Several
hon. Members
rose—
Jeremy
Wright: I am spoiled for choice. I give way to the hon.
Member for Cambridge
first.
David
Howarth: If one looks at the Binyam Mohamed case,
which is the latest example of a judicial review involving national
security, the court simply does not go behind the certificate. It asks
itself whether there were any procedural faults, irrationality or
illegality. In a national security case, that is a very easy test for a
Secretary of State to meet. The only way to ensure that there is more
than that is to build into the statute the court’s more specific
role in deciding whether the test has been
met.
Jeremy
Wright: Yes, I agree. That is important, but we must also
build into the statute some degree of balance in the Secretary of
State’s consideration. It seems to me that that balance does not
exist.
Mr.
Garnier: I am most grateful to my hon. Friend because he
has been bombarded with interventions. My point was provoked by the
intervention from the right hon. Member for Knowsley, North and Sefton,
East. The court doing the judicial review does not change the
decision. It simply tells the Minister to go away and go through the
process again. He may come up with the same erroneous or disagreeable
answer, but the judicial review court cannot change the decision; it
merely polices the process.
Jeremy
Wright: My hon. and learned Friend reinforces the
answer to the hon. Gentleman’s point. It is right not to devalue
judicial review, but it is also right not to over estimate its value in
this context. We cannot rely on the judiciary to save us from the
operation of this clause. It is our job as legislators to ensure that
the clause is drafted properly and not to hope that the judges will
save us later if it is not. It seems to me that it is not drafted
properly because it does not require the Secretary of State to do what
we should expect him to do, which is to balance the arguments for
privacy in these circumstances against the wider issues of justice,
both for the family and for the public more broadly. That is what is
defective about this clause as it is currently drafted, and I hope that
the Minister will correct
it.
Bridget
Prentice: I am sure that everyone in this Committee will
agree that this has been a very constructive, serious and sensitive
debate. I want to congratulate our Hansard writer. A week or so
ago, The Observer suggested that the only people paying any
attention to this debate were a couple of journalists. Nick Beech wrote
back saying, “Never fear, Hansard’s here.” He said
that Hansard will provide a clear and accurate transcript of
proceedings and that with the 24-hour media, it will provide it by the
following day. Therefore, in putting forward very serious and
deliberative ideas and propositions, hon. Members are safe in the
knowledge that they will be recorded
properly. During
the course of this debate it has become clear that there are no easy
answers. No one has said, “Here is a simple solution.
Let’s do that, and it’s all fine.” I shall explain
what the clause is designed to do and then explore how we might be able
to progress and respond to some of the suggestions made by hon. Members
on both sides of the
Committee. The
crux of the issue is that clause 11 addresses how we protect highly
sensitive material that is relevant to a coroner’s investigation
but that cannot be made public. I think that most Opposition Members,
as well as Government Members, recognise that there is a problem and
that a solution is needed. As the hon. and learned Member for
Harborough said, the Opposition have approached the matter by using
parliamentary devices to get the matter aired more fully and in more
detail, and I accept the thinking behind that. It is right that when we
make proposals that would remove juries, there should be full and
rigorous testing of whether those proposals are acceptable and, if they
are, whether they will
work. On
a number of occasions, hon. Members have mentioned the two cases that
my right hon. Friend the Member for Knowsley, North and Sefton, East
and I have mentioned as being behind the proposals. I want to put it on
record that, in fact, we are now down to one of those two cases. In the
second case, referred to by the hon. Member for North Wiltshire, the
coroner has decided that she can progress the inquest without needing
the sensitive material. It might be said that I am arguing against my
own position, but that shows that, through
detailed consideration, one of those cases can be dealt with under the
present arrangements, which is a good thing. However, it also
highlights the fact that it would be only very exceptional cases indeed
in which the proposals set out in clause 11 would ever need to be used.
I do not want to go any further into the detail of the cases mentioned,
because I do not want in any way to compromise the judicial
process. Mr.
