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12 Nov 2009 : Column 376

Let me be very brief in response to the hon. Gentleman's intervention. Hypothetically, what he suggests is possible. [ Interruption ] The Lord Chancellor says from a sedentary position that it is what would happen, but it is a very unsatisfactory position. If the Lord Chief Justice objects in principle to the transfer, to do so by means of effectively vetoing the judge proposed as the supervising judge does not seem a satisfactory mechanism. That is why the hon. and learned Gentleman's proposal is a good one, because it would provide not entirely for an application to the Lord Chief Justice, but at least for an explanation to be made to him. In effect, the Lord Chief Justice would be given residuary power to intervene, if he believed that the Executive were abusing their position. The key issue is whether it is right for the Executive to determine that matters in respect of a death of a person as the result of the agents of the Executive should be heard not in a coroner's court but in an inquiry system held in secret. We must not forget that basic principle while considering the complexities of process.

The hon. and learned Gentleman's proposal would at least provide an additional safeguard. That is why I will support it today, and I hope that the Lord Chancellor will accept amendment (a) to finish the job. The proposals have been developed quite rapidly. I note that Lord Bach said that the Lord Chancellor was on the phone or communicating in some way with the Lord Chief Justice yesterday morning before the debate in another place. I hope that the Lord Chancellor will accept amendment (a), that it will be passed by the House and that it will be accepted by his colleagues in the other place, and therefore no further time need be lost.

Mr. Straw: I will attempt to be as brief as I can, Mr. Speaker, because other hon. Members want to take part not only in this debate but in the following one.

I am grateful to the hon. and learned Member for Beaconsfield (Mr. Grieve) for what he said about trying to adopt a constructive approach-I am at risk of complimenting him-and I accept that he has tried to do so, too. Most hon. Members accepted that we had a problem that had to be dealt with, and I assumed from the fact that the Liberal Democrats agreed with every other party in the House that they in this House also accepted that we had a problem that could not be dealt with by a normal inquest with a jury; otherwise, they would have voted for Baroness Miller's amendments, but they did not-they agreed to them, as did the rest of the House. It is very important that no myths are developed.

On the hon. and learned Gentleman's central point, yes, in my judgment as well as his, it would have been better if we could have developed a bespoke process by which the Secretary of State had to make an initial decision and go to court to get approval for it. There would have been hearings by both parties. Not only is that my position, but I developed it and it appeared in clause 11-this has been a bit like a frustration dream in which we think that we have an answer, but someone comes up with another objection-and I thought that that squared the circle. The objection, which I understand, was that that would compromise the integrity of inquests and therefore that we should go down the inquiry route. Frankly, it would not be possible in the context of the Inquiries Act 2005 to deliver in the same time the same kind of bespoke process.

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The hon. Member for Somerton and Frome (Mr. Heath) might, however, wish to take note of the fact that there are two ways-one is inherent in the administration of justice, the second is embedded in the Bill-in which the courts will be able to have what amounts to the final say over the Secretary of State's decision to make use of an inquiry under the 2005 Act for the purpose of an investigation into a death that requires an article 2 complaint investigation.

The first way is by judicial review. The Secretary of State's decision would be judicially reviewable. We have discussed that before under clause 11. It would not be as satisfactory as if we had a bespoke process whereby the Secretary of State had to go to court, but judicial review is widely used and would be available. During a judicial review, the Secretary of State would have to show the administrative court why he or she thought it necessary to exercise his or her discretion to go down the inquiry route, rather than the accepted and normal route of an inquest with a jury. I am happy to put that on the record, so that it can be used in any future judicial review. I understand the suspicions-of course I do-and I have made it clear that I am no more comfortable with the principle than are others. The fact of the matter is that the whole system, including the Secretary of State, is doing its very best to lean over backwards to ensure that a normal inquest with a jury is held in every possible circumstance. That was why one was held in the de Menezes case, notwithstanding the earlier concerns that it might not be possible to do so.

12.30 pm

The second safeguard is what has been written into the Bill. I hope that the hon. and learned Gentleman will not mind me disclosing the fact that, when we discussed the matter on Monday, he proposed an amendment that would have required the consent of the Lord Chief Justice. I accepted its purpose. I asked for it to be put in a proper form, and it duly was. That comes down to exactly the same point. It was put before the other place, and agreed there, that the third limb of the trigger sub-paragraph should be that the Lord Chief Justice must indicate

I ask the hon. and learned Gentleman not to press amendment (a) to a Division, and point out that the amendment is unnecessary. I say this in the politest possible way: we would be wasting the time of this House and the other place if he pressed it to a Division and it was agreed to. His purpose is entirely covered by proposed new sub-paragraph (1)(c).

I was asked whether I had consulted the Lord Chief Justice on the subject; I have done so. It is a very important part of the relationship between the Lord Chancellor and the senior judiciary that further details are not given; it is for the Lord Chancellor to speak for himself. However, I have consulted the Lord Chief Justice, and it would have been extraordinary if I had not done so.

