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It has been a fascinating debate, and I feel that we may return to this later in our discussions, but I have tried to explain to the Committee tonight why we are not immediately attracted to the amendments.
Lord Thomas of Gresford: Let me pursue the point that I was making. Let us suppose for a moment that a young soldier has been killed as a result of being sent on patrol in a Land Rover that is not adequately protected against landmines. Let us suppose that that fact emerges in the course of an inquest. Do the provisions of the Bill prevent the coroner or a jury from making that absolutely clear in the verdict or decision that they make as a result of the inquest? That is the problem. It may very well inhibit a jury or a coroner to be told: “You cannot determine civil liability in this case”, when they are faced with the clearest evidence that inadequate provision has been made for the safety of the young soldier.
I give that only as an example; I could follow it through with factory cases and many other instances, as the noble Lord will appreciate. I would be grateful for his assurance that a jury or a coroner can properly comment and come to a conclusion where there is clear evidence of failure of system or process—the provision of adequate equipment or something of that kind.
Lord Bach: As I understand it—I want to be very careful to answer the noble Lord as accurately as I can—the answer to his question is yes, they can do that. They have to be very careful not to frame any comment or decision that would name a particular person as being necessarily guilty of a criminal offence or liable for a civil suit.
Lord Thomas of Gresford: I am not so much concerned with the person but with the Ministry of Defence, for example.
Lord Bach: As I am advised, coroners could refer to such matters as the noble Lord raises—inadequate provision for the safety of a soldier, for example—in a report to prevent further deaths, and include that finding in the determination of the inquest.
Lord Neill of Bladen: Does the Minister thereby recognise that, in many cases, a full and accurate statement of the facts will inevitably expose responsibility? It is a complete fallacy to proceed on the basis that the facts are one package over here and responsibility is a separate package over there. The Minister is nodding as if I have got the point right.
Lord Bach: Not for the first time, I agree with the noble Lord. It would be a fallacy to divide those two things. Coroners are now advised to tread very carefully indeed in matters as simple as naming people who may be guilty of criminal offences as a consequence of the facts that have been found. If they concentrate in their
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Lord Neill of Bladen: Criminal liability may involve other factors such as guilty mind, but from the point of view of the civil law, the proposition which I put, which the Minister has accepted, is the general truth that, often, the accurate and full finding of the facts will point the way for responsibility for civil liability.
Lord Alderdice: In precisely the terms that the Minister himself used, coroners have to tread very carefully. That is the concern that led us to raise questions about subsection (3), because it seemed to us that it was precisely that urging toward caution which would lead people to say as little as they reasonably could, rather than to expand as fully as possible. I am very grateful to the noble Lord for generously exploring this issue. As he rightly said, I am sure that we will return to it.
Baroness Finlay of Llandaff: I thank the Minister for his explanation and for correctly interpreting the intention behind all of this. In summing up, he spoke about guidance. I shall push a little bit further on whether there is an intention to include in guidance that best practice would record the broader context of the how, not the narrow. We could, perhaps, seek in guidance that best practice by the coroner would, wherever possible, give a steer to the Office for National Statistics over which coding might be appropriate, without necessarily making that the definitive coding. The narrative verdict would then provide a backdrop, if you like, to the coding.
Rather than coding cold and blind, however, the ONS would have some guidance from the person who had actually been there and heard all the information that came forward so that the facts could be appropriately classified. Those facts have a long-standing implication—in fact, for the rest of the lives of the bereaved. They live with whatever was found at that time, so I should like to push the noble Lord a little further on guidance and on good and best practice.
Lord Bach: I can say only a little about guidance, but I should have thought that what the noble Baroness has said on the guidance that may be issued once the Bill becomes an Act is sensible and we are putting that into operation. Whether it should be in the Bill is a different issue.
The Lord Bishop of Winchester: What is the impact of Schedule 4(6) on page 127, to which reference is made in the clauses we are discussing, on the discussion that we have just had? As I read it, it seems to be making the precise points that the Minister seeks to deny.
Lord Bach: I certainly hope not.
The Lord Bishop of Winchester: I can understand the noble Lord saying that. My question is whether that is the case.
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Lord Bach: If we look together at paragraph 6 of Schedule 4, it reads:
“Where ... a senior coroner has been conducting an investigation ... anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and ... in the coroner’s opinion, action should be taken to prevent”—
- “the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances, the coroner may report the matter to a person who the coroner believes may have power to take such action”.
It then proceeds to say what will happen next.
The point that I was trying to get across in responding to this debate was that this was a power that coroners would be given under the Bill. The power already exists, as I understand it, under current rules and I should have thought that those who have spoken in this debate would welcome that power. In other words, if there were potential deaths to be prevented in future, the coroner should have a statutory way of getting that message across to the appropriate parties.
