The
Chairman: David Howarth—sorry, Jenny
Willott. Jenny
Willott (Cardiff, Central) (LD): Thank you, Mr.
Cook. I have never been mistaken for my hon. Friend the Member for
Cambridge before. I want to discuss amendment 125, which relates to a
slightly different point but which is tied to the openness and
publicity surrounding an
inquest. In
the draft Bill, the Government proposed to restrict the reporting of
certain details at an inquest. When the Government consulted,
significant concerns were raised by a number of different
organisations. They said that they had dropped the proposals to
restrict reporting of certain details, because of concerns about press
freedom and so on. Instead, the Government decided to expand the media
code to ensure the sensible reporting of inquests, including the more
sensitive details, which was done through a media code rather than
laying out restrictions in statute.
My concern,
which is picked up by amendment 125, is that clause 34(2)(e), which I
suggest removing, looks like the same proposal, in that it restricts
the reporting by the media of various details at an inquest. In fact,
it looks even broader than the Government’s initial proposal.
Under the original proposal, which was later dropped, the name of the
deceased or an interested person, or information that could lead to the
identification of the deceased person, could be withheld. However, the
Bill refers to the “name or other matter”, which is
significantly broader than what was originally proposed. Rather than
the name or other matter not being published, it refers to its not
being disclosed, which again is broader than the original
proposals. I
tabled the amendment to receive clarification from the Minister about
the intention of the subsection, given that the Government were clear
when they dropped their original proposal that such a power needed to
be placed through the voluntary media code rather than legislation.
They accepted the argument that it was overly restrictive of press
freedom. If the Government’s intention is not to reintroduce the
original proposal, will the Minister explain what can be done to ensure
that it does not lead to exactly what was proposed originally except
that there would be even broader restrictions on press freedom than
under the draft
Bill? Amendments
110 and 109 relate to secret inquests in Northern Ireland. I am sure
that the Minister is aware of the strong view that has been expressed
by the Northern Ireland Human Rights Commission about the extension of
the provisions to Northern Ireland. It states that
any “extension
of these proposals to Northern Ireland would be viewed as bad faith by
the British Government and could seriously jeopardise progress on what
is a very politically sensitive
issue.” That
is incredibly strong language for a body that is usually more measured.
There is strong public opinion and concern in Northern Ireland about
certified inquests. Following Ministry of Justice questions at which
the issue was raised, the Secretary of State wrote to hon. Members
saying that it would not apply to legacy cases and, thus, not to cases
that are still awaiting inquests on deaths still outstanding from the
troubles. Given
the strength of feeling in Northern Ireland among both the public and
those at the Human Rights Commission, and the fact that circumstances
in Northern Ireland are different from those in the rest of the United
Kingdom, the need for the situation and the judicial process to be
absolutely transparent and open is more apparent there than almost
anywhere else in the UK. If that does not happen, it could lead to all
sorts of political issues as
well.
Mr.
Gray: By what they have said this morning, the hon.
Members for Cardiff, Central and for Stafford have shown that their
hearts are very much in the right place. All of us are fundamentally
opposed to clause 11, although our solutions to the illiberal aspects
of the provision might be
different. I
apologise to the Committee for not having been present at the two
previous sittings and therefore not having been here for the start of
the debate on clause 11. I was in Afghanistan, which my hon. Friend the
Member for Daventry kindly mentioned in my absence. While I was there,
two soldiers were killed—Lance Corporal Kingscott from 1st
Battalion the Rifles and Marine
Darren Smith of 45 Commando. Both their bodies are being returned to the
UK today through Wootton Bassett in my constituency. The inquests will
be carried out by the excellent Wiltshire coroner, Mr. David
Masters or his immediate successor. He has built up significant
expertise in military inquests, alongside the Oxfordshire coroner.
While thinking of those two young men, I wondered whether the
circumstances surrounding the deaths of Lance Corporal Kingscott and
Marine Smith would be allowed to be made public, if clause 11 were
accepted. I
will come back to that, with particular reference to military inquests,
in a moment.
11.30
am The
general flavour of the debate so far this morning indicates that the
terms of clause 11 are excessively wide. On Second Reading, the
Secretary of State made it plain that he was worried about only two
inquests. He reiterated the point in a private conversation afterwards
that he was only bothered about two particularly sensitive inquests and
that this wide-ranging clause had been introduced because of them. The
two inquests that I have mentioned were referred to by my hon. and
learned Friend the Member for Harborough and were raised by Inquest. It
seems extraordinary to introduce such a wide-ranging clause, which
would not necessarily be used by this Government, but which might be
used by subsequent, more malign, Secretaries of State in ways in which
we do not intend it to be
used. Amendments
41 to 43 propose that the reasons that the Secretary of State can use
for certifying the privacy of the inquest should be restricted to
matters of national interest. It seems perfectly obvious that the way
in which the clause is drafted, allowing privacy of inquests in the
interests of the relationship between
“the United
Kingdom and another
country”, could
mean virtually anything. Any trade matter, for example, would affect
the relationship between the United Kingdom and another country.
