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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 Gentleman’s 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 SIAC—I 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

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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

I can therefore provide the hon. Gentleman with the absolute assurance that he seeks.

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 family’s 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 determine—I stress to hon. Members that it will be for judges to decide; amendment 97 plainly anticipates the judge’s 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 matter’s 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.

Frank Dobson: If there are other ways, why would the Secretary of State start the process in the first place?

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, we’ll simply accept them.”

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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 jury’s sitting in a coroner’s 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.

Mr. Straw: Hansard will show something different.

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
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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 Government’s 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 Government’s 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 State’s judgment. That seems highly unlikely, given what is being proposed this evening and—this is the point that the hon. Member for Walthamstow made—given 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.

Jeremy Corbyn: 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
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requirements? Or would it simply come down to issues such as arms sales and the murder of British people in those countries?

David Howarth: All experience shows that it is the latter. It would be up to the Secretary of State to decide that on the certificate, and there is no way of getting behind that certificate in court.

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.

Clause, by leave, withdrawn.

Clause 11

Certified investigations: investigation by a judge, inquest without jury

Amendment proposed: 2, page 6, line 2, leave out Clause 11.— (David Howarth.)

Question put, That the amendment be made.

The House divided: Ayes 229, Noes 263.
Division No. 83]
[9.16 pm


Abbott, Ms Diane
Afriyie, Adam
Ainsworth, Mr. Peter
Alexander, Danny
Amess, Mr. David
Arbuthnot, rh Mr. James
Atkinson, Mr. Peter
Bacon, Mr. Richard
Baker, Norman
Baldry, Tony
Barrett, John
Beith, rh Sir Alan
Bellingham, Mr. Henry
Benyon, Mr. Richard
Bercow, John
Beresford, Sir Paul
Binley, Mr. Brian
Blunt, Mr. Crispin
Bone, Mr. Peter
Boswell, Mr. Tim
Bottomley, Peter
Brady, Mr. Graham
Brake, Tom
Brazier, Mr. Julian
Brokenshire, James
Brooke, Annette
Browne, Mr. Jeremy
Browning, Angela
Burgon, Colin
Burns, Mr. Simon
Burrowes, Mr. David
Burstow, Mr. Paul
Burt, Alistair
Burt, Lorely
Butterfill, Sir John
Cable, Dr. Vincent
Campbell, rh Sir Menzies
Campbell, Mr. Ronnie
Carswell, Mr. Douglas
Cash, Mr. William
Clark, Greg
Clegg, rh Mr. Nick
Corbyn, Jeremy
Cormack, Sir Patrick
Cox, Mr. Geoffrey
Crabb, Mr. Stephen
Curry, rh Mr. David
Davey, Mr. Edward
Davies, Mr. Dai
Davies, David T.C. (Monmouth)
Davies, Philip
Dismore, Mr. Andrew
Djanogly, Mr. Jonathan
Dobson, rh Frank
Dorries, Nadine
Duddridge, James
Duncan Smith, rh Mr. Iain

