Legislative Scrutiny: Coroners and Justice Bill - Human Rights Joint Committee Contents


Memorandum submitted by Liberty

OVERVIEW

  1.  The Coroners and Justice Bill raises a number of significant human rights concerns, however, given the maximum word limit for this submission we intend to focus only on the two main concerns that we have with this Bill: changes to the rules as to when jury inquests can be convened (in particular the introduction of secret inquests) and the data sharing powers in clause 152. For further information on the human rights issues raised in the Bill please see Liberty's Committee Stage Briefing on the Bill.[63]

JURY INQUESTS

  2.  As drafted clause 7(2) removes one of the existing grounds for when juries are required at inquest, namely: where "the death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health and safety of the public or any section of the public". The Government has given no policy justification for the removal of this ground.

  3.  Article 2 (right to life) is often said to be the basic precondition for the enjoyment of other rights. The first sentence of Article 2(1) emphasises that a persons right to life "shall be protected by law". It has been held that this requires the state not only to refrain from the unintentional and unlawful taking of life but also to take steps to safeguard the lives of those within its jurisdiction.[64] In essence this places a positive obligation on states to ensure that the necessary regulatory framework is in place to protect the right to life. Juries should necessarily be convened where there is a chance that the State has neglected their regulatory obligations. It is also crucial that juries are involved in such cases to ensure public confidence. Independent scrutiny is vital in situations where Government inaction may have indirectly caused or contributed to loss of life. For these reasons, and with no policy justification for the removal of the health and safety ground, Liberty urges that the minimum floor for when juries are required is reinstated.

  4.  Liberty also believes that clause 7 should be amended to allow for a jury inquest where a "death resulted from an act or omission of a person discharging functions under the control of a Public Authority or an entity which falls to be considered as a Public Authority for the purposes of the Human Rights Act 1998". This would allow for a jury inquest to be convened when a senior coroner has reason to suspect that a death has resulted in whole or in part from the act or omission of a Public Authority. The state's obligations following a death in custody were expressed by the Court in Jordan v UK[65]: to give the deceased's family the truth; ensure that lessons are learnt to improve public health; and to ensure that, if appropriate, criminal proceedings are brought. In Jordan the ECtHR stated that failure to meet the requirements listed below will in itself constitute a breach of Article 2. This position was confirmed by the House of Lords in Amin.[66] The requirements are that the investigation must be made on the initiative of the state (ie not civil proceedings); independent; effective; prompt; open to public scrutiny; and support the participation of the next of kin. In Amin[67] the House of Lords established that these criteria should apply not only to cases where state agents were actively involved in the death but also "where the death was alleged to have resulted from negligence on the part of state agents". We fully support this and believe there should be an Article 2 compliant inquest in all cases where the state has failed in its obligation to protect life. As currently drafted clause 7 recognises this only in part by including situations where the death resulted in an act or omission of police officer. This recognition needs to be extended to cover other situations where the omissions of those acting on behalf of the state can be investigated.

SECRET INQUESTS

  5.  Clause 7 governs the use of a jury inquest. The general rule is that an inquest must be held without a jury. Sub-clauses (2) and (3) set out exceptions to this rule and give the coroner the power to decide to hold an inquest with a jury in any case where he or she thinks it is appropriate. These parts of the clause are modelled on section 8(3) of the 1988 Act. However, the Bill dramatically departs from current rules at clause 7(1) which provides that rules concerning jury inquests are subject to provisions governing "certified investigations" found at clause 11. Clause 11 introduces a provision which would gravely limit transparency, and increase executive control, over the inquest process. Clause 11(1) allows the Secretary of State to issue a certificate that an inquest will be held without a jury giving the Secretary of State significant scope to intercede in inquest proceedings. The removal of juries will effectively allow "secret" inquests to take place following deaths that result from state actions. This unhappy provision was first introduced in the Counter- Terrorism Bill 2008 (CT Bill). Following a public outcry and concerted cross-party opposition to the proposal, proposals for secret inquests were dropped after the CT Bill entered the Lords.