Another reason is “preventing or detecting crime”, which
applies to preventing or detecting any crime at all—it could be
preventing, not even detecting. We could have a private inquest in the
interests of preventing crime for heaven’s sake. What sort of
crime—road crime, traffic crime, parking offences, who knows?
Will we have private inquests in order to avoid parking offences
becoming
public? A
further reason
is “in
order to protect the safety of a witness or other
person”. Of
course, we have to protect the safety of a witness or other person, but
to make secret information in an inquest which ought, by definition, to
be available to the public in order to protect the safety of a
“witness or other person” seems extremely
wide.
Mr.
Kidney: Before the hon. Gentleman gets too carried away
about the extent of the clause, I refer him back to clause 11(1)(b),
which states that the Secretary of State must be satisfied
that
“no other
measures would be adequate to prevent the matter being made
public.” There
are many cases that that would not touch.
Mr.
Gray: That is a misreading of the Bill. The hon. Gentleman
is right in saying that clause 11(1)(b) states that the Secretary of
State may make such a certificate only
if “no
other measures would be adequate to prevent the matter being made
public.” In
other words, the clause starts with the presumption that the matters
must not be made public and, if the ways in which the matter cannot be
made public are not adequate, then the Secretary of State has an
additional power to keep them secret. It is not a question of such
matters mostly being available to the public; the clause lays down that
the Secretary of State either already has powers to keep them secret,
or that these measures will give him extra powers to keep them secret.
My argument is that they should not be kept secret—they should
be available to the public. That is one of the most fundamental
principles in coronial inquests at the moment.
I say that
for three reasons. The first reason involves the interests of the
public. It seems perfectly obvious that the public need to know why
people die—in particular, at the hand of the state. Secondly,
there may well be reasons why something went wrong at the hands of the
state and ways in which that could be corrected. A coroner may come up
with conclusions—as David Masters and the Oxfordshire coroner
have done in military inquests—to show that things went wrong.
If such things were heard in secret, there would be no way of knowing
whether the state had corrected them. Thirdly, the family of the
bereaved need closure, and they get closure by having an entirely
public inquest. If that inquest is in private, and the family, or
representatives of the family do not know why the person in question
was killed, can they ever get closure? For those three good reasons, it
seems that most matters should be in public. There may be some extreme
cases of national security where some degree of secrecy should be
allowed, and I shall come back to
that. I
shall now focus my remarks on military inquests. The arguments can also
be applied to inquests into people who have been killed in prisons or
wrongly killed in other areas, with regard to the public security or
public safety—police shootings and so on come under the same
category. My own particular interest and expertise, such that it is,
concerns military inquests. Virtually every military inquest would fall
under the description of the clause. Almost any death in a theatre of
war or on a battlefield could be deemed to have national security
implications or to place the interests of the Government or our
relationship with an overseas country at the heart of consideration. I
cannot think of any military inquest that would not fall under the
clause—if the Government disagree with that, perhaps they can
raise it in a moment.
Regarding the
two young soldiers—one was shot by the Taliban, I think, while
the other was blown up by a roadside bomb—aspects of their
deaths could theoretically harm the national interest. Should that
patrol have been at that place at that particular time? Who were the
enemy? Who shot them? Did we have adequate protection for our vehicles
to prevent them from being blown up? With such low-level
deaths—I do not mean that in a bad way; I mean the deaths of
ordinary soldiers on a battlefield—there are all sorts of ways
to argue that an inquest would be against the public
interest. Boring
down further, I give the example—
The
Parliamentary Under-Secretary of State for Justice (Bridget
Prentice): Will the hon. Gentleman give
way?
Mr.
Gray: I will happily give way to the Minister after I have
given the example. The inquest into the crash of Hercules XV179 was
carried out this year in Wiltshire. That plane was shot down in Iraq
towards the beginning of the war, resulting in the deaths of 10
servicemen. The coroner concluded that there were a number of reasons
for the incident. First, the Americans had not shared with us
sufficient intelligence about enemy activity in that area immediately
before the flight. Secondly, he took the view that had foam suppressant
been fitted into the wing tanks of the Hercules, there would have been
a significant chance that it would not have been shot down. The
Government have been required, as a result, to spend £750,000 a
plane on 40 or so planes. Thirdly, there were a number of other
matters—some of which were excised and not made
public—where the military or the Government had failed, and, to
some greater or lesser degree, contributed to that particular crash.
Incidentally, the Americans refused to come to that inquest to give
evidence. Interestingly, they took the view that the matter was too
sensitive, and despite the fact that the coroner tried to get them to
come, they refused to give
evidence. If
the Bill had been in place at the time, it would be a simple matter for
the Secretary of State to rule, under such a licence—and for the
judge to go along with it—that such matters are of great
national concern. Such matters might include the intelligence
relationship between the US and the UK—if we had that inquest in
public, the US might well not share the intelligence in the future.
