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Is it a new burden? As has been said, there are already duties on local authorities to consult local people on an ongoing basis on a wide range of issues. We are fairly confident that the duty can be absorbed into the existing processes without imposing any particular new burdens. It is a one-off duty to consult and would not apply if the local authorities had already adopted the provision. So it is not overly onerous. In answer to

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the noble Lord, Lord Skelmersdale, this is not an imposition. Authorities have structures in place; it is a one-off consultation. I believe that it strikes a sensible balance.

I do not think that the LGA statement today helps to move things on. I take the point about consultation. We have tried to consult and I will raise with some of my people what the difficulties have been. However, that has not just been from our side, as it were; it has come from both directions and we need to resolve that. It is unfortunate to have a statement coming out today that shows perhaps a lack of discussion, but I do not believe that the LGA's concerns are real. This is a sensible way forward. I thank the noble Lord, Lord Brooke, for his input and commend the amendment.

Amendment 2 agreed.

Amendments 3 and 4

Moved by Lord West of Spithead

3: Schedule 3, page 153, line 40, at end insert-

"Duty to consult about adopting Schedule 3 of the 1982 Act as amended

3A (1) Sub-paragraph (2) applies if a local authority has not made a resolution under section 2 of the 1982 Act or (as the case may be) paragraph 2(2) above within the period of one year beginning with the coming into force of section 27.

(2) The local authority must, as soon as reasonably practicable, consult local people about whether the local authority should make such a resolution.

(3) In sub-paragraph (2) "local people" means persons who live or work in the area of the local authority."

4: Schedule 3, page 154, line 7, at end insert-

"; and references in this Schedule to the coming into force of section 27 are references to the coming into force of that section for purposes other than the purposes of the Secretary of State or the Welsh Ministers making orders."

Amendments 3 and 4 agreed.

Motion

Moved by Lord West of Spithead

Lord West of Spithead: My Lords, I would like to say a few words of thanks to all those who have taken part in today's short debate, but also in the preceding days. Throughout, our debates have been knowledgeable, forceful, often passionate but also genuine and constructive. They have been held in a particularly good spirit, even when we have crept up towards midnight on occasion. The Bill leaves the House in a much better state-that is something that this House does.

I thank my noble friends Lord Brett and Lord Faulkner, and my noble and learned friend Lady Scotland, for all their help. They have borne the full force of your Lordships' inquiry on the Bill and I am extremely grateful for their support. I also thank the noble Baronesses, Lady Miller and Lady Neville-Jones-and, before, the noble Baroness, Lady Hanham-as well as the noble Lord, Lord Skelmersdale, who joined us during Committee after the summer, the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Thomas, for the role that they have played in sharpening up the

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Bill, which is much improved. I do not want to detain your Lordships any longer than necessary, but I extend my thanks to all noble Lords who have taken part.

Finally, I am sure that all of your Lordships will join me in thanking the members of the Bill team, who have been particularly focused and have tried to be helpful across the House, and those others who were behind the scenes, including opposition researchers, who have all helped in the smooth passage of the Bill.

Bill passed and returned to the Commons with amendments.

Coroners and Justice Bill

Bill Main Page
Copy of the Bill
Explanatory Notes
Amendments

Commons Reasons and Amendments

4.50 pm

Motion A

Moved by Lord Bach

1B: Page 115, line 29, leave out sub-paragraph (1) and insert-

"(1) "Subject to sub-paragraph (2), a senior coroner must suspend an investigation under this Part of this Act into a person's death if-

(a) the Lord Chancellor requests the coroner to do so on the ground that the cause of death is likely to be adequately investigated by an inquiry under the Inquiries Act 2005 (c. 12) that is being or is to be held,

(b) a senior judge has been appointed under that Act as chairman of the inquiry, and

(c) the Lord Chief Justice has indicated approval to the Lord Chancellor, for the purposes of this paragraph, of the appointment of that judge.

In paragraph (b) "senior judge" means a judge of the High Court or the Court of Appeal or a Justice of the Supreme Court."

