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12 noon
Mr. Dominic Grieve (Beaconsfield) (Con): I beg to move amendment (a) to Lords amendment 1B.
Mr. Speaker: With this, it will be convenient to take the Government motion to agree with Lords amendment 1B.
Mr. Grieve: When this matter was last before the House, there was an extensive debate about whether the Bill contained sufficient safeguards in respect of converting an inquest process, which would be open and with a jury, into an inquiry process, part of which might have to take place in secret to allow intercept evidence to be used. There has been a lengthy debate while the matter has gone through the House, but the Secretary of State and Lord Chancellor knows that there was widespread unease about the provisions, and the vote that was eventually held was extremely close.
At the outset, I want to say that I am grateful that the Secretary of State took on board the concerns that were being expressed. When the matter went back to the other place, he tabled an amendment that, although far from perfect, went a long way towards solving the problem that was causing concern. The amendment proposed that the Lord Chief Justice must indicate to the Lord Chancellor his approval for moving to an inquiry following the appointment of the judge who is to carry it out. My noble Friends in the other place took the view that the correct position was to abstain on the subsequent vote.
I shall outline the potential problems with that amendment. First, as the Secretary of State knows, the view that I have expressed consistently and which I have discussed with him is that, in an ideal world, it would be better if the process by which one moved from an inquest to an inquiry were subject to full judicial scrutiny. In addition, I believe that the Secretary of State should have to apply to the court for approval, as that would allow full scrutiny to take place. That has not happened, but I do not think that there is much point in going over old ground as to why. I spent part of yesterday evening looking for a way to get around the problem, such as tabling a provision that would enable a full application process to take place, but the advice that I received was that that would be impossible at this late stage of the Bill.
Mr. Andrew Dismore (Hendon) (Lab): The hon. and learned Gentleman has come up with an interesting formulation, but does he agree that there are no safeguards on the face of the Bill? Last time, the debate was focused almost entirely on the question of intercept. Would it not have been better to include a provision in the Bill that secret inquiries could be held only when intercept was the only matter at issue?
Mr. Grieve: The hon. Gentleman makes a powerful and important point. Given the problems, it could be that intercept might be the only possible trigger for such an inquiry, but I take his point. When I look back on the Bill's passage through the House, there have been difficulties in focusing on the key ways to resolve this issue. As I have told the Secretary of State, I have always had some sympathy for the Government's difficulty in this regard. We have at times been in danger of saying that we will never have anything other than an open inquest, but that would be to miss the Government's difficulty, especially in light of the Chilcot report
Mr. David Heath (Somerton and Frome) (LD): The hon. Member for Hendon (Mr. Dismore) has raised a good point, but the beauty of the amendment that we are considering is that the Lord Chief Justice would be in a position to say that he would accept a transfer only when intercept evidence was involved.
Mr. Grieve: The hon. Gentleman has anticipated me by a few sentences, and I shall deal with that point in a moment.
David Davis (Haltemprice and Howden) (Con): I wonder whether my hon. and learned Friend can give me an assurance about what would happen in the event of a Conservative Government taking office after the next election. At some point, the Chilcot inquiry will produce a proposal to allow intercept to be used in court. If it transpires that intercept is the only issue that causes the Government to require a secret inquiry of some sort or another, will he give me an undertaking that we would change the law to remove unnecessary secret inquiries?
Mr. Grieve: My right hon. Friend and I have worked on this together, and he knows that the Opposition have long been consistent in our desire to see intercept evidence being available to prosecute prisoners and in other settings, including inquests. That remains our commitment, and that is why my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) sits on the Chilcot committee. I cannot predict what the outcome of that committee will be, but the Conservative party will retain its commitment to try and bring this desirable end about.
It is unfortunate in the extreme if people who could be prosecuted are not prosecuted because intercept evidence cannot be used. Equally, it is extremely unfortunate if intercept evidence that could help to clarify matters in an inquest cannot be used for the same reason. Therefore, I can give my right hon. Friend the Member for Haltemprice and Howden (David Davis) the assurance that our commitment in that regard remains as strong as ever, but obviously we will have to listen to what the Chilcot committee says.
Mr. Oliver Heald (North-East Hertfordshire) (Con): Will my hon. and learned Friend explain, in light of his amendment, the grounds on which the Lord Chief Justice would exercise his discretion to indicate approval or not? The Bill does not seem to contain anything solid that might tell the Lord Chief Justice how to approach that.
Mr. Grieve: My hon. Friend is right, and that is the next point that I want to address.
The Government came up with their amendment in the other place, but my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) is right that it proposes a full judicial scrutiny process, with a Minister making an application to a court in a hearing at which interested parties can make representations. I would have preferred that. As I said earlier, if I had had the opportunity to table an amendment to that effect yesterday evening, I would have done so, but I must accept that it is now impossible procedurally to achieve that desirable end. Indeed, that is what the Secretary of State told me, and I do not think that he was trying to pull the wool over my eyes.
