Bridget
Prentice: I understand the hon. Gentleman’s
argument perfectly. That is why we need to reflect further on how to
strike that balance, so that the interests of national
security—which are, of course, crucial—are
protected.
Mr.
Boswell: In light of the exchanges this morning, would the
Minister also consider that, as my hon. Friend the Member for North
Wiltshire said, there will be a security, international relations or
crime angle in virtually all such sensitive cases for a Secretary of
State to latch on to in order to make a decision for secrecy? My hon.
Friend the Member for Rugby and Kenilworth implied that it could be a
judicial function to consider whether the Secretary of State is capable
of balancing those considerations against the wider interests of public
justice and openness. In an effort to seek that balance and prevent a
Secretary of State from just going down the track of saying,
“There must be some security angle here,” we are anxious
to build in further
safeguards.
Bridget
Prentice: Again, I understand what the hon. Gentleman is
saying. I would just say two things to him. One is, of course, that
clause 11 is expected to be an exception rather than a rule. The other
is that even as we edge our way towards a balance between the Executive
and the judiciary, we should not forget the balance that comes from
proper parliamentary scrutiny of the Executive. That is built into the
system too.
The courts
themselves have recognised the sensitivity involved in national
security. In the case of the Secretary of State for the Home Department
v. Rehman, Lord Hoffmann said
that “the
question of whether something is ‘in the interests’ of
national security is not a question of law. It is a matter of judgment
and policy. Under the constitution of the United Kingdom and most other
countries, decisions as to whether something is or is not in the
interests of national security are not a matter for judicial decision.
They are entrusted to the
executive.” He
went on to say in a postscript written after the 9/11
attacks: “It
is not only that the executive has access to special information and
expertise in these matters. It is also that such decisions, with
serious potential results for the community, require a legitimacy which
can be conferred only by entrusting them to persons responsible to the
community through the democratic process.”
Those are powerful
remarks that we need to bear in mind as we move
forward.
Mr.
George Howarth: To some extent, does that not answer the
point made by the hon. Member for North-West Norfolk about the
potential for Executive creep? In my experience, having been involved
both in Northern Ireland and, formerly, in the Home Office, in
decisions about individual cases—as my right hon. Friend the
Member for Cardiff, South and Penarth will have—there are no
circumstances in which any Minister of whatever party would
rubber-stamp such decisions. My experience is that people take such
decisions carefully, taking all the advice possible. That being so, I
cannot see how Executive creep could possibly come into
it. 12.30
pm
Bridget
Prentice: My right hon. Friend makes a good point. It is
true. Given the particular sensitivity of these cases and their rarity,
it is highly unlikely, to the point of being unimaginable, that any
Secretary of State, regardless of party, would make a decision without
thinking carefully about all the consequences. We too need to think
carefully about shifting between the significant and respective roles
and responsibilities of the Executive and the
judiciary.
Mr.
Garnier: I am sorry to jump the queue ahead of my hon.
Friend the Member for Rugby and Kenilworth. The de Menezes inquest was
conducted by a retired High Court judge, sitting as the coroner with a
jury. It is fair to guess that, during the course of that inquest, Sir
Michael Wright will have had to consider matters to do with national
security, the relationship between the United Kingdom and another
country and, no doubt, the prevention and detection of crime. It may
well be that—if we know what it means—he would have had
to consider other things that may have caused some real harm to the
public interest. As I said earlier, that seems a perfectly sensible way
of having open justice as well as some hold on the escape of highly
sensitive information into the public domain, contrary to the public
interest, or whatever it may be. Why do the Government not pause for a
bit and use the Sir Michael Wright coroner’s inquest as a lesson
or template from which they can redraw clause 11, if they still think
it is
necessary?
Bridget
Prentice: I am asking the Committee to pause for a bit and
look at the flaws in the amendments proposed, albeit with every good
intention, as well as the flaws highlighted in clause 11. Some
campaigners argued that the de Menezes inquest would have been held in
secret, had the Bill been in force. That is simply not true. It was
possible to use all the other operations and measures that are
available under clause 11(1)(b) to enable that inquest to go
ahead.