9.30 pm
Lord Alton of Liverpool: I thank everyone who has taken part in the debate on this group of amendments, and not least the noble Lord, Lord Bach, who has shown great patience in dealing with these complex questions. Ten amendments have been grouped together and we have heard some very perceptive contributions during the debate, not least from my noble friend Lady Finlay and from the noble Lords, Lord Alderdice and Lord Thomas of Gresford, who through the powerful story he used caused us all to pause and consider what it is that we are trying to achieve. Although the noble Lord, Lord Bach, has been generous in making commitments to the Committee about guidance that may be given and that he will reflect on some of the direct questions raised, I should like to go back for a moment to the issue that principally divides us.
The issue is whether or not we should incorporate the words set out in Article 2 of the European Convention on Human Rights. In my own amendment I sought to remove the word “how” and replace it with the rubric,
That gives us a wider canvas on which to paint the circumstances. When the noble Lord, Lord Alderdice, said that the present wording in the Bill is a narrow interpretation of the convention and that there is an opportunity here to be rather more generous in how we set out the legislation, he got the point right. He was also right to remind us that the purpose of any coroner’s inquiry is to get to the bottom of what occurred. He said that we had to do this in the interests of justice and to expose systemic failings. I strongly agree with that.
One of the problems is that our failure to interpret a duty that has been imposed on us not just by the convention but also by jurisprudence in our country—I referred to the Middleton case earlier—may lead to some practical consequences. I hope that between now and the Report stage the Minister and the Bill team will reflect again on how we would make retrospective the commitment the noble Lord gave us when he said that during the course of a coroner’s inquiry the
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We have a lot to reflect on when we read the Official Report tomorrow and consider what the Minister has said. For the time being, however, I beg leave to withdraw the amendment.
Clause 6 : Duty to hold inquest
Amendments 12A and 13 not moved.
13A: Clause 6, page 4, line 14, at end insert—
“( ) The senior coroner shall maintain a record of all deaths that were notified to him, but where an inquest was held, as a result of the decision to discontinue an investigation.”
This amendment has a typographical error in it that I should like to draw to the attention of the Committee. It should read:
“The senior coroner shall maintain a record of all deaths that were notified to him, but where no inquest was held”.
At the moment the amendment states “an” inquest. The amendment simply seeks to make sure that decisions become consistent across the whole of the country. If a coroner is holding far fewer inquests into a certain type of death than another, that would be revealed. The amendment would ensure consistency of standards right across the country as the Chief Coroner would have access to a register that collates and compares different coronial areas. That is all I want to say in explanation of that amendment, because at the moment, although such a record might be held somewhere locally, there is no way that the person who will become the Chief Coroner will be able to access that. As far as I understand, it would need to be held in a consistent format.
Lord Alton of Liverpool: I wish briefly to support my noble friend Lady Finlay in moving this amendment. In the previous group of amendments, the noble Lord, Lord Bach, welcomed what my noble friend mentioned about the importance of collating information, not least for the World Health Organisation to be able to use those statistics in future. The importance of accuracy in the records that we collect is a point which was extremely well made and which is pursued further in Amendment 13A. I hope it will commend itself to the Minister.
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Lord Davies of Oldham: I acknowledge that accurate recordkeeping is a vital part of the coroner’s role and can help to identify trends. My noble friend referred to these issues a few moments ago. This amendment places in the Bill a requirement to record discontinued investigations. I reassure the noble Baroness, Lady Finlay, that coroners do keep this information. It is recorded in the annual statistics about the operation of the system, which are published by the Lord Chancellor. The most recent publication was submitted on 7 May. For example, in 2008 approximately 235,000 deaths were referred to the coroner. There were around 31,000 inquests. This shows, if I do my sums right, that the vast majority of investigations—204,000—did not proceed to an inquest.
Under our proposed reforms, this type of recording will continue and will be included with any enhancements that the chief coroner requires, or thinks advisable, in the annual report on the coroner system, which the chief coroner will make under Clause 29. In view of this assurance, I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Finlay of Llandaff: I am grateful to the Minister for that assurance. My amendment was intended to probe and to make sure that the system would continue and be improved consistently. I beg leave to withdraw the amendment.
Clause 7: Whether jury required
Lord Bach: Following the announcement on 15 May by my right honourable friend the Lord Chancellor, the government amendments in this group, of which Amendment 14 is the first, intend to remove from the Bill the provisions in respect of certified coroners’ investigations. I take some comfort from the fact that, while there has not yet been a meeting of minds on the solution, there is a general recognition that, under the law as it currently stands, there is a real practical problem. There will be very rare cases where a coroner is obliged to summon a jury, but where there is sensitive material which is relevant to ascertaining the circumstances of the death but which cannot be disclosed publicly, including to the members of a coroner’s jury or to the family of the deceased. If the sensitive matters are central to the determination of the issues it may therefore be impossible for an Article 2-compliant inquest to proceed. This includes those cases where the material concerned is intercept material, the use of which in legal proceedings of any kind is strictly limited, as the Committee knows, by the provisions of the Regulation of Investigatory Powers Act 2000.