Dunne, Mr. Philip
Durkan, Mark
Ellwood, Mr. Tobias
Evennett, Mr. David
Fabricant, Michael
Fallon, Mr. Michael
Farron, Tim
Featherstone, Lynne
Field, Mr. Mark
Fisher, Mark
Foster, Mr. Don
Francois, Mr. Mark
Fraser, Christopher
Garnier, Mr. Edward
George, Andrew
Gerrard, Mr. Neil
Gibb, Mr. Nick
Gidley, Sandra
Gillan, Mrs. Cheryl
Goldsworthy, Julia
Goodman, Mr. Paul
Gray, Mr. James
Grayling, Chris
Green, Damian
Greening, Justine
Grieve, Mr. Dominic
Grogan, Mr. John
Gummer, rh Mr. John
Hague, rh Mr. William
Hammond, Mr. Philip
Hammond, Stephen
Hancock, Mr. Mike
Hands, Mr. Greg
Harper, Mr. Mark
Harris, Dr. Evan
Harvey, Nick
Havard, Mr. Dai
Hayes, Mr. John
Heath, Mr. David
Heathcoat-Amory, rh Mr. David
Hemming, John
Herbert, Nick
Hoban, Mr. Mark
Hollobone, Mr. Philip
Holloway, Mr. Adam
Holmes, Paul
Hopkins, Kelvin
Horam, Mr. John
Horwood, Martin
Howard, rh Mr. Michael
Howarth, David
Howarth, Mr. Gerald
Howell, John
Hughes, Simon
Huhne, Chris
Hunt, Mr. Jeremy
Hunter, Mark
Hurd, Mr. Nick
Jack, rh Mr. Michael
Jackson, Glenda
Jackson, Mr. Stewart
Jones, Mr. David
Jones, Lynne
Keetch, Mr. Paul
Key, Robert
Kilfoyle, Mr. Peter
Kirkbride, Miss Julie
Knight, rh Mr. Greg
Kramer, Susan
Laing, Mrs. Eleanor
Lait, Mrs. Jacqui
Lamb, Norman
Lancaster, Mr. Mark
Lansley, Mr. Andrew
Laws, Mr. David
Leech, Mr. John
Leigh, Mr. Edward
Letwin, rh Mr. Oliver
Lewis, Dr. Julian
Liddell-Grainger, Mr. Ian
Lidington, Mr. David
Lilley, rh Mr. Peter
Llwyd, Mr. Elfyn
Loughton, Tim
Luff, Peter
Mackay, rh Mr. Andrew
Mackinlay, Andrew
Main, Anne
Maples, Mr. John
May, rh Mrs. Theresa
McDonnell, John
McLoughlin, rh Mr. Patrick
Mercer, Patrick
Miller, Mrs. Maria
Milton, Anne
Mitchell, Mr. Andrew
Moore, Mr. Michael
Moss, Mr. Malcolm
Mulholland, Greg
Murrison, Dr. Andrew
Neill, Robert
Newmark, Mr. Brooks
O'Brien, Mr. Stephen
Öpik, Lembit
Paterson, Mr. Owen
Pelling, Mr. Andrew
Penning, Mike
Penrose, John
Prentice, Mr. Gordon
Price, Adam
Prisk, Mr. Mark
Pugh, Dr. John
Randall, Mr. John
Redwood, rh Mr. John
Reid, Mr. Alan
Rennie, Willie
Robathan, Mr. Andrew
Robertson, Hugh
Robertson, Mr. Laurence
Rosindell, Andrew
Rowen, Paul
Russell, Bob
Sanders, Mr. Adrian
Scott, Mr. Lee
Selous, Andrew
Shapps, Grant
Shepherd, Mr. Richard
Simpson, Alan
Simpson, Mr. Keith
Smith, Sir Robert
Soames, Mr. Nicholas
Spelman, Mrs. Caroline
Spicer, Sir Michael
Spring, Mr. Richard
Stanley, rh Sir John
Steen, Mr. Anthony
Streeter, Mr. Gary
Stunell, Andrew
Swayne, Mr. Desmond
Swinson, Jo
Swire, Mr. Hugo
Syms, Mr. Robert
Tapsell, Sir Peter

Taylor, Mr. Ian
Taylor, Matthew
Teather, Sarah
Thurso, John
Timpson, Mr. Edward
Truswell, Mr. Paul
Turner, Mr. Andrew
Tyrie, Mr. Andrew
Vaizey, Mr. Edward
Vara, Mr. Shailesh
Walker, Mr. Charles
Wallace, Mr. Ben
Wareing, Mr. Robert N.
Waterson, Mr. Nigel
Watkinson, Angela
Webb, Steve
Widdecombe, rh Miss Ann
Wiggin, Bill
Willetts, Mr. David
Williams, Hywel
Williams, Mark
Williams, Mr. Roger
Williams, Stephen
Willott, Jenny
Wilson, Mr. Rob
Wright, Jeremy
Yeo, Mr. Tim
Young, rh Sir George
Younger-Ross, Richard
Tellers for the Ayes:

Mr. John Baron and
Dan Rogerson

Ainger, Nick
Ainsworth, rh Mr. Bob
Alexander, rh Mr. Douglas
Allen, Mr. Graham
Anderson, Mr. David
Anderson, Janet
Armstrong, rh Hilary
Atkins, Charlotte
Austin, Mr. Ian
Bailey, Mr. Adrian
Baird, Vera
Balls, rh Ed
Banks, Gordon
Barlow, Ms Celia
Barron, rh Mr. Kevin
Battle, rh John
Beckett, rh Margaret
Begg, Miss Anne
Bell, Sir Stuart
Benn, rh Hilary
Berry, Roger
Betts, Mr. Clive
Blackman, Liz
Blackman-Woods, Dr. Roberta
Blears, rh Hazel
Blunkett, rh Mr. David
Borrow, Mr. David S.
Bradshaw, Mr. Ben
Brennan, Kevin
Brown, Lyn
Brown, rh Mr. Nicholas
Brown, Mr. Russell
Browne, rh Des
Bryant, Chris
Buck, Ms Karen
Burnham, rh Andy
Butler, Ms Dawn
Byers, rh Mr. Stephen
Byrne, rh Mr. Liam
Caborn, rh Mr. Richard
Cairns, David
Campbell, Mr. Alan
Caton, Mr. Martin
Cawsey, Mr. Ian
Chaytor, Mr. David
Clapham, Mr. Michael
Clark, Ms Katy
Clark, Paul
Clarke, rh Mr. Charles
Clarke, rh Mr. Tom
Clelland, Mr. David
Coaker, Mr. Vernon
Coffey, Ann
Cohen, Harry
Connarty, Michael
Cooper, Rosie
Cooper, rh Yvette
Crausby, Mr. David
Creagh, Mary
Cruddas, Jon
Cryer, Mrs. Ann
Cummings, John
Cunningham, Mr. Jim
Cunningham, Tony
Darling, rh Mr. Alistair
David, Mr. Wayne
Davidson, Mr. Ian
Davies, Mr. Quentin
Dean, Mrs. Janet
Denham, rh Mr. John
Devine, Mr. Jim
Donohoe, Mr. Brian H.
Doran, Mr. Frank
Dowd, Jim
Eagle, Angela
Ellman, Mrs. Louise
Engel, Natascha
Ennis, Jeff
Field, rh Mr. Frank
Fitzpatrick, Jim
Flello, Mr. Robert
Flint, rh Caroline
Follett, Barbara
Foster, Mr. Michael (Worcester)
Foster, Michael Jabez (Hastings and Rye)
Francis, Dr. Hywel
Gapes, Mike
Gardiner, Barry
George, rh Mr. Bruce
Gilroy, Linda
Goodman, Helen
Griffith, Nia
Griffiths, Nigel
Gwynne, Andrew
Hain, rh Mr. Peter
Hall, Mr. Mike
Hall, Patrick
Hamilton, Mr. Fabian
Hanson, rh Mr. David

