Mr.
Boswell: Is my hon. and learned Friend not concerned that
a photographic record of a police constable who was allegedly
committing misconduct against a member of the general
public—beating them up, for example—might also be
confiscated on the ground that it might prejudice the
constable’s personal
security?
Mr.
Garnier: Those sorts of dangers are precisely the reason
why we should beware of such ill-thought-out legislation. It is ironic
that we have a Government who seem to want to pry into our private
lives. We have
CCTV, and identity cards, which require the creation of the national
identity register into which our private information is deposited, and
we cannot audit the information trail. We see all sorts of other ways
in which the Government have reversed the balance of power and the
relationship between the citizen and the state over the past 10 or so
years. In this Bill, the Government are saying that the public cannot
see what they are doing or have done when it comes to the deaths of our
citizens at the hands of the agents of the state. They say,
“Don’t worry, a certificate will be issued. If somebody
thinks that the certificate has been issued improperly or wrongly or
under some error of law, the affected parties can apply to the High
Court for judicial review.” However, judicial review does not go
into the substance of the issue; it merely considers the
process. As
long as the Secretary of State has complied with the procedure that
flows from clause 11, the High Court is unlikely to be able to do much
about it. Lord Bingham, the retired senior Law Lord, wrote about it in
The Guardian on 17 February.
[Interruption.] I know it is amusing when members
of the Conservative party in pinstriped suits quote articles from
The Guardian, and when judges at the top of their tree
are forced to express themselves through the columns of a newspaper
that some people might think has a rather different point of view from
theirs.
Alun
Michael (Cardiff, South and Penarth) (Lab/Co-op): What was
the nature of the personal constraint that leads to the use of the
words “forced to”?
Mr.
Garnier: The right hon. Gentleman is right to pick me up
on the word “forced”—nobody held a gun to Lord
Bingham’s head as he typed out his article. It was a rhetorical
flourish. I am glad that the rhetorical and right hon. Gentleman, who
has never, as the Americans say, “misspoken”, picked me
up on that. Forgive me, Mr. Cook, if I ever accused a
Welshman of talking too much or inaccurately. I trust I will never fall
foul of that.
Let me quote
what Lord Bingham said in his piece in The Guardian on 17
February. It is headlined, “Judges possess the weapon to
challenge surveillance. The British are the most spied-upon people in
the democratic world, but only the judiciary can restrain
Parliament.” There is a perfectly good argument to be had about
where the balance should properly lie between Parliament and the
judiciary. Sometimes we get it right, and sometimes we get it wrong. I
am concerned that the judiciary will not be able to exercise any proper
balancing act or controlling power if clause 11 goes through, either as
currently drafted or at all. In his piece, Lord Bingham
said: “If,
historically, the record of British judges as defenders of personal
liberty has been patchy, the tools at their disposal were rather
limited. They could, in case of doubt, interpret parliamentary
enactments on the assumption that parliament did not intend to infringe
rights and freedoms; yet if the enactment was clear and unambiguous,
they had no choice but to give it effect. But the rules of the game
have changed - if not in the sense or direction that Tony Blair had in
mind when using that expression - for parliament has, in the Human
Rights Act 1998, instructed the judges to protect the main rights and
freedoms enshrined in the
European Convention on Human Rights, providing a much more comprehensive
framework of principles than judges have been able to invoke
before.” A
whole raft of arguments based on article 2 of the European convention
emerge out of the current clause 11. A further set of arguments emerge
out of clause 11(2)(c), in which we are told that the Secretary of
State may cite as one of the reasons behind his certificate to hold a
secret
inquest, “otherwise
in order to prevent real harm to the public
interest.” That
could mean anything and nothing, and it seems that Lord Bingham is
entirely right when he says that out of the Justice Secretary’s
Human Rights Act, which he introduced as Home Secretary in 1998, judges
have been instructed to protect the main rights and freedoms enshrined
under the convention. I have a suspicion that we will see tears before
bedtime if clause 11 goes on to the statute book, because it will
provide opportunities for arguments under the convention via the Human
Rights Act, which will lead to the Government having to explain why
they passed this Bill in this form. It cannot be said that they have
not been warned—not just by members of the Committee, but by
other commentators as
well. 10.45
am Jeremy
Wright (Rugby and Kenilworth) (Con): On my hon. and
learned Friend’s point about the possible interpretation of
subsection 2(c), is it the case that we may have a similar problem
regarding the lack of definitions for “substantial” and
“real”? Does “real”, in the current
context, mean a substantial, notifiable, obvious and definite threat,
or does it mean something more than just insubstantial, as they are two
different
concepts?
