Mr.
Garnier: The point is quite simple: it may well be that a
coroner has a power to continue with a reduced number of jurors once a
jury has been assembled. There may be a statutory power that allows him
to continue with five when he has sworn six, six when he has sworn
seven and so on. While it was interesting to hear the Minister talk
about that, it does not actually have anything to do with clause 8. We
may have other opportunities to discuss her point, but talking about a
coroner’s powers to carry on with fewer jurors than he has
assembled is neither here nor there in relation to clause
8.
The
Chairman: Order. The Minister has indicated that she
intends to come back to the hon. and learned Gentleman. Knowing the
imagination and ingenuity of Committees, I am sure that there will be
other opportunities to debate the matter. I am beginning to feel a
little perplexed myself. Perhaps the time has come to accept the
Minister’s undertaking to come back on the subject, unless the
Committee wishes to press it still further, and to move
on.
Dr.
Iddon: May I have clarification on the point that I raised
a moment ago? I did not get a clear answer from the
Minister.
Bridget
Prentice: I am happy to come back to the Committee with
clarification on both points. I say to the hon. and learned Member for
Harborough that I was trying to respond to the opening remarks of the
hon. Member for North-West Norfolk regarding why we chose the numbers
that we
chose. 6.15
pm Jeremy
Wright (Rugby and Kenilworth) (Con): I may have missed the
point too, but we seem to have moved away from the key change here,
which is to reduce the number of jurors that an inquest starts with
from 11 to nine. In among all the other explanations that the Minister
was trying to give, I did not get a clear answer as to why the
Government think it necessary to reduce the starting number from 11 to
nine.
Bridget
Prentice: One of the reasons is to give more flexibility
to the coroners, because sometimes there are difficulties in assembling
juries for coroners’ inquests, so it was to give them that
little bit more space. It was as simple as that. However, I am not
going to go to the wall on the size of jury in a coroner’s
inquest. If Conservative Members want to revert to the present system,
I shall happily listen to the arguments.
Mr.
Bellingham: We are grateful for the last suggestion.
Obviously we shall not be voting against clause stand part, but we
shall be returning to the issue, because it is important. The Minister
has not answered my questions about costs. I am not convinced that
post-R. v. Middleton it is sensible to move the numbers down, so
we shall return to the issue at a later
stage. Question
put and agreed
to. Clause
8 accordingly ordered to stand part of the
Bill. Clause
9 ordered to stand part of the
Bill.
Clause
10Determinations
and findings to be
made Question
proposed, That the clause stand part of the
Bill.
Mr.
Bellingham: Clause 10 is about determinations and
findings. For what I am slightly concerned about, look at subsection
(2), which says that determinations cannot allude to any criminal or
civil liability. In fact, what clause 10(2) does is to enshrine in
primary legislation rule 42 of the Coroners Rules 1984. Could the
Minister confirm that I am right on
that? Has
the Minister seen what Inquest said about clause 10(2)? When
the words in subsection (2) were in the secondary
legislation—the same words as in rule 42—it
was held on a number of occasions that they could not defeat the
purpose to ascertain how the deceased came by their death, which is
contained in section 11 of the current Coroners Act 1988. Thus, an
unlawful killing or a neglect verdict could be returned, both of which
would, by definition, appear to determine a question of civil
liability. As presently drafted, those verdicts could be prevented by
clause 10, moreover there continues to be a debate in the courts about
whether the wording of an article 2-compliant inquest can contain
judgmental words, such as “serious” or
“unreasonable”. I do not want to delay the
Committee’s proceedings, because we have clause 11 to come to
this evening—probably the most important clause in this part of
the Bill—but could the Minister put my mind at rest, and the
concerns of
Inquest?
Bridget
Prentice: I am not sure that I shall necessarily be
capable of putting the mind of Inquest at rest, but I shall do my best
as far as the hon. Gentleman is
concerned. As
I have repeatedly said throughout the debates, coroners’
inquests are findings of fact—who the deceased was, how, where
and when he or she died, and any particulars required to allow that
death to be registered. In some circumstances, it might also cover the
circumstances by which the deceased came by his death. The most
important thing is that all those determinations have to be framed in
such a way that they do not appear to determine the question of
criminal liability on the part of a named person, or of civil
liability. It is not the job of the coroner’s inquest to
apportion blame or to decide matters of legal liability. That is for
the criminal and civil courts. In order to ensure that the distinction
between the functions of the different courts remains crystal clear,
the outcomes of any coroner’s investigations have to be framed
in the way in which they are in clause 10.