Garnier: So that we are clear about the case that the
Minister has just mentioned, will she say whether that inquest has been
opened and adjourned and will now be resumed, or has it yet to
begin?
Bridget
Prentice: It has been opened and adjourned. As I
understand it—I received this information only in the past 24
hours—the coroner now feels that she can continue the inquest
without reference to the sensitive
material.
Mr.
Garnier: Given that answer, may I ask the Minister a
further question? When did it occur to the coroner that she had the
ability to resume the adjourned inquest on the basis that the hon. Lady
has outlined? There has been a long delay and I think that the public
are entitled to know what influenced the change in the coroner’s
mind.
Bridget
Prentice: I do not have that information to hand. As soon
as I do, I will certainly share it with the Committee. I was given the
information only relatively recently. I accept what the hon. and
learned Member for Harborough says. Given that there was a very long
delay and the coroner was quite insistent that she could not continue
the inquest without reference to the sensitive
material— [Interruption.] An answer may be coming.
[Interruption.] No, an answer was not forthcoming. There was a
long delay when that case first came to public attention. I will try to
get further information about what persuaded the coroner that it can
now go ahead. The inquest was adjourned only in November of last year.
Nevertheless, there was a long gap before it got to that
stage. 12.15
pm
It is also
important to say that this part of the Bill is about putting bereaved
families at the heart of the inquest system. As Opposition Members have
said on a number of occasions, it is important that we find some way of
enabling inquests to be held. Nothing can be more frustrating for a
bereaved family than for a case to be left in limbo, so it is important
that we find a way forward. As my hon. Friend the Member for Stafford
said, no solution will ever be ideal in such situations, and that is
very much the perspective of bereaved families. If any of us lost a son
in the circumstances of the Azelle Rodney case, we would want the full
circumstances of the death to be set out in a way that allowed the
finder of fact to make a proper decision on all the facts.
The
Government have a duty to protect and consider the wider public
interest in protecting highly sensitive material, and that involves
difficult, knife-edge, balanced decisions. Let me say again to the
Committee that the Government will not remain wedded to a particular
solution, and certainly not to the arrangements set out in clause 11, if
we come across a solution that makes for a better balance—to use
the words of the hon. Member for Rugby and Kenilworth—that
ensures that highly sensitive material that cannot be put in the public
domain remains outwith the public domain and that gives members of the
bereaved family as much of the information as possible so that they can
feel that the coroner has dealt with whatever happened to their loved
one in as sensitive, appropriate and open a fashion as
possible. I will
reflect carefully on all the suggestions of the hon. Members for
North-West Norfolk and for Cambridge, who lead for the Opposition
parties, but also on those of my hon. Friend the Member for Stafford,
who came in with a third way—I realise that “third
way” is no longer a politically popular phrase, but it is
nevertheless worth throwing into the pot now and again. My hon.
Friend’s alternative solution gives some decision-making powers
to the Secretary of State and provides for some judicial reflection and
resolution. I
want to consider those alternatives in a little more detail, although
proposals might also come from the Joint Committee on Human Rights. As
yet, we have not had its report on the Bill, but I know that its
Chairman, my hon. Friend the Member for Hendon (Mr.
Dismore), has recently written to the Justice Secretary, and I hope
that we will be able to respond in the near future.
Let me turn
to the amendments. Most Opposition Members, and my hon. Friend the
Member for Stafford, have criticised the breadth of the criteria
relating to the way in which a certificate would be triggered,
particularly in subsection (2). The hon. Members for North-West Norfolk
and for Cambridge described the reference to the prevention
of
“real harm to
the public
interest” as
a catch-all provision. It has also been said that we have widened the
criteria, compared with those in the Counter-Terrorism Bill. Let me put
the issue in context. In the Counter-Terrorism Bill, there were three
grounds for triggering the certificate: that the material could not be
made public
“in the
interests of national
security”, in
the interests of relations with another country
or “otherwise
in the public
interest.” We
accepted that the phrase “otherwise in the public
interest” was too broad, so we redrafted the provision, which
has become clause 11(2) in this Bill, in a genuine attempt to respond
to that criticism. The additional criteria of “preventing or
detecting crime” or
protecting “the
safety of a witness or other
person” were
intended to add specificity and therefore to narrow the otherwise broad
circumstance in which the certificate might be issued. We also tried to
place a bar by replacing the test that was based simply on the public
interest with one that could be invoked only to prevent real harm to
the public interest. The hon. Member for Rugby and Kenilworth thinks
that that is too wide as well. Clearly we have failed in our attempts
to narrow down the definition in response to the comments made in
relation to counter-terrorism
provisions.