  6.  Initial media reports surrounding the re-introduction of the provisions in the current Bill have indicated that the "secret inquests" have returned with greater safeguards in place. In fact the reverse is true. The grounds for the removal of a jury (which were already extremely broad in the CT Bill) have been extended and now cover situations where the inquest will involve material that should not be made public: (1) in the interests of national security; (2) in the interests of a relationship with another country; (3) in the interests of preventing or detecting crime; (4) in order to protect the safety of a witness or another person; or (5) otherwise in order to prevent real harm to the public interest.[68] It is concerning that the rationale and scope for an already controversial proposal has been widened in this way and we hope that this policy-creep will be challenged as the Bill makes its passage.

  7.  Determinations as to whether an inquest will be held without a jury are made solely by the Secretary of State. The only potential challenge to a decision to hold an inquest without a jury would be by way of Judicial Review (JR) in the High Court.[69] However, the purpose of a JR would be to challenge the legality of the decision not to allow a jury. Given that the grounds for the Secretary of State to make a determination cover a broad non-specific "public interest", the decision could prove difficult to challenge in practice. The Bill does not specifically state that other interested parties, such as family or legal representatives, are excluded. However, the basis for deciding that a jury should be excluded is that "the inquest will involve consideration of material that should not be made public". By implication anyone who is not security cleared is likely to be excluded from proceedings in the same way that they would be from, for example, closed sessions in control order proceedings.

  8.  We have serious concerns about the impact that jury removal would have on public confidence in the inquest system. We also question the compatibility of the proposals with the UK's legal obligations. Exclusion of the jury and the family would seem to conflict with the requirements of family involvement and public scrutiny established in Jordan v UK.[70]

  9.  Almost by definition the inquests to which these provisions would apply are likely to involve controversial or violent deaths. If these provisions were already in place it is likely that they could have been applied to the inquest into the shooting of Jean Charles de Menezes.[71] Any decision will be inherently political. Other inquests might raise similar issues to the de Menezes inquiry but not have the same profile or risk the same political fallout. Political considerations risk inconsistent decision-making when based on such arbitrary grounds as "public interest". Liberty is especially concerned that inquests into the deaths of serving soldiers are driving the proposals for secret inquests. Clause 11 specifically allows for secret inquests to be held in the interests of a relationship with another country and there has been much speculation that this broad ground would be invoked following the deaths of soldiers killed in friendly fire or other controversial incidents that involve foreign military personnel.[72] Liberty understands that army families are rightly concerned that secret inquest powers would enable the truth about such incidents to be concealed from the public.

  10.  We can see no reason why these proposals are necessary and we do not believe that any of the Government's arguments stand up to scrutiny. Measures already exist to ensure that matters in the public interest can be suitably accommodated in inquest proceedings. These include the issuing of Public Interest Immunity certificates; the power to hold part of an inquest in camera; the power to restrict certain details from media reports; and the use of special measures. One of the main planks in the government's argument seems to be that because jury inquests account for only 2% of the total number of inquests in England and Wales the proposals for secret inquests won't have a huge impact on fundamental rights. As Inquest has rightly argued, "this is a false and misleading argument. It is the investigation of the most serious and most contentious deaths that will be affected by this legislation—deaths at the hands of state agents. The removal of public scrutiny from these proceedings is therefore highly significant".[73]

  11.  Liberty understands that the inquest into the death of Azelle Rodney is currently stalled on the grounds that it cannot receive sensitive material—the admissibility of which is regulated under RIPA. Most recently the Government has sought to argue that secret inquests are justified in order to allow them to fulfil Article 2 obligations in inquests such as these. The argument that secret inquests (which may breach Article 2 obligations) are required in order to prevent current breaches of Article 2 is circular and illogical. This is especially the case, given that the continuing ban on the admissibility of intercept evidence is unjustified. In legal terms this bar is an anomaly. The UK is the only country in the world, with the exception of Ireland, to maintain the ban on such evidence. Elsewhere in the world, intercept evidence has been used effectively in criminal and other proceedings. Liberty has long argued that the bar on the use of intercept evidence in criminal proceedings should be lifted.[74] The imperative behind the historic bar on the admissibility of intercept was clearly the protection of Security Services' methods. In Liberty's view, removing this bar would not only overcome the difficulties highlighted by the Azelle Rodney inquest but would also overcome one of the primary obstacles to bringing criminal proceedings against those suspected of terrorist offences.[75]