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach):My Lords, I beg to move that this House do not insist on its Amendments 1, 2 and 216 to which the Commons have disagreed and do agree Amendment 1B in lieu. The House will be aware that on Monday the other place accepted the Government's Motion to disagree with these Lords amendments without a Division. In making the case for Motion A, I can do no better than quote from what the shadow Secretary of State for Justice, Dominic Grieve, said in the other place:

My noble friends Lady Ramsay, Lord Robertson, Lord Harris of Haringey and Lord Foulkes made much the same point during our debate on 21 October, as did the right honourable Michael Howard, one of the members of the advisory group of privy counsellors, during the debate two days ago in another place. I hope that, given this wise counsel from a number of eminent sources, the House will not insist on its amendments.



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I should add that my right honourable friend the Home Secretary has asked the intercept as evidence team-that is the team that is hoping to implement Chilcot-and the advisory group of privy counsellors, which includes my noble and learned friend Lord Archer of Sandwell, the right honourable Michael Howard MP and the right honourable Alan Beith MP, to look at the issue of coroners' inquests in the light of their emerging findings. I hope that may provide some comfort to the noble Baroness, Lady Miller, and the supporters of her amendments.

Turning to the proposed amendment in lieu, it would further amend paragraph 3 of Schedule 1, which deals with the suspension of a coroner's investigation pending the outcome of an inquiry under the Inquiries Act. On Report, the House agreed amendments, the effect of which is that the duty on a coroner to suspend an investigation pending the outcome of an inquiry would bite only if the inquiry is chaired by a senior judge. Where a coroner's investigation is so suspended, the terms of reference of the inquiry must, as an irreducible minimum, include the matters to be determined by a coroner at an inquest. We find those matters set out in Clause 5. This amendment would add another crucial condition; namely, that the Lord Chief Justice has approved the appointment of the senior judge who is to chair the inquiry.

In another place, the shadow Secretary of State for Justice pressed the Government to provide for more judicial control over this whole process. This amendment does just that. The duty on a coroner to suspend an investigation pending the outcome of an inquiry would come into play only if the inquiry was to be headed by a High Court, or more senior, judge, and the Lord Chief Justice had approved the appointment for the purposes of paragraph 3. Noble Lords who were present at the time will remember that this is just the sort of judicial lock which Lord Kingsland asked the Government to put into effect many months ago. Let me be clear about what this means. The Lord Chief Justice is being asked in practice to approve the displacement of a coroner's investigation by an inquiry. If he does not give his approval, no inquiry will be established.

It may assist the House if I explain how we envisage the process operating. It is worth emphasising that the point at which any question of establishing an inquiry arises is likely to be some way into a coroner's investigation. In cases in which Article 2 is engaged, there is likely to be an investigation by a statutory organisation such as the Independent Police Complaints Commission. The coroner would proceed with planning for the inquest only once he or she was in receipt of the report from the IPCC and any criminal proceedings had been ruled out. At that point, the coroner would review all the evidence with which he or she had been provided, which might include gists of intercept or other sensitive material, and would consider whether an Article 2-compliant inquest with a jury could be held.

To assist this, the coroner would very likely hold a pre-inquest hearing to get the views of all interested persons. If the coroner's conclusion was that the inquest could not go ahead because material that was central to the inquiry could not be disclosed, the organisation

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from which the material originated would inform the appropriate Secretary of State. That Secretary of State would then inform the Lord Chancellor who, in consultation with the Chief Coroner, would need to be satisfied that every effort had been made for the inquest to take place. Where the Lord Chancellor was satisfied that an Article 2-compliant inquest could not take place, he would write to the Lord Chief Justice to seek his approval of the appointment of a senior judge to chair the inquiry.

The Lord Chancellor's letter could outline the reasons why the coroner's investigation needs to be suspended and why conducting the investigation into the death in question by way of an inquiry set up under the Inquiries Act 2005 is more appropriate. It could also request the approval of the Lord Chief Justice of the appointment of a senior judge to chair that inquiry, and cite any other matters that may be relevant. This could be followed up if necessary by a meeting between the Lord Chancellor, the Secretary of State and the Lord Chief Justice to discuss the matter. We would expect the Lord Chief Justice to take into account what steps had been taken to enable an inquest to proceed and to consider whether other steps could be taken. The Lord Chief Justice may suggest that these are considered before he decides whether to agree to a judge being appointed to chair the inquiry.