Harris, Mr. Tom
Healey, rh John
Hepburn, Mr. Stephen
Heppell, Mr. John
Hesford, Stephen
Hewitt, rh Ms Patricia
Heyes, David
Hill, rh Keith
Hodgson, Mrs. Sharon
Hoon, rh Mr. Geoffrey
Hope, Phil
Hoyle, Mr. Lindsay
Hughes, rh Beverley
Humble, Mrs. Joan
Hutton, rh Mr. John
Iddon, Dr. Brian
Illsley, Mr. Eric
Ingram, rh Mr. Adam
James, Mrs. Siân C.
Jenkins, Mr. Brian
Johnson, rh Alan
Johnson, Ms Diana R.
Jones, Helen
Jones, Mr. Martyn
Jowell, rh Tessa
Joyce, Mr. Eric
Kaufman, rh Sir Gerald
Keeble, Ms Sally
Keeley, Barbara
Keen, Alan
Keen, Ann
Kemp, Mr. Fraser
Kidney, Mr. David
Kumar, Dr. Ashok
Ladyman, Dr. Stephen
Lammy, rh Mr. David
Laxton, Mr. Bob
Lazarowicz, Mark
Lepper, David
Levitt, Tom
Lewis, Mr. Ivan
Linton, Martin
Lloyd, Tony
Love, Mr. Andrew
Lucas, Ian
Mactaggart, Fiona
Malik, Mr. Shahid
Mann, John
Marris, Rob
Martlew, Mr. Eric
McAvoy, rh Mr. Thomas
McCarthy, Kerry
McCarthy-Fry, Sarah
McCartney, rh Mr. Ian
McDonagh, Siobhain
McFadden, rh Mr. Pat
McFall, rh John
McGovern, Mr. Jim
McGuire, rh Mrs. Anne
McIsaac, Shona
McKechin, Ann
McNulty, rh Mr. Tony
Meacher, rh Mr. Michael
Merron, Gillian
Michael, rh Alun
Milburn, rh Mr. Alan
Miliband, rh David
Miliband, rh Edward
Miller, Andrew
Mitchell, Mr. Austin
Moffat, Anne
Moffatt, Laura
Mole, Chris
Moon, Mrs. Madeleine
Moran, Margaret
Morgan, Julie
Morley, rh Mr. Elliot
Mudie, Mr. George
Mullin, Mr. Chris
Munn, Meg
Murphy, Mr. Denis
Murphy, rh Mr. Paul
Naysmith, Dr. Doug
Norris, Dan
O'Brien, Mr. Mike
Osborne, Sandra
Palmer, Dr. Nick
Pearson, Ian
Plaskitt, Mr. James
Pope, Mr. Greg
Pound, Stephen
Prentice, Bridget
Prescott, rh Mr. John
Primarolo, rh Dawn
Prosser, Gwyn
Purchase, Mr. Ken
Purnell, rh James
Rammell, Bill
Raynsford, rh Mr. Nick
Reed, Mr. Jamie
Reid, rh John
Robertson, John
Robinson, Mr. Geoffrey
Rooney, Mr. Terry
Roy, Mr. Frank
Roy, Lindsay
Ruane, Chris
Ruddock, Joan
Russell, Christine
Ryan, rh Joan
Salter, Martin
Sarwar, Mr. Mohammad
Seabeck, Alison
Sharma, Mr. Virendra
Shaw, Jonathan
Sheerman, Mr. Barry
Sheridan, Jim
Simon, Mr. Siôn
Skinner, Mr. Dennis
Slaughter, Mr. Andy
Smith, rh Mr. Andrew
Smith, Ms Angela C. (Sheffield, Hillsborough)
Smith, Angela E. (Basildon)
Smith, Geraldine
Smith, rh Jacqui
Snelgrove, Anne
Soulsby, Sir Peter
Southworth, Helen
Spellar, rh Mr. John
Spink, Bob
Starkey, Dr. Phyllis
Strang, rh Dr. Gavin
Straw, rh Mr. Jack
Stuart, Ms Gisela
Sutcliffe, Mr. Gerry
Tami, Mark
Taylor, David
Thomas, Mr. Gareth
Thornberry, Emily
Timms, rh Mr. Stephen
Todd, Mr. Mark
Touhig, rh Mr. Don
Trickett, Jon

Turner, Mr. Neil
Twigg, Derek
Ussher, Kitty
Vaz, rh Keith
Waltho, Lynda
Ward, Claire
Watson, Mr. Tom
Watts, Mr. Dave
Whitehead, Dr. Alan
Wicks, rh Malcolm
Williams, rh Mr. Alan
Wills, rh Mr. Michael
Wilson, Phil
Winnick, Mr. David
Winterton, rh Ms Rosie
Woodward, rh Mr. Shaun
Woolas, Mr. Phil
Wright, Mr. Anthony
Wright, David
Wright, Mr. Iain
Wyatt, Derek
Tellers for the Noes:

Mr. Bob Blizzard and
Steve McCabe
Question accordingly negatived.
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