Mr.
Gray: My hon. and learned Friend missed the second
paragraph of the Inquest brief, which names the second inquest
regarding the case of Mr. Terry Nicholas, a 52 year-old
black man who was shot by the Metropolitan police in Hanger lane in
2007. Inquest mentioned both cases in the
overview.
Mr.
Garnier: I am grateful to my hon. Friend. That paragraph
states:
“INQUEST
is also working closely with the lawyers for the family of Terry
Nicholas, a 52 year old black man who was shot by MPS officers at
Hanger Green, London W5, on the evening of 15 May 2007, after he had
left the rear of restaurant premises. In October 2008, it emerged that
the inquest touching on this death was also stalled because the inquest
could not receive sensitive material and that the Government proposals
in the CTB regarding secret inquests were supposed to make it possible
to resume the inquest into this death
too.” We
now know the identities of the two unfortunate people who will be the
subjects of the inquest. As I understand it, the Government—I
hope that the Minister will tell me that I am wrong about
this—are basing the clause on those two cases, and the
possibility that similar cases may happen in the future. But the
numbers are tiny, and the Government are building a vast obstacle to
public acceptance on the basis of two cases, which, with common
sense—as deployed by Sir Michael Wright in the de Menezes
case—could be
overcome. I
urge the Government to think carefully about the clause, to withdraw it
before we attempt to vote it down, and to come back with something
rather more sensible, either on Report or in the other place. The
Opposition—I think I can speak for both Opposition parties in
this Committee—are not against all forms of confidentiality. We
accept that there will be occasions when sensitive information must be
kept away from families and the wider public, but mechanisms and
procedures that are already available make the clause wholly
unnecessary and deeply counter-productive. Therefore, I urge the
Minister to take the combined view of the Opposition seriously, because
we are here to
help.
Mr.
Kidney: I support the Government’s public policy
objective in the clause—I can even vote for some of the proposed
restrictions in the clause, and I am happy to support the Government in
a clause stand part vote. But that is not the same as saying that I
agree with the clause, and I draw attention to the bit that I do not
agree with. As is my way, I will not dwell on my negative views, but
will put forward a positive suggestion of a way
forward. As
the hon. and learned Member for Harborough has said, we are not so
naive as to think that all national security and public interest
information that is collected by the state should be put on public
display in courts of law or at inquests. In the current case, we have
two real examples of inquests that are not going forward at the present
time, because of an inability to get around the problem of holding the
inquest and getting to the truth of how and why somebody died without
disclosing that kind of information. So, there is a problem, and we
have to address
it. We
are not debating a one-stage process, but a two-stage one. The first
stage is certification of an issue of national security or public
interest. The second is the rules for running an inquest to comply with
such a certificate—in other words, to ensure that matters that
should not be in the public domain do not get there. The first of those
two stages, public interest and national security, is the
responsibility of the Executive. The second—how courts and
proceedings are run—is the responsibility of the judiciary. The
clause rolls together those two stages. Once the Secretary of State
gives the certificate, we set out, in the clause, the things that
follow; in other words, the High Court judge sits as the coroner, there
is no jury, and parts of the inquest are held in private.
It is
convenient for us to give debates titles, so that we understand what we
are talking about. The current title is “secret
inquests”, but we should not lose sight of the fact that the
High Court judge running such an inquest would hold most of it in
public, but the bit that we are talking about would be held in
private. The
issue concerns how one protects relevant material that should not be
disclosed. The hon. and learned Gentleman talked about the
naivetÃ(c) of people who think that all information should be
disclosed. Just to hammer it home, the briefing from the Commission on
Equality and Human Rights
states: “The
Commission appreciates that non-disclosure of sensitive material is
sometimes necessary in the interest of national security and to protect
the public interest.”
When we took evidence
from Liberty, Isabella Sankey
said: “Often
there are very high stakes in such proceedings. Our point is that
safeguards are already in place to ensure that certain individuals are
not identified and that various bits of information are kept from the
jury or the public when such inquests are
held.”——[Official Report, Coroners and
Justice Public Bill Committee, 3 February 2009; c. 61,
Q133.] That is
an acknowledgement of the principle.
Mr.
Boswell: Does the hon. Gentleman agree that the fact that,
as Liberty said in its evidence, very high stakes are involved in such
cases belies the argument that the Government adduce from time to time
that such cases are unimportant, because they make up only 1 or 2 per
cent. of inquests. Such inquests are exactly the ones on which both the
general public and the media will
focus.
Mr.
Kidney: I have not heard Ministers say that because juries
are only empanelled in 2 per cent. of inquests, jury inquests are not
important. Everybody appreciates that the most important 2 per cent. of
inquests get a
jury. Some
say that that certification process, which I think of as stage 1,
should pass from the Secretary of State to a High Court judge. That is
absolutely wrong in principle and in practice, which is why I support
the Government and not the Opposition amendments. In principle, the
Executive have responsibility for national security and public safety.
The top priority of any Government is to keep us safe, and national
security and the public interest are part of keeping us
safe. The
practical point is that the Executive collect all the intelligence.
They assess it, they interpret what it means, and they have the
knowledge, expertise, context and public accountability to do that job,
which judges do not have.
David
Howarth: The issue is not who has the information, but
whether there is any control over the decision that a matter is one of
national security. If there is no judicial control over that decision,
national security simply becomes a way in which the Executive can avoid
public scrutiny, so it cannot just be either the Executive or the
judiciary—it has to be both. It is not a question of the extent
to which the judiciary will defer to the Executive’s expertise,
nor a question whether the judiciary should be excluded
altogether.
Mr.