Thereafter, the Lord Chief Justice would consider the request and, if he gave approval to the appointment of a senior judge, he could then suggest a particular person to chair the inquiry. I should add that if it is considered appropriate for a judge of the Supreme Court to chair the inquiry, the Lord Chief Justice would consult the president of the Supreme Court before giving his approval. It would then fall to the Secretary of State establishing the inquiry formally to appoint the nominated judge. At the same time, the Lord Chancellor would request the coroner to suspend the investigation if the Lord Chancellor was satisfied that the inquiry's terms of reference established the matters that an inquest would otherwise have established, as per Clause 5.

Finally, the decision to establish the inquiry and the identity of the senior judge who will chair the inquiry will be announced by way of a Written Ministerial Statement by the Secretary of State responsible for establishing the inquiry. It would then be open to any interested party to seek a judicial review of the decision to establish the inquiry.

I am sorry to have gone on for so long, but these matters greatly concerned this House a few weeks ago, and I hope that my explanation has gone some way to showing that we have taken on board the points that were raised. I hope in the light of this explanation that the House will be reassured that these measures provide an improved balance between the respective roles of the Executive and the judiciary in the very rare circumstances in which these complex issues are likely to arise. As I said, they deliver the judicial lock that the late Lord Kingsland sought all those months ago when he spoke at Second Reading. I commend the amendment to the House, and I beg to move.



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5 pm

Amendment to the Motion

Moved by Baroness Miller of Chilthorne Domer

1C: Page 115, line 28, leave out paragraph 3

1D: Page 117, line 14, leave out paragraph 8

Baroness Miller of Chilthorne Domer: My Lords, I beg to move Motion A1 as an amendment to Motion A, to leave out Amendment 1B and insert Amendments 1C and 1D. Our motion would have the effect of removing that part of Schedule 1 that empowers the Lord Chancellor to suspend an inquest.

We sent this Bill to the other place having inserted into it the ability for intercept evidence, with precautions as regards national security, to be made available to an inquest when needed. Last Monday the other place held an excellent debate which has given this House a clear steer on the two deep concerns that are shared on all sides: first, whether intercept evidence should be made available; and secondly, if such evidence is to continue to be unavailable, whether the Government should have a power under the Inquiries Act to substitute an inquiry for an inquest.

I shall address the first concern, the question of whether intercept evidence should be admissible. The honourable Dominic Grieve summed up the feelings of most MPs when he said,

He was absolutely right to identify the anxiety we in this House feel about the Government's approach to these issues which was manifested in the vote we called for on intercept evidence. I am grateful to the honourable Dominic Grieve for identifying so clearly the problem we had with it. I am also grateful to the honourable Andrew Dismore for retabling in the other place the amendment we brought forward at earlier stages. It is the amendment we are now debating, and I believe that it allows us to consider the heart of the issue.

I thank the Minister for spelling out the detail of how an inquiry would work and for giving us a number of reasons why the Government feel that the route of an inquiry is the right one to take. He has not mentioned today that unless we change the law, in the Government's opinion certain inquests cannot be held. However, on Monday the honourable Frank Dobson was concerned and puzzled that in the de Menezes case, where some of the evidence was clearly related to national security, the existing law worked well. He went on to say that:

"We should bear in mind that we were told by Ministers that there was no chance of an inquest in the de Menezes case unless we change the law-but we did not change the law, there was an inquest, and it was carried out quite satisfactorily".-[Official Report, Commons, 9/11/09; col. 64.]

The question now before the House is whether it is reasonable in such sensitive cases to give the Government the right to order an inquiry under the Inquiries Act instead of holding an inquest. As I thought the Minister would in moving the government amendment, he prayed in aid the fact that at the Committee stage Lord Kingsland

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tabled some probing amendments to see if the inquiries route could be made more acceptable. But the Minister has forgotten how he concluded that he was uneasy about using the Inquiries Act for this purpose because its procedures are initiated by an executive act of the Secretary of State and the investigation flows from that act. By contrast, coroners are centuries-old, well established public figures who are independent of the Executive. As a matter of principle, one would wish that all inquests were conducted through the coronial system.