  12.  The Government is attempting to remedy the situation with clause 13 of the Bill which amends section 18 of the Regulation of Investigatory Powers Act 2000 (RIPA) to allow intercept material to be admissible in inquiries in "certified investigations". The piecemeal removal of the general bar on the use of intercept is a continuing trend[76] and represents a tacit acceptance of the use of intercept material. There is no reason why the removal of the ban needs to be limited only to "certified investigations". It would be far more sensible to simply remove the bar and allow established rules of evidence, both in criminal and other proceedings, to determine the appropriateness of admissibility in individual cases. The Privy Council Review of Intercept Evidence which reported in February 2008 has similarly recommended that the bar be lifted.[77] While the Prime Minister initially indicated that these conclusions would be implemented reforms in this area have not yet been forthcoming. Liberty urges the Government to expediate the removal of the general bar on intercept. In the meantime, it would be possible to parliamentarians, to amend RIPA to allow for an Article 2 complaint inquest to take place where sensitive material exists.[78]

Information sharing powers

  13.  Clause 152 introduces a new Part into the Data Protection Act 1998 (DPA) to allow for "information sharing" of data if approved by an Order made by a Minister. Liberty strongly opposes these amendments as the powers it gives are extraordinarily broad and make a mockery of the safeguards contained in the DPA. We trust that recent reports that suggest the government will amend this provisions prove correct, although we believe the entirety of clause 152 should be removed from the Bill. The amendments would enable the Secretary of State, Treasurer or a Minister[79] in charge of any government department to make an order giving "any person" the right to share information, including personal data, by disclosing it to another person or using the information for a purpose not related to that which the information was initially obtained. Note that the power is not restricted to sharing between government departments as suggested in media reports after this Bill was introduced: it could allow a private company to share personal data so long as an order was made allowing it. Such an order can confer power on any person; remove or modify any legal prohibition on information sharing and amend or repeal any Act of Parliament whenever passed. Before an order is made the order must be approved by Parliament, but Parliament has no power to amend the order.

  14.  If these amendments are enacted it will give Ministers the power, through secondary legislation, to effectively nullify the protections contained within the DPA, and indeed the very purpose of the DPA. In effect, these amendments would allow a Minister to allow any person (including a company or another government department) to share information about any person (including company information) as well as personal information that they hold on any person (eg name, address, date of birth, ethnicity, credit history, medical records, DNA and genetic information, tenancy records, social work records etc, the list goes on and on), if to do so serves the government's policy objectives. We do not have to look far for a disturbing example of what could be the subject of an order: the government's own Explanatory Notes to this Bill suggest an order could be made to allow "NHS Trusts in England to share patient data for the purposes of medical research".[80] This could be done without the consent of any of the people whose records are likely to be shared.

  15.  These amendments clearly engage the right to privacy under the Human Rights Act 1998 (HRA).[81] Any attempt to interfere with this right must be for a legitimate purpose,[82] in accordance with the law and proportionate. It is impossible to know what purpose the orders are intended to achieve, other than a "policy objective". There is no limit on this other than the very general requirement that all Ministers are prohibited under the HRA from acting in a way that is incompatible with human rights. The government argues that this is enough to demonstrate that "all such orders will be in pursuit of a legitimate aim as per Article 8(2)".[83] It is not enough for legislation to give such broad and sweeping powers to make secondary legislation and simply hope that the purpose for which an order is made will be a legitimate one under the HRA.

  16.  A "relevant policy objective" must be limited to the types of matters that could be considered to be a legitimate aim under article 8. A blanket discretionary power to allow an order to be made to amend any Act or confer any power to achieve a government policy could never be said to be proportionate and necessary in a democratic society. Further, the requirement to "strike a fair balance" between the public interest and the interests of an individual is a convenient yet misleading analysis that involves weighing up the greater good against a particular individual or group of individuals, who will often be hard pressed to show that their interest outweighs the greater public interest. It is only by aggregating the impact of the order across the many people who may be affected that the real extent of the privacy infringement can become clear.