Question
put and agreed
to. Clause
10 accordingly ordered to stand part of the Bill.
Clause
11Certified
investigations: Investigation by judge, inquest without
jury
Mr.
Bellingham: I beg to move amendment 40, in
clause 11, page 6, line 4, after
‘if’, insert ‘the matter has
been referred to the Lord Chief Justice and he or she
is’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 42, in clause 11, page 6, line 6, leave
out ‘any of the reasons’ and insert ‘the
reason’. Amendment
43, in
clause 11, page 6, line 9, leave
out ‘reasons are’ and insert ‘reason
is’. Amendment
41, in clause 11, page 6, leave out
lines 12 to
16. Clause
stand
part. Amendment
63, in
clause 12, page 7, line 3, leave
out ‘Secretary of State’ and insert
‘High Court on application by the Secretary of State or
by any interested person. (1A) The court
may discontinue a certificate if it is satisfied that the certificate
is no longer necessary to prevent material or information being
disclosed whose disclosure would be seriously detrimental to national
security.’. Amendment
64, in clause
12, page 7, line 6, leave out
‘11(3)(a)’ and insert ‘[Certified
investigations](4)(b)’. Amendment
65, in
clause 12, page 7, line 9, leave
out ‘11(3)’ and insert ‘[Certified
investigations](4)(b)’. Amendment
66, in
clause 12, page 7, line 15, leave
out from ‘must’ to end of line 17 and insert
‘continue with the inquest with
the jury already
summoned.’. Amendment
67, in clause 13, page 7, leave out
lines 22 to 31 and
insert— “(d) disclosure for
the purposes of an inquest for which a certificate exists under section
11 of the Coroners and Justice Act 2009;
or’. Amendment
68, in
clause 13, page 7, line 41, after
‘Court’, insert ‘or
Coroner’. Amendment
69, in
clause 13, page 7, line 42, after
‘judge’, insert ‘or
coroner’. Amendment
125, in clause 34, page 19, leave out
lines 10 to
12. Amendment
110, in
clause 38, page 23, line 28, leave
out from ‘5’ to end of line
29. Amendment
109, in
schedule 9, page 139, line 3, leave
out from beginning to end of line 6 on page
140. New
clause 10—Certified
investigations— ‘(1)
The Secretary of State may apply to the High Court for a certificate
ordering that an inquest be held in
camera. (2) The Secretary of
State may only apply for a certificate if he is satisfied that it would
be necessary to prevent material or information being disclosed whose
disclosure would be seriously detrimental to national
security. (3) The court may
only grant the certificate if it is
satisfied— (a) that
granting the certificate is necessary to prevent material or
information being disclosed whose disclosure would be seriously
detrimental to national security;
and (b) that other measures
short of granting a certificate would not be adequate to prevent such
disclosure.
(4) Where the court grants a certificate, the
following provisions
apply— (a) Chapter 2 of
Part 3 of this Act (witness anonymity orders) shall apply as if a
coroner’s court were a court for the purposes of that Chapter,
as if the proceedings at an inquest were criminal proceedings for the
purpose of that Chapter, and as if references to the prosecutor in that
Chapter included a reference to the Secretary of
State; (b) the Lord Chief
Justice may appoint a judge of the High Court to act as coroner for the
case, and a judge so appointed shall have the same functions and powers
in relation to the body and the investigation as would be the case if
he or she were the senior coroner in whose area the body was
situated; (c) the jury may be
subject to checking in accordance with the Attorney General’s
Guidelines on Jury Checks. (5)
If a just has already been summoned when a certificate is issued, that
jury must be discharged and a new jury
summoned. (6) The certificate
may require that part of the inquest be held in camera and part in
public, and the court must only issue a certificate requiring the whole
of an inquest to be held in camera if that is necessary to prevent
material or information being disclosed whose disclosure would be
seriously detrimental to national
security. (7) Where a
certificate has been issued under this section, the coroner or judge
may at any time, taking into account whether any witness anonymity
orders have been made, admit to the proceedings any interested person
he may specify, provided that he is satisfied that doing so will not
lead to material or information being disclosed whose disclosure would
be seriously detrimental to national
security. (8) Where a decision
made by a judge conducting an investigation by virtue of this section
gives rise to an appeal under section 30, that section has effect as if
references in it to the Chief Coroner were references to a judge of the
Court of Appeal nominated by the Lord Chief
Justice. (9) A reference in
this section or section 12 to conducting an investigation, in the case
of an investigation that has already begun, is to be read as a
reference to continuing to conduct
it.’.
Mr.