That, in a nutshell, is the problem that the Government have tried to address and which Clauses 11 and 12 were intended to deal with. However, the problem remains with us, with or without Clauses 11 and 12. Existing safeguards such as public interest immunity certificates, anonymity for witnesses, heavily redacted
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We have acted in good faith in seeking to find an acceptable and workable solution within the framework of both the current coroner system and our reform model. We responded positively with further amendments of our own when concerns were expressed about these provisions, both in the other place and by those outside Parliament who share everyone’s commitment to ensuring that families get the fullest answers to questions they have about the death of a loved one. However, it is clear that none of these amendments has commanded the level of confidence and cross-party support that we wished for.
In the light of this we need to find an alternative way forward. In future, for those rare investigations into deaths when an Article 2-compliant inquest cannot take place because the inquest must be held with a jury and there is sensitive material which is central to the investigation but cannot be publicly disclosed, the Government will consider establishing an inquiry held under the Inquiries Act 2005. So the death will be investigated in that way rather than by way of a coroner’s inquest.
The Committee will be anxious to know what the terms of reference of such an inquiry would be. Indeed, the noble Lord, Lord Kingsland, spoke on this in the Second Reading debate. As those who have read the provisions of the Inquiries Act will know better than I, this is a matter to be agreed between the Secretary of State establishing the inquiry and the chairman appointed to lead it. However, when an inquiry is held instead of an inquest, the terms of reference are almost certain to include the matters to be ascertained by a coroner set out in Clause 5, which we have just debated.
Inquiries are not a lesser form of inquest and a death will be investigated just as thoroughly at an inquiry as at an inquest. Most campaigners would regard the kind of detail it can delve into as being at the very top end of an investigation into a death, an event or a series of events. It is not unusual for inquiries to be sought after an inquest has been held in order that further and wider matters can be considered. This proposal is not a second best for families but a genuine alternative.
It is in that context that I move Amendment 14, which is consequential on the eventual removal of Clauses 11 and 12. It is appropriate that I should stop there and allow the other amendments in the group to be spoken to, and then come back and try to answer some of the points that are raised.
Baroness Miller of Chilthorne Domer: My Amendments 33 to 36 are grouped with the government amendments. The Minister is right, there is a practicable problem. We debated it at length during our discussions on the Counter-Terrorism Bill and again when that Bill came back from the other place. We left it as unfinished business.
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9.45 pm
There was a great deal of unhappiness at the idea of secret inquests, so we are very pleased that the Government have withdrawn that idea, at least. I am not going to address the RIPA provisions right now, because I have Amendment 30 to deal specifically with those more technical issues later, but it is impossible to address this issue without referring to RIPA. As the Minister said, every time we come to address this issue, we seem to be dealing with the one case—the unfinished inquest of Azelle Rodney—because this RIPA evidence is so sensitive. However, when we considered the anti-terrorism Bill, we were talking about two cases, because there was a second case, that of Terry Nicholas. In the intervening time, the Terry Nicholas case has, interestingly, been settled entirely by a coroner, redacting much of the evidence, with no problem at all. She made a series of judgments that enabled the inquest to go forward, be heard and be resolved. What the Government felt at that time was insoluble has since been solved, so we are looking at putting on to the statute book a whole different method of holding inquests simply to solve one case. I wonder whether that is a good way to do legislation.
I see the downsides of an inquiry and I am not at all resolved that the Government have got the right solution to the problem. An inquiry, under the Inquiries Act, does not really fulfil any of the requirements that we are looking for with an open inquest. To begin with, the Secretary of State controls the appointment and the remit of the panel. There is also the big question as to whether it will cover the same ground as the statutory requirements of an inquest. As we discussed earlier in relation to the circumstances, it would be for the Minister to define all that. Therefore, whereas the coroner would control an inquest, it is likely that there would be strong ministerial control, as the Inquiries Act is drafted. There would be no jury asking questions, deciding facts and meeting public concerns. There would be private sittings, which would tend to be much less open and accessible to the public—obviously, because they are private. There is none of the purported scrutiny of the decision to keep evidence secret that the judicial review provisions would have provided for and there may not be sufficient funding made available to the parties to challenge any of this.
The only possible advantage is that, following the Counter-Terrorism Act 2008 amendments to RIPA, at least such inquiries can now receive RIPA material. That obviously gets around the issue of this one inquest that cannot be held at the moment and, in fairness to the family, they would very much welcome a resolution to the fact that their inquest cannot be heard. However, I think that, to resolve that one issue, we are in danger of putting on to the statute book a system of holding inquests that runs completely counter to the tone of all the discussion and debate that we have had this evening about having as full disclosure and discovery as possible, not only in the interests of the family, but in the wider interests of society. When we debated the Counter-Terrorism Bill, we cast our minds back to the “Death on the Rock” shootings—I expect that that would now be held as an inquiry and very little would come out.
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