  17.  Once the details of the proposed amendments are considered more questions arise. If data is shared pursuant to an information-sharing order will any record be made of this and the purpose for which it was shared? Who will monitor this, given the Information Commissioner is given powers to ensure compliance with the data protection principles, not with any orders made under this Part? The only role the Information Commissioner has is the ability to write a report about the order (within 21 days of being given a copy of the order) which must be laid before Parliament. If an order amends the DPA to revoke the data protection principles in any given case the Information Commissioner will have no authority to investigate any such breach, nor will he have the power to even investigate compliance with the order.

  18.  Furthermore, proposed section 50B would allow for any Act of Parliament to be amended by way of secondary legislation. This would therefore allow the order to amend the DPA itself and, on the face of it, amend the Human Rights Act 1998. The concern that secondary legislation could amend the HRA was raised when the Civil Contingencies Bill was going through Parliament which led to an amendment to ensure that the HRA could not be amended in this way.[84] If these provisions are not removed from this Bill (as we strongly propose they should be) at the very least a provision should be included to make it clear that the power to "modify any enactment" does not extend to the HRA.

  19.  If there is a need to share information between government departments to ensure that government services are appropriately distributed, this can be dealt with by obtaining the consent of the people whose data is to be shared. Alternatively, if this is not possible, interference with personal privacy should be regulated by primary legislation and fully considered by Parliament. Secondary legislation is not the appropriate vehicle to achieve any of these aims.

February 2009

















http://www.officialdocuments.gov.uk/document/cm73/7324/7324.asp









63   See Liberty's Second Reading Commons Briefing on this Bill which sets out in much greater length our views on the Bill. Available at http://www.liberty-human-rights.org.uk/pdfs/policy-09/coroners-and-justice-second-reading-briefing.pdf Back

64   Osman v UK (1999) 29 EHRR 245. Back

65   (2001) 33 EHRR 38. Back

66   Ex Parte Amin [2003] UKHL 51; [2004] HRLR 3. Back

67   R v Secretary of State for the Home Department ex parte Amin [2003] UKHL 51. Back

68   Clause 11(2). The two additional grounds for jury removal are 3 and 4: in the interests of preventing or detecting crime and in order to protect the safety of a witness or another person. Back

69   While JR of a decision not to allow a jury would have always been possible under the proposals in the CT Bill, clause 11(5) in the current Bill inserts a 14 day staying period before certification can have effect to allow for any JR challenge. This appears to have been included in an attempt to show that concerns over "secret inquests" have been addressed. Back

70   Summarised at paragraph 4 above. Back

71   As Inquest have rightly pointed out "in fact the de Menezes inquest managed to deal effectively with highly sensitive evidence and the protection of witnesses, whilst remaining largely open and accessible to all, showing that it was perfectly possible to conduct a full inquest without the need for certification". Inquest Briefing on Clause 11 of the Coroners & Justice Bill 2009 available at: http://inquest.gn.apc.org/pdf/INQUEST_briefing_on_clauses_11-13_coroners_and_justice_bill_feb_2009.pdf Back

72   http://www.guardian.co.uk/uk/2008/apr/06/military.iraq Back

73   Inquest's Briefing on the Counter-Terrorism Bill 2008 for the House of Lords Committee (page 3). Back

74   Cf Liberty's evidence to the JCHR on this subject at www.liberty-human-rights.org.uk Back

75   Inadmissibility of intercept evidence is currently a central plank in the Government's arguments for the continuous renewal of the control order regime. Back

76   The Counter-Terrorism Act 2008 allowed the intercept evidence to be used in terrorist asset-freezing proceedings. Back

77   Privy Council review of Intercept as Evidence available at: Back

78   For example along the lines of the amendment Baroness Miller tabled to the Counter-Terrorism Bill in November 2008. Back

79   Note that different terms are used in Scotland, Wales and Northern Ireland, but since the effect of the amendments are the same, for the sake of clarity we will refer to the terminology applicable in England. Back

80   Paragraph 700 of the Explanatory Notes. Back

81   Article 8 of the European Convention of Human Rights as incorporated by the HRA. Back

82   The legitimate purposes permissible under Article 8 are in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Back

83   Paragraph 964 of the Explanatory Notes. Back

84   See section 23(5) of the Civil Contingencies Act 2004. Back


 
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