Mr.
Garnier: Indeed, they are, but I feel that we will be
boxed in by the power of the Secretary of State to self-certify. If he
said, in a memorandum to the court, that there was a real harm to the
public interest through the exposure of certain evidence or processes
to the public gaze, then, just as in the Court of Appeal case last week
regarding Binyam Mohamed, the court would be reluctant to go behind
that certificate. If we let the clause go through, we are voluntarily
giving the Secretary of State a power to restrain the courts from
policing him. As democrats, and as people who respect the proper
balance between the different elements of the constitution, we should
be extremely careful before allowing any Secretary of State, of any
political party, those sorts of powers. As night follows day, we will
end up in the position similar to that under the Counter-Terrorism Act
2008, as I described, in which perfectly innocent and sensible
activities are suppressed at the say-so of a police constable—it
is not the same, but it is of similar character. I urge the Committee
to be extremely cautious when allowing the clause, as it is currently
drafted, on to the statute
book. Mr.
George Howarth (Knowsley, North and Sefton, East) (Lab): I
have listened carefully to the hon. and learned Gentleman. Is he
saying—I would agree with him if he was—that the problem
lies entirely with subsection (2)(c)? If so, does he accept that the
reasons set out in subsections (2)(a) and (b) are clear and
acceptable?
Mr.
Garnier: The right hon. Gentleman is right that subsection
2(c) ought to be excised, but that is not the only cause of complaint.
As is clear from the arguments of my hon. Friend the Member for
North-West Norfolk and the hon. Member for Cambridge, there are much
wider and deeper concerns—although the right hon. Gentleman
highlights a particularly good reason for not letting the clause go
through. It
seems that we are worried about how the Secretary of State can
self-certify, and be policed by the courts only under judicial review.
It also seems that the removal of the jury is a cause of great concern,
and that we are giving to the state—this is not a party
political point—powers over the citizen that should be wrested
from the citizen with only the greatest reluctance and at times and in
circumstances of particular exceptionality. It seems that none of the
arguments that I have heard so far from the Government, trailed in
advance of Committee, seem to meet the point, but I accept that the
Minister will respond to the arguments raised against the clause so
far. I
do not shrink from admitting that over the course of this weekend, I
read a new briefing from Inquest, which adds to the one that it gave
earlier in the process of the Bill. I hope that the Minister has read
the briefing, and is in a position to respond in detail to the cogent
points that are made by the brief. If she had, she would realise that
there is a mass of rational arguments, which should cause great
concern, and lead her to think again about the clause. The brief
extends to 15 pages, and I would be testing the patience of the
Committee to recite it all. The issues in clause 11 are some of the
most important that we must deal with as legislators during the passage
of this extraordinary Bill. It may well be that other clauses dealing
with coroners, although important, do not hold the same concern for the
relationship between the state and the citizen as clause 11
does. As
my hon. Friend the Member for North-West Norfolk said at the beginning
of our debate on 10 February, the Government, through the
Secretary of State, made it clear that there are two cases that are so
contentious or secret that, if there are to be inquests dealing with
such deaths, a provision such as clause 11 would be necessary. The
Secretary of State rather beguilingly said, “Well, if you can
come up with something better than clause 11, I would listen to
it.” However, the short point is that the Government do not
appear to want to move from the broad position that the Secretary of
State should have the ability to self-certify, that the policing of
that certification should be by judicial review only and that that
should be the only involvement of the court—inquests of this
nature, for the reasons set out in subsection (2), should be held out
of the public gaze, under the chairmanship of a High Court
judge. If
there are only two cases, and the Inquest brief mentions only
one— Mr.