Let me help the hon. Member for North-East Hertfordshire (Mr. Heald). Proposed new sub-paragraph (1)(c) says

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In the context of this debate, that means any judge. I have to go to the Lord Chief Justice on quite a regular basis to suggest the appointment of judges for particular purposes, sometimes judicial, sometimes quasi-judicial. If he disapproves of the purpose, he simply says, "You can't have this judge and, Lord Chancellor, you can't have any judge," and that is the end of the matter. The Lord Chief Justice has a complete and absolute veto in that regard, and that is how I want it to be.

Chris Huhne (Eastleigh) (LD): It would be useful if the Lord Chancellor put on record what I understood him to say earlier from a sedentary position-that the Lord Chief Justice could go on exercising that veto, should he so desire.

Mr. Straw: I am happy to put that on the record. The Lord Chief Justice could, and would, go on exercising that veto. In the real world, the way it works is that he would say, "Lord Chancellor, I do not accept that this is a proper purpose for a High Court judge, so I won't nominate anybody." If he says that, that is the end of the matter; I need to make that absolutely clear.

I plead with the hon. and learned Gentleman not to press his amendment, because if we agree to amendment (a), the matter would go to the other place, where another amendment would be passed, but that frankly detains the House and the other place quite unnecessarily. Proposed sub-paragraph (1)(c) in amendment 1B, moved by the noble Lord Bach in the other place, says that the Lord Chief Justice- [Interruption.] Might I have the attention of the hon. and learned Gentleman? The sub-paragraph says:

The paragraph in question is paragraph 3 of schedule 1. The paragraph is about suspensions pending inquiry under the 2005 Act. The hon. and learned Gentleman's point is covered by the drafting in that paragraph, so there is absolutely a belt-and-braces approach.

In the other place, my noble Friend Lord Bach referred to the fact that I intended to consult the Lord Chief Justice on the promulgation of a protocol about the exercise of discretion-the Lord Chancellor's discretion to ask for a judge, and the Lord Chief Justice's discretion to agree, or otherwise, to the appointment of a judge. It might also be appropriate for such a protocol to consider the circumstances in which the Home Secretary or Defence Secretary of the day would wish to trigger an inquiry in the first place.

I should like to put on record a point relating to an issue that has not been discussed at any length in this place. Under the 2005 Act, there is provision for a Secretary of State, having appointed an inquiry, to issue directions to it, once it is running. That is because certain inquiries of a quasi-judicial nature may-without going into any detail-get out of hand, take too long, spend too much money, and end up not producing a product, and directions could be needed. An inquiry under the Bill would be not a quasi-judicial inquiry, but a judicial inquiry. I therefore accept that the issue of directions by the Secretary of State, after an appointment has been made and an inquiry established, would be inappropriate. It would be interference in a judicial process. I am happy to put that on the record. The Lord
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Chief Justice would, in any case, wish to take those matters into account when coming to a decision on whether to appoint a particular judge, or any other judge.

Mr. Grieve: I am grateful to the Secretary of State for having put on the record so clearly the issues surrounding the protocol and the protections that he intends to put in the Bill, but he may agree that amendment (a) does no harm. Its merit is that it focuses on the issue of the suspension of the coroner's inquiry. For that reason, I again press him to agree that there is a really good reason for agreeing to the amendment. It provides reassurance that the Lord Chief Justice will consider the full panoply of issues, and not just one discrete area. I make that point notwithstanding what I accept of the argument with which the Secretary of State is trying to reassure the House.

Mr. Straw: We all agree that the Lord Chief Justice, when deciding whether to appoint a particular judge, any other judge or no judge, will want to take into account whether he is satisfied that the normal inquest should be suspended. How else could he make a decision? My plea to the House is to bear in mind that there is no substantive difference between the two sides of the Chamber on the issue. We would waste time if amendment (a) were agreed to, because the matter would have to go to the other place and come back again. The hon. and learned Gentleman's point is covered by amendment 1B, with which we agree-let me just make that clear. There is no point in legislating unnecessarily. That amendment already says:

The purposes of that paragraph-paragraph 3 to schedule 1 -is as clear as a pikestaff, because its heading is "Suspension pending inquiry under Inquiries Act 2005".

I think that I have made my point. I urge the hon. and learned Gentleman to recognise that I have given him 100 per cent. reassurance about the purpose of paragraph 3. I hope that we can make the rest of this debate very short, and get on to the next issue.

Mr. Heald: The Secretary of State for Justice and Lord Chancellor has made a strong case for his view that the Lords amendment already goes far enough, but I am sorry to tell him that I still have doubts about that. The crucial thing about a coroner is that he is an independent judge who investigates and decides who a person was, whether they died, and if they did, why they died, or what they died of. That role goes back in our history to a time when this country was very troubled, and important people felt that they might be able to take the law into their own hands. It has been an important protection for our people, going back centuries.

