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"the Government does consider that a reasonable belief that the inquiry proposed by the Lord Chancellor would not meet Article 2 requirements because of its scope, would be an exceptional reason which would justify a coroner's refusal to suspend an investigation."
Mr. Straw: I am listening to my hon. Friend with care. Aside from the inadvertent impact that the amendments would have, although I understand the problems about drafting, how would he propose to address the central question at issue, which is how one would deal with highly sensitive intercept material where some of the facts of the intercept-the techniques behind it, as the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) put it-should not, for very good reasons, be disclosed to the inquest jury?
Mr. Dismore: We run the risk of rehearsing debates that we had before on secret inquests. The starting point is that an inquest is not intended to prove something beyond all reasonable doubt. Public interest immunity applies to inquests, subject to judicial review by either side, and the Government can persuade the coroner to withhold sensitive material, as happened and was upheld in the Jordan and McCann cases, for example. My right hon. Friend has already mentioned gisting. Such restrictions are compatible, in principle, with an article 2 compliant inquiry. My concern is that what is being proposed is a secret inquiry at the behest of the Executive.
Mr. Straw: I cannot allow my hon. Friend to gloss over this issue. There is no question of these proceedings being secret. Most of it would be entirely public, although of course part would be secret. What he says is all true. However, what if we are in a situation, which appears to be so in the case of Azelle Rodney, where these devices are not possible? They were, happily, possible in the case of Charles de Menezes, but what if they are not? What do we do then?
Mr. Dismore: As I have indicated, there are other options. We simply do not know enough about the Rodney case to answer that question; that is part of the problem.
Mr. Straw:
I am sorry, but I must press my hon. Friend. He is coming to some clear conclusions about one option, on the basis of the Rodney case, but the moment I put to him the heart of the issue, he says that we do not know enough about it, although we have to
make a decision about it in the next week. I suggest that he is moving away from the central issue. Whenever I put it to him, "This is the heart of the issue-what would you do?", he says that it would not arise very often. It does indeed not arise very often-it is very rare-but when it does, what would he do?
Mr. Dismore: I think my right hon. Friend is putting a false prospectus before the House in this respect. My main concern is to ensure that there is an article 2 compliant investigation. I have given indications of how that can be achieved in these circumstances; it may well be that there are other ways round it. The hon. and learned Member for Beaconsfield has given my right hon. Friend a way forward by saying that if the amendments in lieu are accepted, the Bill could go back to the Lords with some reassurances to try to deal with some of these problems.
This system has operated before, in Northern Ireland. British Irish Rights Watch has written to Members to say:
"We have monitored the use of the Inquiries Act in Northern Ireland and have found it lacking in its ability to deliver truth and justice to the bereaved, build confidence in the rule of law and to comply with the UK's human rights obligations."
So this may not just be a one-off, because it has happened before in Northern Ireland on several occasions, and it has been shown not to have worked in terms of providing article 2 compliance and building confidence in the rule of law.
Mark Durkan: In relation to the experience of inquiries under the Inquiries Act 2005 in Northern Ireland, were not some of the most critical spokespersons in relation to how those inquiries worked Government Ministers themselves?
Mr. Dismore: My hon. Friend knows far more about Northern Ireland than I do, and I would certainly pray in aid his intervention in my argument.
Jenny Willott (Cardiff, Central) (LD): So far there has been only one case to which this relates-the one that the hon. Gentleman mentioned involving his constituent-and people have had to find their way through the system to be able to hold inquests in all the other cases. Does he share my concern that if there were an opt-out, we might find that under these proposals a larger number of cases were being held in secret?
Mr. Dismore: That is a real fear. My right hon. Friend rightly said that the de Menezes case was dealt with under the inquest procedure. That is because there was no other way of dealing with it. If these arrangements had been available, perhaps the de Menezes case might not have seen the light of day in the same way- similarly with the Dyson case, which dealt with depleted uranium victims from the first Gulf war, or the Mubarak case, where the Government resisted tooth and nail proper inquiries into the death of that young man in Feltham young offenders institution.
Frank Dobson (Holborn and St. Pancras) (Lab):
My hon. Friend is a lawyer and understands these things rather better than I do. Does he share the concern and puzzlement of quite a few people that in the de Menezes case, where some of the evidence was clearly related to
national security, the existing law worked, whereas in the Azelle Rodney case, where we are told that national security is not at stake, we are also told that there is something so deadly secret that it cannot be disclosed? We should bear it in mind that we were told, not on the Floor of the House but by Ministers, that there was no chance of an inquest in the de Menezes case unless we changed the law-but we did not change the law, there was an inquest, and it was carried out quite satisfactorily.
Mr. Dismore: My right hon. Friend makes his point. The Rodney case was a police operation to try to bust a drug gang. It was a very dangerous gang by the sound of it-firearms were involved-but it was not an issue of national security in terms of intercept evidence.
