He also pointed out the simple fact that the cases that we are talking about are those that involve deaths at the hands of the state. That is why we need the widest possible use of juries in such cases. That is the counterweight to what the hon. Member for Stafford (Mr. Kidney) and the right hon. and learned
Member for Sleaford and North Hykeham (Mr. Hogg) said about cases in which there might be some nervousness about using a jury. We need to think about what those cases are. They are cases of deaths at the hands of the state in the first place.
Whenever someone says that there are cases where the jury has to be excluded, they never come up with a convincing example. The one example of a case where the process is frozen, which the hon. Member for Stafford mentioned, is one that has nothing to do with national security. However, as the hon. Member for Hendon (Mr. Dismore) mentioned, in that case things seem to have gone very badly wrong legally.
The other remark from the right hon. and learned Member for Sleaford and North Hykeham that made me nervous was his assumption, which I think the Government share, that juries are inevitably leaky. If one follows the wording of what is proposed, one sees that it would mean that a judge, even bending over backwards, would be unable to allow the jury to continue in the case, because he or she would have to conclude that the protected matters would end up being made public.
Mr. Grieve: The hon. Gentleman may have shared my experience, but I was trying to rack my brains to think of instances in the past where vetted juries doing espionage cases were alleged to have spilt the beans in the public domain afterwards, and I simply cannot think of any such example.
David Howarth: I could not think of one either. We briefly discussed vetting juries in Committee, but the Governments only reply was that the standard for vetting juries for espionage trials and terrorist cases would be too low for such inquests. I find that just incomprehensible.
In the end, the debate comes down to the point that the hon. Member for Hendon made. The crucial question is this: if the process now proposed by the Government had been in place in the past 10 years, would it have affected important inquests such as the de Menezes inquest? Would the Government have asked for the jury to be removed? I have no doubt that they would have asked for that and that they would have put in place that certification. The Governments only defence is that perhaps the Secretary of State would have been found to be mistaken by the judge and perhaps the judge would have applied the words of the statute in a way that would not be justified and overturned the Secretary of States judgment. That seems highly unlikely, given what is being proposed this evening andthis is the point that the hon. Member for Walthamstow madegiven that the only arguments and evidence before the judge at that point would be those of the Government. We are talking not just about national security, but about that broad range of items, which are not those about which the Executive would have better knowledge than anybody else.
On the question of relations with other countries, what does the hon. Gentleman think would be the definition of a good relationship? Would it be a question of whether the country was a dictatorship or a democracy, or whether it fulfilled all international
requirements? Or would it simply come down to issues such as arms sales and the murder of British people in those countries?
There is broad scope for the abuse of these powers. The question that the hon. Member for Hendon asked needs to be answered in the affirmative: yes, it would have made a difference if these powers had existed sooner; and, yes, it would have resulted in more inquests being held without juries. As the hon. Member for Aldridge-Brownhills (Mr. Shepherd) said, the only conclusion that one can draw is that we must excise clause 11 from the Bill. There might be better ways forward, and there might be other ways of doing this. We do not know what the Government might propose if we were to excise the clause, but excise it we must, in order to allow further and better debate on this subject in another place. I therefore beg to ask leave to withdraw the new clause, although I wish to press amendment 2 to a vote.
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