Bellingham: The clause is highly controversial. It has
been the subject of a great deal of debate and a huge amount of
opposition from a great number of organisations. The provision was
contained in the Counter-Terrorism Bill, which is now the
Counter-Terrorism Act 2008. At the time, we argued that it was a step
too far. We said that it would destroy public confidence in the
coronial system. We thought that the Government had listened to us
because they withdrew the proposal from the Bill. We were very
disappointed when we saw it come back in the form of clause
11.
What the
Government are doing will undermine public confidence in the coronial
system. The public expects openness and transparency and for inquests
to be held in a totally non-confrontational environment. They also
expect to be able to know exactly what is going on. The Minister has
argued—and the Secretary of State argued on Second
Reading—that there are some inquests in which the current
safeguards to protect national security and the identity of key
personnel, and to detect crime are not adequate.
The Secretary
of State has also pointed out that two inquests have stalled because
the safeguards and arrangements are inadequate. What the Secretary of
State did not explain to the House on Second Reading was the details of
those two inquests. As an aside, he merely pointed out that two
inquests had ground to a halt. Is it really the case that those
inquests ground to a
halt because safeguards were not adequate, or was it because the
Government want to put in place a system in which everything can be
done very conveniently and easily through the certification process?
Those inquests would then be completely private, presided over by a
High Court judge. Will the
Minister elaborate as much as she possibly can on those two inquests
and tell the House why present safeguards are not adequate? I put it to
her on Second Reading that if she looked at the inquests of Jean
Charles de Menezes and, the RAF Nimrod disaster, she would find that
both covered highly delicate controversial material, and, it could be
argued, that both dealt with issues of national security. One certainly
dealt with the relationship between the UK and another country, and
both dealt with many other highly sensitive matters. However, current
safeguards were called into play. For example, public interest immunity
certificates were issued, and the police and other agents of the Crown
gave evidence behind a screen. The inquests could also be held in
camera. I argue that those inquests show that the present safeguards
work.
My concern is
simple. If the clause is enacted, it will be easy for the Secretary of
State to say that it would be convenient, and that it would be in our
interests, to close down debate, do away with transparency, and have
the inquest in secret from the word go rather than at some stage during
the hearing. The Secretary of State told me that those two inquests
would not have been affected by the proposed procedures. I do not
accept that. Ministers are suggesting a huge increase in power for the
Secretary of State.
I believe
that the clause should not remain part of the Bill, as it will
undermine public confidence in the system. The Minister’s
arguments do not stack up. Bearing that in mind, we are very concerned.
We want a system that has credibility and commands public support. We
should consider the matter from the viewpoint of the families involved
in the Nimrod disaster and the family of Jean Charles de Menezes. If
the Secretary of State had used these powers—if they had been on
the statute book—there would have been an outcry not only from
the families; there would have been a major public outcry. The
Secretary of State may save himself and other Ministers some potential
embarrassment in a small number of inquests by using those powers, but
it would undermine the entire coronial system. The system requires and
demands public support.
Those are the
reasons why we are not happy with clause 11. If the Government insist
on it remaining in place, safeguards will be needed. That is why we
tabled amendments 40 to 43. I shall consider those safeguards and what
they entail.
In amendment
40, we suggest that rather than the Secretary of State certifying an
investigation, he or she should refer the matter to the Lord Chief
Justice. The Lord Chief Justice would then have to be of the opinion
that an
“investigation
will concern...a matter that should not be made
public”. We
say that the power should not be in the hands of the Secretary of
State; he could refer a matter to the Lord Chief Justice for him to
make a decision. In that respect, amendment 40 is similar to some of
the Liberal Democrat amendments.
If the clause
remains part of the Bill, further safeguards will be needed. The
reasons on offer in the Bill for matters not to be made public are
widely framed. They are listed in subsection (2). Paragraph (a)
states: “in
order to protect the interests
of— (i)
national security,
(ii)the
relationship between the United Kingdom and another country,
or
(iii)
preventing or detecting
crime; Paragraph
(b)
states: “in
order to protect the safety of a witness or other
person”. However,
it is the last paragraph that really does it for me and for my hon. and
learned Friend the Member for Harborough. Paragraph (c)
states: “
otherwise in order to prevent real harm to the public
interest.” That,
surely, is a catch-all provision. My concern is that rather than two,
three or four inquests a year being covered by the clause, if enacted,
the number will escalate. It will be convenient for Ministers of
whatever colour to exercise those powers in order to save them, their
agents and Government officials the inconvenience of being involved in
being transparent and open.
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