Given the way that the Bill is currently phrased, there will be secret inquiries at the behest of the Executive. The Executive will set the terms of reference, the Minister will choose the judge, the Minister or the judge can restrict attendance at the inquest, the Minister or the judge can restrict the disclosure or publication of evidence or documents, the Minister can redact reports and recommendations at the end of the inquiry, and the Minister can suspend the inquiry merely on the grounds that it is in the public interest to do so. That is far more broad and generous to the Secretary of State and to Ministers than the original super-inquest proposals were. That is why I am worried that there are no safeguards in the Bill that deal with this issue.
Similarly, if the inquest is resumed after the inquiry, the findings of the inquest are not allowed to be inconsistent with the outcome of the public inquiry, even if the jury comes to that conclusion. So if a judge is conducting a public inquiry and the inquest is later resumed at the behest of the coroner, the jury is not allowed to make a certain finding even if that is where the facts take it. Secret inquests are being replaced by the prospect of secret inquiries, which will not be adequate and effective investigations. They will not be independent or provide public scrutiny, and they will not involve the next of kin in the way that they should.
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In the 16th report of the Joint Committee on Human Rights, we particularly considered the use of the 2005 Act and came to the conclusion that
"any Inquiries Act 2005 inquiry specifically designed to circumvent an inquest, in order to meet the Government's concerns about disclosure of sensitive information would raise the same or similar issues as Clauses 11-12"-
"about the independence and effectiveness of that inquiry for the purposes of Article 2".
The current proposals will not give closure to relatives or create public confidence that lessons have been learned.
Are families expected to take seriously a secret inquiry chair's findings as to what happened to their loved one? It is sometimes difficult enough under the existing open arrangement to convince them that justice has been done. Are the public expected to accept the findings of a secret inquiry? We have seen the reaction that there has been to recent inquiries-the public have simply said that they have been whitewashes. That would happen particularly if reports were redacted and the family and pubic excluded from hearings or from seeing documentary or other evidence. The secret inquiries will cover exactly
the sort of cases that should be held in the open-those in which the state is potentially implicated and independence is essential.
Amendment (a) in lieu is a consequential amendment to allow for the suspension of a normal inquiry, for example into a big rail accident, in which there will be none of the implications that I have mentioned. The proposals in the Bill cannot be allowed to become part of our law. We have to provide a proper, article 2 compliant process for relatives and the public.
David Howarth: I shall deal first with the amendments tabled by the hon. Member for Hendon (Mr. Dismore), which I support, and then with the Government motion to disagree to the Lords amendment introduced by my noble Friend Baroness Miller.
I have tried to emphasise throughout the debates on this part of the Bill that the question is not whether there are circumstances in which certain things have to be heard out of the public gaze-for example, when important matters of national security arise in the course of a coronial investigation-but whether there should be a jury in important cases of deaths at the hands of state officials. That is the central question, and it is why the hon. Gentleman has to be right that it is no solution at all to move from a proposal to have inquests without a jury to one to have inquiries without a jury. That is just as bad, and as he pointed out, it is worse in many respects.
The key is public confidence. How can the public be confident when someone has died at the hands of a state official-a police officer, a prison officer or an officer of one of the security services-if the investigation into their death is carried out by someone chosen by the Government, with terms of reference chosen by the Government, and in circumstances in which, as the hon. Gentleman said, the process can be suspended by the Government? The Government could also determine the terms of the final report to some extent. The independence of such an inquiry would be suspect from the start, and the public would have no confidence in it.
Mr. Allen: Would the hon. Gentleman also say that deaths at the hands of state officials sometimes do not take place in public gunfights in broad daylight? They may take place in a cell out of the public eye, or when rendition or a severe form of interrogation such as waterboarding is taking place. Those cases are much harder to bring to public attention, so the safeguards need to be even tougher.
David Howarth: I fully take the hon. Gentleman's point. The whole purpose of investigations is to make state officials accountable in a way that they would otherwise avoid. To the extent that we do not go along the route that the hon. Member for Hendon suggests, we will allow unaccountable state action of that sort to take place.
The Government talk about national security, but as we have argued all along, there is no reason why an ordinary coroner's court could not carry out the task of protecting national security. It has the power to exclude the press and public or to issue public interest immunity certificates, and there is no reason why coroners or even juries should not be security vetted, as juries already are in espionage and treason trials. The question is, what is
the size of the risk, which the Secretary of State keeps coming back to, that there will be errors by judges or in the security vetting of juries? I believe that he exaggerates it. There must be a risk, but to exaggerate it to justify the removal of a jury from the process is the wrong way to go.
The Government keep coming back to the difference between criminal trials and coroners' proceedings, and they make the point that there is always the option of stopping a trial, whereas there is no such possibility in a coroner's inquest. That has never struck me as a particularly strong argument, because if there were a very important treason or espionage trial, how would it be in the public interest for prosecutors to believe that the right thing to do was to let someone they believed to be a spy, or worse, go free? In reality, stopping the trial is an option only in cases in which Government embarrassment is at stake, rather than real problems of spying, or worse. So that option does not really exist in criminal trials, either.