They might also concern costing the Government a very large amount of
money to fit the foam suppressants on the wing tanks. The Hercules was
on a special forces flight involving a number of people carrying out a
number of duties that I will not mention. The Government could easily
have argued that the matter was one of grave national concern and that
if it went before David Masters, national security would be
compromised. I
am glad that that did not happen, and that the inquest into XV179 was
heard in public. I am perfectly content that the current Secretary of
State would have allowed it to be heard in public, and when the
Minister intervenes, I am sure that that is what she will say. But what
concerns me is that some malign Secretary of State 20, 30, 50 or 100
years from now, will see a case such as XV179 and say: “Thanks
for this excellent Bill. We are now going to hear the inquest in
secret.” That is why I fundamentally oppose the whole
principle.
Bridget
Prentice: I am grateful to the hon. Gentleman for giving
way. I wanted to stop him before he went down too far that particular
road, simply to say that he is wrong to push the argument on the basis
of military inquests, because at the moment all military inquests are
held without juries. Where information can be redacted, it is, and that
is possible in relation to the provision about the anonymity of
witnesses, so the provision will not affect military inquests in the
way that he has
described.
Mr.
Gray: The Minister makes a perfectly good point. That is
the point that my hon. and learned Friend the Member for Harborough
made in a more general sense,
namely, that there are perfectly good procedures in place at the moment
to make sure that matters of national security remain secret. Of
course, there are no juries in military inquests and large parts of the
evidence are redacted, although redacted inefficiently, so it is
perfectly possible to remove the redaction. When the redaction was
removed in those cases, it turned out that a lot of the information
that was redacted was not the slightest bit secret at all, so that is
another example of the state going too far to keep things secret that
they should not have done. However, the Minister’s point is a
good one. The state has perfectly good ways of making sure that things
that should not be made public are not made public. My hon. and learned
Friend the Member for Harborough and my hon. Friend the Member for
North-West Norfolk made such points extremely well in an earlier
sitting.
Mr.
George Howarth: The hon. Gentleman has said that he fears
that a malign Secretary of State might in future use the provisions of
clause 11 to prevent an inquest being held with a jury in a case in
which a jury should manifestly be involved. Is he overlooking the fact
that that malign Secretary of State would be subject to judicial
review, and if a judicial review were to consider that subsection (1)
or (2) had not been taken into account by the Secretary of State who
was acting from malign purposes, it would almost certainly overthrow
that
decision?
Mr.
Gray: The right hon. Gentleman is right to pick me up on
the loose use of the word “malign”. He is quite right in
saying that if the Secretary of State were bad and wicked and doing
things for the wrong reasons, the High Court judge would correctly pick
that up. My example was not malign, but it could arguably be in the
national interest. At the moment, the inquest would not be heard in
private, but under this Bill it would be. The right hon. Gentleman is
right to pick me up on the word “malign”. However, a
merely over-sensitive or over-cautious Secretary of State, perhaps in a
time of war, would say, “This is a very delicate matter. We must
hear this in private and in secret” and a judge would be
persuaded to agree. We should not put something into statute unless we
are certain that under no circumstances will it be used in a way that
was not
intended. That
is why I agree with the amendments that remove the other categories in
clause 11, reducing the effect of the provision to only the most grave
and serious matters of national security. If the Government choose not
to accept our amendments, I hope that people who are concerned about
the illiberal nature of the clause will vote against it at stand part,
as happened during the passage of the Counter-Terrorism Act 2008, when
there was a significant rebellion in the House. Only when it became
apparent that the other place would remove the clauses were they were
deleted by the Government, and I suspect and hope that the same is the
case
here. Having
listened to the Secretary of State on Second Reading, it seems that the
Government are moving towards accepting that some aspects of the clause
may not achieve their perfectly laudable aim. Whether it is the
solution proposed by the hon. Member for Stafford, or solutions that we
have proposed, the Government need to find a solution that achieves
what we all want—namely, we do not want intercept evidence or
our
intelligence services to be compromised. We all want those things to
happen, but Opposition Members do not believe that clause 11 achieves
that as currently drafted. In support of
that, I will give two quotes, the first from a letter from David
Masters, the Wiltshire coroner who has been involved in military
inquests: “Experienced
coroners know how to deal with sensitive PII and classified material
issues. We do not know of any who have acted improperly; they can be
trusted!” There
is a lot of sense in that. Coroners know how to handle such matters and
do not need a new Act of Parliament in order to deal with
them. 11.45
am My
hon. Friend the Member for Harborough has already quoted the excellent
brief produced by Inquest, which is a modest and sensible organisation
not given to excessive
language: “The
proposals amount to a fundamental attack on the independence and
transparency of the coronial system in England and
Wales”. It
claims that the proposals
are “fundamentally
flawed; unsupported by evidence; disconnected from legal principles and
have come about without any consultation with
stakeholders.”
On Second Reading, the
Secretary of State said that he was unhappy with some aspects of clause
11 and was ready to think about them again. When the Minister replies,
I hope that she will follow up those comments and outline for the
Committee how she will either withdraw or, at the very least, amend the
proposals.
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