James Gray (North Wiltshire) (Con): Two in
fact.
Mr.
Garnier: Does it mention both? I shall come back to that.
Inquest mentions the case of Azelle Rodney in the following
terms: “Azelle
Rodney died in April 2005 after a police operation in north London in
which he was shot seven times—the circumstances surrounding his
shooting had nothing to do with counter terrorism”,
or national security,
but involved criminal
allegations. “Azelle
was shot after the car he was in was ordered to ‘hard
stop’ after being under police surveillance for more than three
hours” in
Edgware. “In
July 2006 the...CPS announced that there was insufficient evidence
for a successful prosecution. After the CPS decision, the family was
told by the coroner that the full inquest could not be held because
large portions of the police officers’ statements had been
crossed out under the Regulation of Investigatory Powers
Act...2000, which covers information obtained from covert
surveillance devices such as telephone taps or bugs. Lawyers acting for
the family of Azelle Rodney threatened to take the government to court
to show that RIPA was in breach of the Human Rights Act
1998.” It
is not controversial, in so far as it has been said before, but Inquest
and a lot of us believe that clause 11 is a disproportionate and
draconian measure. It falsely equates the existence of material that
should not be made public with the need to remove a jury and give the
Secretary of State unprecedented and wide-reaching powers to intervene
in the investigation of contentious
deaths.
Mr.
David Kidney (Stafford) (Lab): Is the hon. and learned
Gentleman identifying himself with the strong language that he has just
read out from Inquest? When the hon. Member for North-West Norfolk
presented the Conservative amendment about a High Court judge giving or
not giving a certificate to the Secretary of State, I thought that the
hon. and learned Gentleman was with the Government on the public policy
objective, but he now seems to have identified himself as totally
against.
Mr.
Garnier: No, the hon. Gentleman is over-interpreting what
I have said. My hon. Friend and I are both concerned that the public
should have access to the coronial system and about the device that the
Government wish to use in order to protect national security and
information that ought to be kept secret. In parenthesis, he, the hon.
Member for Cambridge and I are not so naive as to think that all
secret, security service information can be revealed to the public by a
coroner’s court inquest. However, as the hon. Member for
Cambridge said with perfect common sense at the previous sitting,
espionage trials at the Old Bailey sometimes include juries, juries
that are vetted, and counsel for both the Crown and for the defence who
have been vetted. Indeed, counsel for the defence is provided by the
Government or the Crown Prosecution Service with secure safes in which
to keep sensitive material, so that it does not fall into the wrong
hands.
We have
existing procedures in the criminal justice system that make justice
possible, and that are, yes, partly in private, but that are much more
open than the system that the Secretary of States wishes to implement
under clause 11. If I can propose something more akin to the system
used by the criminal courts when dealing with espionage and other cases
in the coronial system, I hope that Labour members of the Committee
will come some way towards me. By voting against clause 11 stand part
and in favour of the amendments, we shall have a better and more
sensible clause for discussion on Report or in the other place when the
Government have had more time to think about
matters. There
are huge implications under article 2 of the convention. It is well
established that, whenever state bodies or agents bear responsibility
for a death, a
procedural duty to investigate the death arises under article 2, but
clause 11 does not fulfil those obligations. I am interested to hear
the Minister’s advice about section 19 approval by the Secretary
of State on the front of the Bill. That statement has almost become a
pro forma. It is rubber-stamped on the front of all Bills, but it
strikes me that sections of the Regulation of Investigatory Powers Act
2000, this Bill and many others that I have had the misfortune to have
to read during the past few years are in flagrant breach of the Human
Rights Act and the convention. Some of those pieces of legislation have
been found to be so by our higher courts, yet the Government have
carried on busily stamping section 19 approval all over their
legislation. In
respect of article 2 in relation to coroners and the case of the Crown
ex parte Amin v. Home Secretary in 2003, Lord Bingham in his
capacity as a Law Lord listed the purposes of an article 2 compliant
investigation. He said that it was, first,
“to ensure as
far as possible that the full facts are brought to
