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Coroners and Justice Bill

Consideration of Lords amendments

Mr. Deputy Speaker (Sir Michael Lord): I draw the attention of the House to the fact that financial privilege is involved in amendments 12, 14, 28, 54, 66, 131, 145, 149, 150 and 185. If the House agrees to any of these amendments, I shall ensure that the appropriate entry is made in the Journal.

After Clause 5

Information for Requests

5.3 pm

The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): I beg to move, That this House disagrees with Lords amendment 1.

Mr. Deputy Speaker: With this it will be convenient to discuss the following: Lords amendment 2, and Government motion to disagree.

Lords amendment 216, and Government motion to disagree, and amendments (a) and (b) in lieu.

Lords amendments 112 and 127.

Lords amendment 128, and amendment (a).

Lords amendment 129, and amendment (a).

Mr. Straw: This group of amendments concerns an extremely important issue. It relates to the question of whether an investigation into the cause of death can take place within the coroners system, and in compliance with article 2 of the European convention on human rights, in circumstances involving highly sensitive information, such as intercept material, which cannot be made public. It is only in a very small number of inquests-fewer than 2 per cent. of all inquests-that the coroner has to sit with a jury. Those are often the most controversial cases, where someone has died potentially at the hands of the state. Of that 2 per cent., there are only a tiny number where article 2 is engaged and there is sensitive material that should not be publicly disclosed.

I should say right at the beginning that every effort is made by this Government-and will be by any Government and by law enforcement agencies-to push for the standard coronial system with a jury in this kind of case to ensure that, if humanly possible, it is a normal coroner's inquest with a jury that holds the investigation. There was some suggestion with the de Menezes case that it would not be possible, because of the sensitive material, to hold such an inquest, but in the event it was, as ways round the problems were found. That was to the general approbation of everybody-not least and above all to the families and the community concerned. There is no intention whatever-by the agencies, by the police, by the Government, by the Law Officers-that any provisions in this Bill should ever be used as an alternative to a normal inquest where such a normal inquest can, by stretching the envelope as far as possible, be used. Where intercepted evidence is available, every effort is made to gist that material and if the coroner is satisfied that the gist provides a fair summary of the evidence, that is regarded as satisfactory.

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Mr. Graham Allen (Nottingham, North) (Lab): For those of us who are not distinguished lawyers and who come to the debate as lay people, will the Secretary of State please tell us what arrangements exist so that highly sensitive information can be discussed or divulged in camera? Is there not already provision that would cover most of the cases that he refers to?

Mr. Straw: In a sense, my hon. Friend makes my point. There is potential for any tribunal-with a small "t"-to go into camera. In many cases, that provides the answer. For sure, there are long-established rules so that in cases where human intelligence is involved evidence can be given by the staff of the security and intelligence agencies from behind screens-or otherwise their identities can be withheld. In most cases, that is satisfactory. There is, however, a tiny number of cases-there is one we know of at the moment; only one-for which the central evidence arises from intercept. There is a grave anxiety-this is a central issue in the whole question of the disclosure of intercept-that if that evidence were made available as intercept transcriptions in closed court, it would have to be made available to those present, including many who had not been cleared for these purposes.

This issue was examined in great detail by the Chilcot inquiry. As I will explain, it came forward with nine conditions in which intercept material in our environment -not in other people's environments-could be made available to the court. I am glad to see in their places today the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) and the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), both of whom sat on the Chilcot inquiry and the subsequent advisory panel, so they know a huge amount about this issue.

Mr. Robert Marshall-Andrews (Medway) (Lab): This assessment must have been made so will the Secretary of State please tell us how many inquests-shall we say in the last five years-he estimates would have been affected by this Executive intervention?

Mr. Straw: As far as I know-if I am wrong, I will try to correct the record before the debate is concluded-there is one outstanding case, the Azelle Rodney case, which goes back four years. We are dealing with a tiny number of cases, but the problem is that unless we find a way through this problem, there will be no satisfactory investigation into the cause of death in an equivalent case -I make no prejudicial remarks about that particular case.

The original proposals for so-called secret inquests came from my right hon. Friend the Member for Airdrie and Shotts (John Reid), when he was Home Secretary. They did not find favour and were withdrawn, as it was the Secretary of State deciding on whether an inquest should be held without a coroner. It was thought inappropriate-I understand the arguments and agree with them-for the decision in such a sensitive matter to be made by a Home Secretary alone. After much consideration and discussion, I proposed a different scheme that found its way into clause 12 of the Bill as it left the House: a Home Secretary would form a view that a non-jury inquest was required, and the Lord Chief Justice would nominate a senior judge to hear it, but a prior hearing by that judge would determine, on application by the Secretary of State and on hearing the other parties, whether to accede to that application on clear criteria.