I appreciate the Lord Chancellor's remark that the Government have been up hill and down dale on this matter, and we sympathise with that because it is not an easy issue. But the one case over which he and these Benches have tussled is not a reason for blowing a hole through the entire inquest system. The honourable Bob Marshall-Andrews said in the other place:

"The problem that this draconian measure seeks to remedy either does not exist or is so infinitesimally small that it would be a grotesque misuse of the House's power to hand to the Executive such a very large extension to their powers".-[Official Report, Commons, 9/11/09; col. 69.]

I know that the Lord Chancellor said, in effect, "Trust me. There is no reason not to trust me". However, if this provision was introduced on to the statute books, we would have to trust not only him but as yet untried and unknown Lord Chancellors. If a less trustworthy one started to misuse the power, he would certainly not take it away from himself. Further, the Lord Chancellor said that it would be used only in exceptional circumstances, but the Government would judge what circumstances were exceptional and they would have the power to decide whether to substitute an inquiry for an inquest.

The Lord Chancellor said that he and the Home Secretary will bring forward a protocol to set out the circumstances in which such an inquiry would take place, but such a protocol could have been before us for discussion months ago if it was considered useful. It could have been in the Bill if the Government had felt it was so valuable.

Once the concept that the Government can order an inquiry instead of an inquest has been established and has gained a statutory footing, we will have taken a big step down a road where the public will lose all trust that we have maintained adequate defences against state impunity. The Lord Chancellor has underestimated the deep distrust and suspicion that is aroused when the Government try to circumvent the centuries-old, trusted system of inquests, with its independent coroners and juries, which is essential for society. This House is the guardian of long-term good over short-term expediency. I beg to move Motion A1.

Lord Henley: My Lords, I will in due course speak to Motion A1. I start by addressing Motion A because, without doing so, I cannot address Motion A1. I thank the Minister for his detailed explanation and for the assurances that he gave the House. I wish to put a few questions and seek a few further assurances, although he gave a number of them in his opening speech.

I am grateful to the Minister for quoting my honourable friend in another place, particularly when he referred to the difficulty of introducing intercept evidence at

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this stage. However, to be fair to my honourable friend, I ought to complete the quotation. The Minister quoted him as saying that our party is,

The Minister then stopped. However, it is worth quoting the extra sentence that my honourable friend added, in which he made it quite clear:

"That is desirable and it is a shift that needs to take place".-[Official Report, Commons, 9/11/09; col. 60.]

Having said that, we feel that we have taken the matter as far as we can in this Bill. I have no doubt that in future there will be further opportunities, in both this House and another, to consider the benefits of allowing intercept evidence to be heard in courts, including coronial courts. However, it is not necessarily a matter that we need to discuss further at this stage.

Moving on to what my honourable friend Mr Grieve and my late noble friend Lord Kingsland referred to as the "judicial lock"-my late noble friend made these points many months ago-the Minister has made an effort to meet this with Amendment 1B, which we are asked to agree in Motion A. As the Minister explained, the key addition is new paragraph (c), which provides that the Lord Chief Justice must indicate his approval to the Lord Chancellor of the appointment of a senior judge to chair an inquiry. In deciding whether to accept the amendment, we have to ask ourselves whether that is enough.

If one were marking an exam paper, one would have to say that the noble Lord could have done slightly better, but we are grateful for what we have. We have asked for the route to be one of formal application and, in talks with the Lord Chancellor, the Government have given us the impression that it is too late in the passage of the Bill to insert that the Lord Chancellor must make an application to court for an inquest to be suspended and an inquiry to be established. That route was proposed some time ago, and I cannot see why the Government could not accept it. In fact, I wonder whether, if it was really something that they found attractive, they could not even now do something about it-but that possibly is too late. I leave that thought with the Minister.


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