Jeremy
Wright: I hope that the Minister is saying that the
Government will reconsider all of this and return to it on Report. If
she is saying that, perhaps she can be clear about it, because I am
sure that all Committee members will welcome
that. May
I return to some remarks that the Minister made a moment or two ago and
ask two questions? First, she mentioned parliamentary scrutiny as a
restriction on the activities or the decisions of the Secretary of
State
in this context. I am not sure, because of the nature of the material
that we are talking about, how that helps us. Perhaps she can outline
in a little more detail how she envisages parliamentary scrutiny
playing a part in the Secretary of State’s exercise of
discretion under clause
11. Secondly,
in relation to the point that I was making earlier, I do not
dispute—I doubt that any Conservative Member disputes
it—that it is for the Secretary of State to make a determination
about what should or should not be kept private, in the interests of
protecting national security, for example. I am concerned that, at the
moment, all the Bill would require the Secretary of State to do is to
make that determination and decide whether it is in the interests of
national security or the relationship between the UK and another
country to keep a matter private. The Bill does not require the
Secretary of State to balance those interests against wider interests.
I hope that the Minister can comment on that
balance.
Bridget
Prentice: That is correct. First, I shall ask the hon.
Member for North-West Norfolk to withdraw his amendment, because I want
to reflect on the issue further—today’s debate highlights
the concerns clearly. I hope that that is helpful. We will come back on
Report with more detail, which I hope to be able to discuss with
Opposition Members between now and Report stage, so that we can reach a
positive and satisfactory conclusion. With all due respect to the
Committee, I felt that it was important that I set out in some detail
why we are where we are.
On the
question of balance, I accept the point that the hon. Member for Rugby
and Kenilworth makes, but it can also be argued that, although the
rights of the bereaved family have to be taken into account, the public
and national security interests may outweigh those rights. It is on
that point that we have to discover how we move
forward. The
hon. Member for Cambridge talked about the importance of having a jury
and drew a comparison with juries in criminal trials, but as has been
reflected in today’s debate, that is not an exact comparison
because—I will not repeat the argument in detail—it is
possible in a criminal trial for the prosecution to drop the case if it
feels that it cannot protect the sensitive material, whereas that is
not the case here. He also talked about authorised jury checks. Those
can take place exceptionally with the permission of the Attorney
General, but the level of vetting in those cases is limited in some
ways—more limited than full, developed vetting. In order to view
the type of sensitive material that might be relevant in the one case
that we are talking about, juries may have to be security-cleared to a
higher level; that is simply not feasible, and it may not be
appropriate.
Mr.
Boswell: I was anticipating the Minister’s remark,
because I thought that she was trying to be helpful to us, but I am now
disappointed by her closing point. It is not clear why any person
cannot be security-vetted to a higher and appropriate standard. There
may be information they have to dig, but by the nature of the case, we
know that there are only a handful of cases that are likely to be
referred. Will she at least reflect on that
further?
Bridget
Prentice: I will reflect on it. However, in the general
way of life, the idea that we go through a high level of vetting on
randomly selected juries just does not seem to be the most appropriate
way of approaching the subject. But I will certainly look at the case
in more detail.
The question
about public interest immunity certificates being the answer has
already been addressed, both on Second Reading and by my hon. Friend
the Member for Stafford. A jury cannot be expected to reach a
meaningful verdict if it cannot have access to all the
information—my hon. Friend made that case again clearly. I know
that that argument has been made, but I, as a juror, would not be
satisfied if I were trying to make a finding of fact, and material was
being withheld because of its sensitivity. It is not feasible to
suggest that a jury could come to a proper finding of fact in that way.
Nevertheless, I reassure the Committee that all measures short of
certifying an investigation will be considered as a matter of course
and that the investigation would be certified if, and only if, no other
measures were adequate to protect the public interest at stake. The
clause requires the Secretary of State to go through such a
process.
For most
cases involving sensitive materials, special measures of one kind or
another would almost certainly provide the answers, as the de Menezes
case showed. But it might be the case that that is not always possible.
My right hon. Friend the Secretary of State for Justice has already
made clear that we expect the certification process to be invoked
rarely, and I reiterate that to the Committee.