light”; secondly, “that
culpable and discreditable conduct is exposed and brought to public
notice”; thirdly, “that
suspicion of deliberate wrongdoing (if unjustified) is
allayed”; fourthly, “that
dangerous practices and procedures are
rectified”, and,
fifthly, “that
those who have lost their relative may at least have the satisfaction
of knowing that lessons learned from his death may save the lives of
others.” He
said
that “Given
that the ECHR requirement is for a public investigation, for purpose 1
to have any meaning, ‘brought to light’ must be
interpreted as exposed to public
scrutiny”. I
return to the intervention by the hon. Member for Stafford. There will
be circumstances in which the full facts cannot be brought to light,
which I touched on when I referred to the criminal trial process and
espionage trials. The full facts need to be brought to light, but that
might not be covered by the expression, “the full glare of the
public domain”. By having judges sitting in private without
families, interested parties and the public having much in the way of
access to what goes on, we are allowing the Government to make a huge
mistake. If we think that that is compliant with article 2, we have
either not read the article and understood it, or we have not followed
the judgment of Lord Bingham in the case of Amin. It is strange that we
are passing yet another restrictive law at a time when the
public’s attention is focused on the delicate relationship
between the state, its agents and the citizen. I want a public
examination of the core facts surrounding the circumstances of a death.
We should not allow anything that is counter to the public need to
ensure that deliberate wrongdoing is
suspected. The
de Menezes case has obviously been the subject of huge public
controversy. A number of Committee members have asked—either
rhetorically or in direct interventions, on Second Reading or during
the course of these proceedings—whether clause 11 would cover a
de Menezes-type inquest. It is clear that the procedure
used in that inquest did not require a clause 11-type investigation.
There, we had a High Court judge sitting as the coroner, but we also
had a jury and witness-anonymity orders. A number of the police
officers who were implicated in the death of the deceased were able to
appear by letter as opposed to their full name, and they were allowed
to appear behind screens and were not visible to press photographers or
journalists, as far as I can recall. However, they were visible to
counsel appearing at the inquest, and if not to the family of the
deceased, then to a supporter of the family of the deceased. There was
a form of openness allied to sensible precautions to protect the
identity of police officers who conduct secret
work. 11
am Sir
Michael Wright, the retired judge who conducted the inquest, dealt with
applications for personal public interest immunity. He also dealt with
a number of other procedural applications, which afforded those who
needed their identities or particular information to be kept secret to
be satisfied. The jury reached a conclusion—whether we agree
with that conclusion or not is neither here nor there—but the
procedure was such that there was public accessibility, and the family
of the deceased, which was desperately upset and deeply dissatisfied by
the inquest’s conclusion, were at least there and were able to
take part. They would not be able to do that in a clause 11 inquest. I
therefore ask the Government to re-examine the de Menezes inquest to
see whether there are lessons to be learned before they charge into
passing clause 11 and leading themselves into yet further
trouble. I
will not say anything about intercept evidence other than to mark out
that issue as one that the Government need to deal with. I also draw
attention to a proposal made right at the end of the brief from
Inquest, which deals with suggestions made by my noble Friend Baroness
Miller in the other place during the passage of the Counter-Terrorism
Act 2008. She suggested that section 18 of RIPA should be amended to
allow RIPA material to be disclosed solely to the High Court judge
conducting a secret inquest, and possibly to counsel to a secret
inquest. I
do not propose to discuss that in any detail now, as it is not strictly
germane to clause 11 and is dealt with in approach to another piece of
legislation. However, I urge the Government to be a little more
inventive and not to fall into the default position that they always
fall into of saying, “our first stop is secrecy and only if we
are pushed and pushed will we allow public, or other, access into these
sorts of inquiries”. We know of two cases which have been
stalled because the Government will not allow certain evidence to be
given into the deaths of the man I first mentioned and another person,
whose name is not yet public.
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