Jeremy
Wright: My concern is not necessarily that the provision
is too wide. I am not sure whether it is or not. I am not sure whether
it is clear enough. It would
be helpful if the Minister would explain what the word
“real” means in the context. Does it mean “not
imaginary”, or
“substantial”?
Bridget
Prentice: I would say that it meant substantial. I
recognise that there are still considerable concerns about the breadth
of the criteria.
David
Howarth: There is another complication about the use of
the phrase in clause 11, which is that it is used again in clause 71,
when the Bill turns to the question of anonymous witnesses. When the
temporary legislation, the Criminal Evidence (Witness Anonymity) Act
2008, was going through Parliament, the Minister said that the phrase
meant something specifically to do with protecting undercover
operations. It does not make a lot of sense for the same phrase to
occur in the same Bill with different
meanings.
Bridget
Prentice: The hon. Gentleman makes a fair point, and I
assure him that we shall look further at the criteria set out in
subsection
(2). The
amendments also deal with another central question: who should be
responsible for certifying the investigation. Clause 11 provides that
it should be the Secretary of State, with the court
performing its familiar role of checking whether the decision is
flawed, according to the usual principles for an application for
judicial review. The Opposition want to transfer that responsibility to
the judiciary. I can see the merit in their arguments, but a question
needs to be considered. There are some significant difficulties in
transferring the responsibility, to which, for example, my hon. Friend
the Members for Stafford and my right hon. Friend the Member for
Knowsley, North and Sefton, East referred. Whether national security is
a factor should really be the decision of the Executive. If Opposition
Members thought about it, they might find that the judiciary would not
be overly keen to make decisions about whether something had a national
security implication. We need to reflect on that as we try to reach a
sensible conclusion about clause 11.
Mr.
Henry Bellingham (North-West Norfolk) (Con): The Minister
puts her argument cogently and constructively, but does she not
recognise the points of my hon. Friend the Member for North Wiltshire
that there would be a danger of Executive creep? In the first year,
there might well be two or three inquests in which the certification
process would be used; but there would be a temptation to use it more
and more. Everyone knows the pressures that Ministers are under. We
were thinking about perhaps taking that stage out of ministerial hands
and putting it into the hands of someone who would not be subjected to
that Executive and administrative
creep.
Bridget
Prentice: Again, the hon. Gentleman puts his case very
reasonably. I have some sympathy with the view that Executive creep can
occasionally occur. That is why the suggestions of my hon. Friend the
Member for Stafford are worth considering in more detail. Some of them
might give the balance and distinction between when the Executive
should make a decision and when the judiciary can have oversight and
show how that decision should be reflected in
inquests.
David
Howarth: The crucial point—I tried to make this
point during an intervention on the hon. Member for Stafford—is
the degree of oversight and the degree of deference held by the court
for the decision of the Executive. Under ordinary judicial review, the
court pays a great deal of deference to the Executive’s view on
national security. Some of us feel that that is simply not enough, but
we are not calling for the court to decide on national security by
itself. We are calling for the Executive to apply to the court for an
order on the basis of national security, and for the court to be able
to go behind that certificate to some degree to ask the Secretary of
State on what basis the Secretary of State wants the court to make the
decision. Nevertheless, when that happens, the court will still
ultimately defer to the Executive’s view of the facts of the
matter, because the court has no independent way of judging those
facts. It is about the balance between the two. It is not just about
one thing or the other.
| 