Essentially, amendment 1B is a fall-back position, and my hon. Friend the Member for North-East Hertfordshire is right that it raises questions. It seems to me that, in effect, it asks the Lord Chief Justice to take an administrative rather than a judicial decision-based, I suppose, on his independence and sagacity-because the Lord Chancellor has to get his agreement to a transfer from inquest to inquiry.
In the other place, Lord Mackay of Clashfern raised that concern specifically. He said:
"I assume-I hope this is correct-that the Government consulted the Lord Chief Justice when they put forward this proposal, so that he knows about it and is willing to undertake this extremely important judgment at the stage when it is supposed to be made."-[ Official Report, House of Lords, 11 November 2009; Vol. 714, c. 830.]
He also pointed out that if the Lord Chief Justice were to decline to move from inquest to inquiry it would be, he assumed, the end of the matter.
In reply, Lord Bach made it clear that the Lord Chief Justice was aware of the proposal and-I infer-has not expressed the view that he could not undertake that role. At the same time, it is also clear that he would have the final say in the matter. Quite a lot of the debate in the other place was taken up with Lord Bach seeking to provide reassurance to the noble Lords that the procedure being proposed genuinely involved giving the Lord Chief Justice an effective veto over whether the shift would take place.
For the reasons that I have already given, I hope that we are not putting on the Lord Chief Justice a burden that we should not place on him. I have a residual anxiety about that. Secondly, I had anxieties when the proposal went to the other place that the wording was such that the Government amendment could be construed as amounting to no more than an ability to say, "You can't have such a judge", and that another name would be put up automatically rather than giving the Lord Chief Justice a genuine veto over the process. Such was the extent of my anxiety that while the proposal was in the other place, I sought at the last minute to change the wording from "that judge" to "a judge". The Government's response was that that was not necessary. A series of assurances were given during the debate, which I am sure that the Secretary of State will repeat, to the effect that what was intended was a genuine judicial lock through the Lord Chief Justice.
I repeat that I am grateful that the Secretary of State has listened. Notwithstanding that, however, I hope that he will not take it amiss that I have tabled a further amendment. The reason for doing so was that if the
Government's intention is correct and their drafting is right, the further amendment cannot be regarded as anything other than affirming their amendment-it is innocuous in intention; it will not wreck or damage the Government's proposal; and it will not cause the Government any further problem.
Our amendment (a) makes it clear that the approval is not just about the start of the judicial process for the inquiry and the appointment of the judge, but that the Lord Chief Justice also has to indicate approval for the Lord Chancellor to request the coroner to suspend the investigation. As the hon. Member for Somerton and Frome (Mr. Heath) rightly said a moment ago, that provides slightly wider discretion in the consideration of what the issues might be and-to pick up the point made by the hon. Member for Hendon (Mr. Dismore)-ensures that the grounds on which we move from inquest to inquiry are very narrow.
I am sorry that the amendment was tabled at such a late stage, but we are in this place to do our job right to the end. For the reasons that I have set out, I think the amendment is a real improvement that I hope the Government can accept.
Mr. Heald: Does my hon. and learned Friend think that the consequence of his amendment (a) would be that more information will have to be provided to the Lord Chief Justice than otherwise? Clearly, in deciding the identity and approving the judge, one set of criteria would be important-namely, that the appointment is suitable-but whether the suspension should occur is a slightly wider question. Does my hon. and learned Friend think his proposal would affect the material on which the decision would be made?
12.15 pm
Mr. Grieve: Again, my hon. Friend has made a good point. One of the deficiencies of the system that the Government have decided to adopt-although at this late stage, it is the best that we shall get-is that the nature of the communications that would take place between the Lord Chancellor and the Lord Chief Justice is not clear. Lord Bach tried to set out something of the procedure, but it is clear that to a degree it would be marked by exchange of letters and, possibly, a meeting. He made it clear that the exchange of letters is unlikely subsequently to be made public, which is something that I have to accept in view of the system that has been set up. It thus puts a considerable burden on the Lord Chief Justice. However, mindful of the fact that I have been given a very clear indication that he is willing to take that burden on board, I think that to provide the public with some degree of reassurance that the process will not be hijacked by politicians, we have to accept that it is the best we can get.
I agree with my hon. Friend on a move to a much more formalised application system. Indeed, were I ever to succeed in the private Member's Bill ballot, that might be a fertile measure to bring forward, particularly in view of the Secretary of State's agreement that such a system would be a more desirable way to proceed. On the face of it, the proposal appears to command approval across the House, which is the first precondition for getting a private Member's Bill on to the statute book. My hon. Friend has made a very important point.
The proposal is not perfect-at the end of the day there is no perfection in any of these things-and I sympathise with the Government, because I recognise that they have a real and not a manufactured problem. I am sorry that we have reached this stage of the Bill without doing better, but at this stage I believe that the Government amendment, which was offered and passed in the other place, is a considerable improvement. I further believe that my amendment to that amendment is just an additional safeguard and reassurance. For that reason, I very much hope that the Secretary of State will accept it. We could then finish the Bill on a note of consensus, which we have frequently striven to achieve.