I would like
briefly to discuss military inquests, which the hon. Member for North
Wiltshire mentioned, and to put on record our thanks to the Wiltshire
and Oxfordshire coroners for their commendable work. It would be
appropriate at this stage for the Committee to send its condolences to
the families of the two young men killed while the hon. Gentleman was
in Afghanistan. Military inquests will not be subject to the clause
because they are already heard without
juries. I
have listened carefully to the points made today and in our sitting on
10 February. I assure the Committee that I have registered the strong
desire to narrow the criteria against which a certificate may be issued
and to have a greater measure of judicial oversight. I will reflect
very carefully and, of course, we will come back to it on Report. In
the meantime, I ask the hon. Member for North-West Norfolk to withdraw
his amendment.
David
Howarth: Before the Minister sits down, will she comment
on the Northern Ireland aspect and on amendment
125?
Bridget
Prentice: The hon. Member for Cardiff, Central suggested
that amendment 125 was an extension. There is no extension. The
provision reflects the issue raised before of protecting the names of
members of special forces and their families, and we will continue to
work the Ministry of Defence to do that. However, if a family does not
want their family member’s name to be withheld, the coroner will
not make a direction to have it withheld. I hope that that gives some
reassurance.
All the Bill
applies to Northern Ireland because the situation is the same there. I
would like to make it clear that there are no cases in Northern Ireland
in which it
would be necessary to apply a clause 11 certification. I hope that that
will provide sufficient reassurance to the hon. Lady. The Secretary of
State for Northern Ireland has made very clear that the provisions will
not apply to investigations into the legacy cases. He knows from his
experience in Northern Ireland about the sensitivity of those cases, as
do I. The legacy cases will not be affected; nevertheless, highly
sensitive cases or material may come before an inquest in future, so
the provisions will be available in Northern Ireland as
well. I
apologise for my very lengthy response to the debate. I invite the hon.
Member for North-West Norfolk to withdraw his amendment and ask members
of the Committee to agree, in the meantime at least, that clause 11
stand part of the Bill.
Mr.
Bellingham: I am grateful to the Minister for what she has
said—she has put her arguments in a constructive and
understanding way. The good news is that, having listened to what she
has said this morning, I will withdraw the amendment; the bad news is
that we cannot let the clause stand part of the Bill. I am confident
that, having won the argument and with the support of the hon. Member
for Moray and perhaps some Government Members, we will stop the clause
standing part of the
Bill. We
have had a very good debate and I will not rehearse all the arguments
now, but I would like to thank my hon. and learned Friend the Member
for Harborough for his contribution. My hon. Friend the Member for
Rugby and Kenilworth, who as a Whip does not normally speak at length,
made some very telling points, as did my other hon. Friends and the two
Liberal Democrat Front
Benchers. 12.45
pm Two
points have come out of the debate. One is about public confidence in
the coronial system. Originally, we heard that the problem was caused
by two inquests that had been adjourned sine die and were going nowhere
fast. We now hear that there is only one such inquest. I really feel
that to risk public confidence and trust in the entire system on the
basis of one inquest is to ask a great deal from the official
Opposition in terms of persuading us to support this particular
clause.
Bearing that
in mind, the telling point was made by my hon. Friend the Member for
North Wiltshire when he said that there can be few examples of inquests
where there are more highly confidential, top secret documents and
information that has to be protected, yet we have a system in place
that works perfectly well—one that covers virtually every single
eventuality. Despite what the Justice Secretary said about those two
inquests, we now hear that the current system can indeed cover and
protect the information involved in one of them, so that is 50 per
cent. of the problem solved, as I see
it. The
Minister mentioned, and I think that this is quite telling, that
families are at the heart of the Bill, but there is no mention of
families in the clause, or of the wider interests. I take on board
entirely the spirit of good will and co-operation in which the Minister
asked us to withdraw the amendment—we will accede to her
request—but despite her remarks, we cannot vote to allow the
clause to stand part of the Bill. It will do
untold damage to the coronial system and undermine public confidence.
Furthermore, what is so sad is that in a good, positive part of the
Bill, which can achieve a great deal, we have a clause that could undo
much of that good work. We will have to vote against clause stand
part. Amendment,
by leave,
withdrawn. Question
put, That the clause stand part of the
Bill. The
Committee divided: Ayes 8, Noes
7.
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