It is clear from schedule 1 that we suspend coroners' investigations only in rare and important circumstances. If somebody is charged with murder, the coroner's investigation will be suspended so that there can be a fair criminal trial. There are also other limited circumstances in which that would happen. It has been a principle for a very long time that one does not suspend a coroner's investigation except in very important circumstances. We are facing threats of terrorism, which can lead to deaths, and a war in Afghanistan, which can lead to
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deaths, and sometimes the circumstances of those deaths may be of embarrassment to the Government and to the powers that be. From the very beginning, therefore, the worry with the Bill has been that in those circumstances, there might be a desire for a secret process that is not as open as a coroner's inquest. It is therefore good that we have been able to debate the issue over a period to try to reach the point where a coroner's investigation cannot be stopped by ministerial fiat.

That concern has boiled down to the situation before us, where it is accepted that there might be an inquiry-rather than an inquest-and, therefore, a suspension, whereby the investigation might need to be taken in private. The only example that I can think of is when something like intercept evidence is involved, and I think that the hon. Member for Hendon (Mr. Dismore) takes the same view.

That brings us to the amendments. The lock, which the Lord Chancellor has proposed, is that it would be for the Lord Chancellor to decide whether to suspend the inquest and have an inquiry; a senior judge would then be appointed as chairman of the inquiry; but the Lord Chief Justice would be able to indicate that he did not want to approve the appointment of that judge. As the Justice Secretary and Lord Chancellor has said, that could mean any judge, but the solution that my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) suggests in amendment (a) is a far less cumbersome mechanism. Proposed new paragraph 1(1)(d) of schedule 1 would make it clear from the outset that the Lord Chief Justice had to give approval not just to the appointment of that judge, but to the suspension of the inquest. That is a different question.

Mr. Straw: I have said this about 15 times, but the Lord Chief Justice would not appoint that judge or any judge unless he were satisfied about the case for suspending the inquest. Why would he? He would have an absolute right to a veto under the amendment already agreed to in the other place.

Mr. Heald: The Lord Chancellor and I may have to disagree on that point, but I believe that the decision about whether to suspend the inquest is different from the decision about whether to appoint a judge. The Lord Chancellor might take the view that the suspension is proper and the Lord Chief Justice might not agree, but he might none the less agree to the appointment of the judge if he feels that that is a broadly acceptable decision.

Mr. Straw: This issue is really important, because Lords amendment 1B would amend paragraph 3(1) of schedule 1 so that it stated:

the Inquiries Act 2005-

The senior judge could not be appointed unless the Lord Chief Justice had consented. He would have an absolute lock on that, under the Lords amendment, and I promise the hon. Gentleman that that is the case.

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Mr. Heald: I do not disagree with that, but what is the material on which the Lord Chief Justice will make his decision, and what will be the grounds for it? If he has to decide whether to appoint a judge to an inquiry, his view about the criteria, the material that he wants to see and so on may be different from his view if he has to second-guess and decide whether to suspend an inquest. They are not the same question. The Lord Chancellor assures me that they are the same question and all the same thing, but it does not say that anywhere. The criteria for the Lord Chief Justice to make his decision about the appointment of the judge are not set down anywhere, but the extra lock, which my hon. and learned Friend proposes, makes the matter absolutely clear.

Amendment (a) says that the Lord Chief Justice would have to approve not only the appointment of the judge, but the investigation's suspension. They are different questions, but that amendment would cover them completely and mean that, in future, an unsatisfactory decision could not be made.

12.45 pm

Mr. Dismore: My main concern throughout this long-running debate, going right back to the counter-terrorism legislation, has been whether we will have an article 2-compliant process. I am still not entirely convinced-even with the Lords amendment and, indeed, amendment (a) from the Opposition Front-Bench team-that we will end up with an article 2-compliant process. However, I shall not go into that in more detail, because we have debated it at great length.

My first point, which I put to the hon. and learned Member for Beaconsfield (Mr. Grieve) in my intervention, is about the lack of a trigger mechanism. It would be very helpful if my right hon. Friend the Justice Secretary said that the only circumstance in which he can envisage the power being used is if an intercept question has to be resolved. That would go a long way to providing satisfaction.

The real issue is about the lack of safeguards, and, if I compare the original proposals for civil inquests with today's proposals on judicial oversight, I am not sure that we have moved a great deal further on. My right hon. Friend says that the decision to request that a coroner suspend an inquest would be subject to judicial review, but that is a narrow test-certainly narrower than the Opposition's proposal for, effectively, the suspension's approval by the Lord Chief Justice.

I follow my right hon. Friend's argument about whether proposed new paragraph 1(1)(c) of schedule 1 cross-refers with the original process, but my main concern is that we could end up in limbo: on the one hand, the Lord Chancellor would say, "We want a secret inquest"; and on the other, the Lord Chief Justice would say, "You can't have a judge for it". We would be left in limbo, because there would be no way of resolving that issue. The beauty of the proposal from the hon. and learned Member for Beaconsfield, however, is that it would resolve the issue, by stating that the inquest could not be suspended unless the Lord Chief Justice had approved the decision. That would represent a much broader test than the judicial review test, because the Lord Chief Justice would be able to look at all the evidence-including the secret evidence that might not be admissible in a judicial review application.

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