Sir Alan Beith: I have the utmost respect for my hon. Friend and his judgment, but I actually think he is wrong about this. A number of cases have arisen over the years in which prosecuting authorities, security and intelligence services and in some cases the police have had to make a judgment that proceeding would cause so much harm to the chance of collecting intelligence in future that it was not the right course of action.
David Howarth: I believe that my right hon. Friend is talking about cases that never start, but I am talking about trials that are halfway through. Perhaps we should study those cases in detail, but the cases in which that has happened have struck me as being more of a political nature than those he describes.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I am reminded of a former Foreign Secretary in the ABC case of the late '70s, who felt that he had been assured that witnesses would not be exposed. The judge took a contrary view and the Government dropped the prosecution, having maintained that it was essential for national security reasons.
David Howarth: That is the type of case I had in mind. If right hon. and hon. Members have different examples in mind, perhaps they should mention them.
I believe that for the most part, the Government are taking comfort in an illusion. The comfort that they believe they feel does not really exist, because coronial cases and criminal trial cases are much closer than they imagine. In the end, it comes down to their distrust of the jury as an institution. They keep asking themselves, "Who are these people? Where do they come from? We don't know who they are. We didn't choose them. We don't control them." Yes, but that is the whole point of a jury and it is where the public confidence in using a jury comes from-it is not made up of people under the control of the authorities. The amendments tabled by the hon. Member for Hendon are important because they would re-establish that principle.
The question is one of balancing risks and what the reality is of the risks that the Government keep putting forward. They keep giving worst-case scenarios and
presenting them as though they were inevitable and would happen on many occasions. Of course, they also say, "These things very rarely happen", so it does not strike me as an enormous risk. However, on the other side there is a risk that provisions such as those in the Bill will be used in other cases in which a jury has been used in the past. That is precisely what the debate about the Menezes case is about-the availability of such provisions and their use much more broadly than the single case to which the Government have pointed throughout the debate.
Mr. Michael Howard (Folkestone and Hythe) (Con): I am trying to follow the hon. Gentleman's argument, but I am not at all clear whether his strictures are based on the Secretary of State's reluctance to accept the amendments put forward by the hon. Member for Hendon (Mr. Dismore), or whether they relate to the admissibility of intercept evidence. If he is addressing the latter, I must say that the risk may be small and may arise out of the occasional, rare case, but very significant damage could none the less be done to our national intelligence capability. I am not clear whether the hon. Gentleman has that in mind in the strictures he is making, or whether he is limiting himself to the proposal of the hon. Member for Hendon.
David Howarth: In what I have said so far, I have spoken solely about the proposal of the hon. Member for Hendon, without considering the wiretap point, to which I will come separately. Both situations involve the same sort of judgment, although different levels of risk might be involved, as the right hon. and learned Gentleman says.
I can understand the point made by the hon. and learned Member for Beaconsfield (Mr. Grieve) about waiting for Chilcot, and the Secretary of State's argument that we cannot just insert the Chilcot criteria into the Bill; in fact, that probably would not produce the result that my noble Friend was looking for. However, some of the things I have been hearing about the legal objections to which Chilcot referred elliptically in his last report do not make any sense to me. If there are human rights objections or any sort of objections to schemes of partial disclosure, how much more do they apply to schemes of no disclosure at all? That is the argument I have been unable to follow throughout the entire debate.
I also cannot understand why anyone on the Government side, as the Secretary of State has rightly acknowledged, says that we must wait for Chilcot, because the original version of clause 13 included a scheme that would allow an inquest-admittedly a juryless inquest-to hear wiretap evidence. There are other examples of wiretap evidence being used by various tribunals-for example, in control order and financial restriction proceedings-so the Government have not waited for Chilcot and have done those things already.
This issue comes down to not trusting jurors-and, by the way, not trusting coroners. The idea is that there is some security risk specifically in the coroner's court and in the jury. The problems one hears about, such as fishing expeditions and certain information coming out if some forms of wiretap were admissible, already apply in the cases where wiretap evidence is already admissible, and would also apply under the original clause 13. It comes down to whether the Government are right to
distrust the jury in the coroner's court so much, and whether the risks arising simply from the jury are worth taking. The Government have not yet proved their case on that. How do we know that juries are so unreliable?
My view is that the House should support the amendments put forward by the hon. Member for Hendon. I do not want to take up the House's time with a Division on the Government motion to disagree, because we have already heard that the official Opposition will not be opposing it, so there is no chance of defeating the Government. However, there is a serious chance of defeating them on the hon. Gentleman's amendments, and I urge all my right hon. and hon. Friends to support those amendments in a few moments.
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