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David Howarth (Cambridge) (LD): Will the Secretary of State also confirm that clause 13, as originally drafted, allowed the use of intercept evidence?

Mr. Straw: Section 18 of the Regulation of Investigatory Powers Act 2000 also allows the use of intercept evidence in certain cases, but the difference is that in neither scheme was intercept evidence to be made available to a wide variety of parties in the courts, or to a jury. We are not digging in-we never have-and saying that in no circumstances should intercept evidence be available to a court, prior to the Chilcot recommendations being implemented. I was the Home Secretary who introduced, in 1999-2000, the Regulation of Investigatory Powers Act. The central issue is how to ensure that such sensitive material, and all the techniques behind it, are protected.

Everybody who has been in the position-as have I, the right hon. and learned Member for Folkestone and Hythe, and the right hon. Member for Berwick-upon-Tweed as a member of the Chilcot committee and the Intelligence and Security Committee-of operating or supervising the system is alive to the dangers and invites others to take on trust the nature of the dangers. I hope that colleagues will accept, from a wide variety of sources, and from right hon. Members who do not necessarily agree on everything, that a serious issue needs to be addressed. If I felt otherwise, I would say so, as would the other right hon. Gentlemen involved.

Sir Alan Beith (Berwick-upon-Tweed) (LD): There is another complication to the problem, which is not just awareness of the dangers, but certainty that a particular step will not necessarily lead to others that expose the dangers. Although it might prove entirely reasonable to use intercept in particular circumstances, the rules to make that possible do not have to create a situation in which intercept is used in circumstances in which that would be dangerous to national security.

Mr. Straw: I accept that, and in our debates about intercept some people have taken the view that we should just make it available. The Chilcot committee looked in some detail at the systems in other countries, but our system is much more adversarial, and the rules relating to the disclosure of unused material, and the police techniques behind it, are much tougher in most cases than those in other jurisdictions. That is fundamental to the problem that Chilcot was trying to deal with.

We have to find some way of achieving a solution when there has been a death at the hands of the state and article 2 is involved, as are the requirements that, in every other circumstance, a jury inquest would take place. There can be a satisfactory finding of fact about the cause of death. There is a fundamental difference between such an investigation into a death, and any investigation leading to a criminal trial. In extremis-this has happened-the prosecution have the discretion to withdraw a prosecution, as they can balance the public interest if they think that they are being required to disclose material that would damage national security. In the context of an inquest or an investigation of a death under article 2, that is not an option, because it is the death that triggers investigation in the circumstances. There is no discretion. The investigation must be held. The only issue before the House-and it is an important one-is what the environment of that investigation should be.

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5.15 pm

When clause 12 failed to find favour, I announced, along with my right hon. Friend the Home Secretary, that as an alternative he would use the provisions in the Inquiries Act 2005 to establish an inquiry. That had been suggested to us informally as an alternative. Provisions introduced in the other place make it clear that the matters before any such inquiry must be those matters which would have been before any inquest, as an irreducible minimum. There is also provision, in schedule 1, for the inquest itself to be formally adjourned while an inquiry takes place, and general provision for it to be resumed. In some cases it may be decided that there is no need for it, while in other cases it will be resumed.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): In earlier debates, I put to the Secretary of State the possibility of introducing public interest immunity certificates into the whole scenario, thereby excluding the detail of intercept evidence. To this day I am not sure what the explanation is, whether it holds good, and whether it could apply. Will the Secretary of State please address that point?

Mr. Straw: Public interest immunity certificates are used to withhold from a jury information that would otherwise be disclosable, but not in a case in which it could lead to an injustice. The right hon. and learned Member for Folkestone and Hythe signed plenty of PIIs, and I signed plenty of them both as Home Secretary and as Foreign Secretary. The difficulty in this instance is that if we leave it to a jury to consider the matter-as even those who support the idea, such as Lady Miller and certain interest groups outside, will accept-the finder of fact, the jury in this case, will be expected to find the facts when some of the key facts are being withheld. Surely that is far less just than allowing a senior judge of High Court status or above to examine the issue.

Mr. Andrew Dismore (Hendon) (Lab): Schedule 1(3)(2) to the Inquiries Act states:

Will my right hon. Friend confirm that an exceptional reason might be that the inquiry did not comply with article 2 of the European convention on human rights? If a coroner took the view that it did not, would he be within his rights if he refused to suspend the investigation, and would my right hon. Friend support him in that decision?

Mr. Straw: With great respect to my hon. Friend, I think that the idea of inquiries is that they should comply with article 2. There would be scarcely any reason for proceeding if they did not. I shall say more about this when I sum up the debate, but if that were the case, the matter would fall to be resolved in the normal way, and it might well be for the court to decide whether the inquiry was compliant with article 2.