Mr. Heath: I am a little surprised to be called ahead of the Lord Chancellor, but I am grateful for the opportunity to say a few words.
At this stage of a Bill, it worries me that expediency and pragmatism often take over from principle and legal accuracy, and we end up with statutes that are often a process of negotiation rather than what any party to the negotiation would like in the Bill. I am concerned that that is precisely what is happening with this Bill. Later we shall reach a point where the Government, having marched their troops to the top of the hill, will proceed to march them down again-yet again, which I regret. However, despite the fact that in a moment I shall be supporting the hon. and learned Member for Beaconsfield (Mr. Grieve) to indicate that I think that, at least in this House, he is doing something valuable, I have to say that I regret entirely the fact that after a very close vote in this House on the key issue, on the basis of the words in lieu moved by the hon. Member for Hendon (Mr. Dismore), the hon. and learned Gentleman's colleagues in the other place felt that they could contribute nothing whatsoever to the debate. Indeed, Lord Henley said:
"For us, to oppose it at this stage or to support it would not be the right way".-[ Official Report, House of Lords, 11 November 2009; Vol. 714, c. 829.]
What sort of loyal Opposition cannot even decide whether they support or oppose a key part of a Bill on which there was a close Division in this Chamber?
The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): As the hon. Gentleman is pleading-improbably-the consistency of the Liberal Democrat party, can he explain how last week in the other place, Baroness Miller managed to get through a comprehensive set of proposals that would have allowed intercept evidence to be adduced in coroners' inquests? That was far more significant than the amendment proposed by my hon. Friend the Member for Hendon (Mr. Dismore). In the event, that amendment would have been of little significance although it would have made for defective legislation. The Liberal Democrats marched their troops up the hill in the other place to get those proposals through, yet in this place they sat on their hands and by doing so agreed to the Government's position, and that of the Opposition, that the amendments were barking mad and should not go through. Can he explain that inconsistency?
Mr. Heath: To say that we sat on our hands when we supported in a very close Division the proposals of the hon. Member for Hendon seems a most extraordinary position for the Lord Chancellor to take, but rather than pursue an utterly sterile argument-
Mr. Straw: Well, you raised it.
Mr. Heath: And I am perfectly happy to continue to raise it, except that it is not the matter before us today, but if we had secured a majority in the House that we so nearly secured in support of the proposal of the hon. Member for Hendon, I would have considered that a satisfactory outcome. If we had succeeded in having the support of the Conservative party in another place for the amendments that my noble Friend tabled yesterday, we might have had a more satisfactory outcome. Neither circumstance applied because of the pragmatism and expediency that so often characterises the latter stages of a Bill.
Mr. Grieve: I do not wish to get involved in a spat with the hon. Gentleman, but when we debated the matter on the last occasion, I could not have made clearer my reservations about the amendments that we were to vote on. I made it clear that the reason why we would support those amendments was that we wanted to prolong the debate to try to resolve the issue, although I recognise that those amendments raised as many questions as they solved.
Mr. Heath: Very well, let us accept what the hon. and learned Gentleman has said, and let us move on to the substance of the current proposal. I do not think that Lords amendment 1B quite counts as Government plan B-it is probably plan C or D at this stage-but it is the alternative formulation that was presented to another place. Notwithstanding my reservations about the whole process, we must consider the proposal's merits. It will introduce a lock of sorts, but it is a very deficient lock, as it will provide only one circumstance in which the Lord Chief Justice can intervene, which is in the choice of the judge who will officiate. That lock seems inadequate, because it does not allow for the circumstances in which the Executive have chosen to put this matter into the hands of a secret inquiry to be considered by the judiciary. If that route were followed, like the hon. and learned Gentleman, I would prefer a proper process of application. That is not what is proposed, but nor is it proposed that the Lord Chief Justice will have at his disposal any of the reasoning behind the transfer in any case. His decision will be based simply on, as was described earlier, an administrative matter of whom the officiating judicial official should be.
Mr. Heald: Does the hon. Gentleman think that there will be a full lock in the sense that the Lord Chief Justice could continue to refuse to accept the appointment of any judge-in effect, refusing one after another-thus dealing with the point made by my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve)?
Mr. Speaker: Order. The hon. Member for Somerton and Frome (Mr. Heath) has been extremely brief so far in his remarks-this is in no way a criticism-but I am conscious that some Back-Bench Members want not merely to intervene but perhaps to make speeches, if there is time. We have until 1 o'clock to consider this matter. The Lord Chancellor's views will be sought shortly, and I hope that Front-Bench Members can bear in mind that consideration.
Mr. Heath: I certainly will, Mr. Speaker. I often accept interventions in order to allow colleagues to get their points on record.
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