Mr. Dominic Grieve (Beaconsfield) (Con): As I shall make clear in a moment, I am conscious that the Secretary of State has a real problem, and that it is for us in the House to try to help rather than hinder him. Will he confirm, however, that there may already be all
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sorts of trials-inquests and, indeed, criminal trials- that might be helped by the admissibility of intercept evidence?

Let us be clear about this. The category of case to which the Secretary of State is referring is not a category of case in which intercept evidence might be available that would help but, I assume, a category of case in which intercept evidence goes to the very heart of the decision of an inquest or inquiry. That already narrows it down considerably.

Mr. Straw: Yes, it does. Typically, the intelligence agencies or the police have available to them intercept evidence which is highly incriminatory. That is, indeed, the argument in its favour, and the reason for its use in cases abroad. It has been judged to be in the wider public interest not to make it available up to now. Chilcot has come forward with his nine conditions, but on the whole we manage to find other means of ensuring that evidence is found.

I should just point out to the House-this is not remotely a theological issue-that it has long been accepted that evidence obtained through recordings, such as hidden microphones, is adducible in court, and that is often used. The point here is that the compromise of techniques is far less. The balance in respect of public interest lies in favour of disclosure. We therefore put forward these proposals, and we sought to strengthen them in the interests of the parties not least by ensuring that a senior judge should be appointed to hold such inquiries.

A series of amendments were put forward in the other place, which I am inviting the House to reject today. They propose that this evidence should be made available to a normal inquest court, save in certain very limited circumstances where the court has a power to withhold it from the inquest jury. The difficulty here is that under the amendments the coroner could disclose the material to the interested parties even if that could cause very considerable damage to other parties. I say with respect that this is where I identify the central flaw in the argument of Baroness Miller and her supporters, such as Inquest, Liberty and Justice, with whom I have talked and for whom I have great respect-and my clause 12 is an attempt to square this circle. Those three supporters have said that

If that is so, we return to the central problem here: in these cases, where the evidence from the intercept is key to the cause of death-because if it were not, it would be possible to offer other information-we are expecting juries to come to a decision based on facts that have not been disclosed to them. Baroness Miller inadvertently made the same admission herself. On Report, she said of the Chilcot inquiry conditions that

I have two things to say about that. First, some very assiduous and imaginative individuals-including two in this House-are sitting on the advisory panel on the
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implementation of Chilcot, and achieving this end is very difficult. Secondly, I say, with respect to Baroness Miller, that I do not believe that she had read Chilcot's nine conditions. The second of them, for example, says:

There are various other restrictions on disclosure, too, so we are back in the same box. In a criminal trial, even where there are PIIs, it is fundamental that the trial judge ensures that there is a fair trial in every circumstance, and if he thinks there will not be a fair trial, including in respect of taking account of material he has seen under the PII, he can abort the trial. I say again that that is not a possibility in an inquest, which is an investigation into a death that has taken place.

David Howarth: Is the Secretary of State saying the following? On the one side, there is some risk-although presumably a very remote one-that a coronial judge might reveal information to the parties the revelation of which would be damaging to a party, or that a jury that contains people who are not secure might receive certain information. On the other side, there is a risk that sometimes information will not be disclosed to the jury which it would need to make a perfect decision on the facts. Surely the problem is that that is making the best the enemy of the good. There is no perfect solution to this, but surely a system that allows, in general, the disclosure of intercept evidence will, in general, produce the best results.

Mr. Straw: The issue of whether and, if so, how intercept evidence can be used in our trial system has exercised senior politicians and senior members of the judiciary for a long time. It is not for the want of trying that we have yet, finally, to pin down a solution. That is the purpose of Chilcot's report and we have got closer to a solution through it than we have ever got before. I am extremely grateful to those who have been burning their brains out on how to ensure that we arrive at the correct solution.

However, we cannot suddenly say, in a rather blasé way, that we are just going to adopt Chilcot's approach for coroners' inquests, without having a proper scheme for every other circumstance. Precisely because of the fact that there is no discretion about whether or not to proceed with an investigation into a death whereas there is that long-stop protection of discontinuing a prosecution in a criminal trial, we have to ensure that the inquests system is more robust than any other-that is so by definition, because it has to be used in every case where there is a relevant case; there is no alternative but to hold an investigation. That is the point I make. I should say, as I was about to say in a moment, that what I have done, and so my right hon. Friend the Home Secretary has to have done, is ask the advisory panel on intercept evidence, which includes hon. Members here, whether they will particularly examine the issue of evidence in coronial matters, because we need to find a specific way forward.

I wish to illustrate the point some more for the benefit of the House. Amendment 2, which I am proposing to delete, includes a subsection that states:

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