Kidney: I agree. When the hon. Gentleman hears my
suggestion, he will hear that I still see a place for judicial review,
just as there is now of the certification part of the two-stage
process. That means the judiciary
getting involved in whether the Government are behaving properly in
giving the certificate in the first place, which I would
preserve. On
the other hand, the Executive’s accountability for their
judgment includes not only judicial accountability, hence the judicial
review point, but public accountability, which I argue is via the
legislature, so the legislature’s role starts now. When we get
the legislation right, it continues to hold the Government to account
for their decisions.
The
legislation is currently drafted too widely. The grounds on which the
Secretary of State can conclude that a matter should not be in the
public domain are too wide, which is the issue with clause 11(2)(c),
which goes beyond national security and public interest to include very
general crime-fighting and witness protection. Clearly, that is wrong,
and we need to narrow the grounds on which the Secretary of State can
give a
certificate.
Mr.
Gray: I agree. Will the hon. Gentleman therefore accept
our amendments 42 and 43, which specifically say that there should be
only one reason for allowing certification, namely, national security?
That is quite beside the question of whether we will vote for stand
part. The main thrust of our amendments is that only national security
is a good reason. Will he join us in supporting the
amendments? 11.15
am
Mr.
Kidney: No, those grounds are too narrow. The hon.
Gentleman was not listening when I said national security and public
protection. “Public protection” can be drawn too widely
and end up including crime-fighting, but it must be read in the context
of national security issues. However, public interest is slightly
different from national security, and it is the two together that are
valuable and that should be
preserved. The
clause is too wide and too prescriptive in proposing a High Court judge
as coroner, no jury and parts of the evidence being taken in private.
It should separate the certification, which is properly the role of the
Secretary of State and should occur on the narrow grounds that I have
explained. As for the changes to the rules for running the inquest to
which the certificate relates, the clause should provide a menu, not a
single solution, of responses to the certificate, and the judiciary,
not the Executive, should rule on the selection of the options from the
menu. Under
my suggestion, the Secretary of State would issue a certificate that a
matter should not be in the public domain because of national security
or public interest, and it would be subject to challenge by judicial
review, as in the present law. In any event, the Secretary of State
would give the certificate to a High Court judge. I would be happy for
the Secretary of State to give the judge, in addition, the Secretary of
State’s proposals for modifying the running of the individual
inquest from the menu of options. For example, in the most serious
cases, the Secretary of State might say, “I am giving the
certificate. That means that it should be a High Court judge as
coroner, no jury and some bits in private.” However, the judge
might say, “Well, I am looking at what the law says, and I have
a set of
options.” I assume that we want the law to say that the judge
should choose the options that make the least change to existing
practice in every other inquest, so the options would be in rising
order of seriousness, and the judge would then select from
them. Mr.
Garnier: By logical extension of that argument, next time
we have a serious espionage case, the Foreign Secretary or Home
Secretary ought to go to the court and say, “You will conduct
the trial in this way, select from a number of options”, instead
of, as currently happens, the Crown Prosecution Service going before
the court and saying, “This information is sensitive or secret,
could you therefore devise a procedure for this particular element or
part of the trial that would not allow that to
happen?”
Mr.
Kidney: The hon. and learned Gentleman is keen to refer us
to the equality of criminal cases, but there is a difference, which the
Secretary of State gave on Second Reading and which I will repeat in a
moment. The
hon. and learned Gentleman is describing what happens now, with the PII
route. The prosecution goes to the judge, with the PII certificate, and
says, “We think that some things cannot be heard in public, so
these things should happen.” In effect, the judge then says yes
or no and chooses from the existing options under the criminal justice
law in this country. I suggest the same for coroner’s inquests.
Whereas some of the briefings and arguments say that an inquest exactly
equates to a criminal trial and, therefore, the usual PII procedures
should apply, I am saying that inquests are something different, so a
variant on the PII procedure should apply. That is what my amendment
suggests. Crucially,
the judge decides whether to modify the usual inquest rules and, if so,
in what ways. We would have regard to all the issues argued
about—security vetting of the jury, holding parts in private,
banning reporting of some parts and witness anonymity—but I
would argue that in the most serious cases, which the hon. and learned
Gentleman has said occur only once or twice in a number of years, the
other options that the Government already have in clause 11 should be
part of the menu. The High Court judge might say, “Yes, this
case is so serious that these are the options that I have had to
choose.” In that way, we would reinforce the roles of the
Executive versus the judiciary and reinforce public confidence in the
system by getting past that obstacle. Those are my suggestions, which I
put forward for the Minister’s consideration. My actual vote at
the end of the debate will depend in part on the warmth or coolness of
the assurances that I
receive. On
Second Reading, my right hon. Friend the Secretary of State
acknowledged that the clause may need attention, so I hope that my
suggestion will be
considered. He
reminded us that there is a difference between a criminal prosecution
and an inquest, which is that an inquest has to be held and has to
identify the cause of death and why it happened. In a criminal case, if
the state thinks that some information might come out that it would not
want to do so, the state can choose not to rely on that information in
evidence, but to have a go for the conviction without it, or in a more
severe case choose to abandon the prosecution and not bother at all.
Those are serious choices to make, if the person on
trial is dangerous, but nevertheless the state has the option to make
those choices, but there is no such option with an inquest, which must
take
place. That
is a significant difference, which the Secretary of State was right to
discuss on Second Reading. Some people have run that argument together
with his suggested solution—clause 11—and said that it is
unfair, unjust, against article 2 or
whatever.
Mr.
Boswell: I trespass on legally thin ice perhaps and seek
the hon. Gentleman’s advice. The situation may not be as
absolute as the Secretary of State has indicated. For example, in cases
involving the parole of existing-sentence prisoners, there would be
judicial hearings before a judge and, in certain cases, even the
special advocate procedure can be used, because of the extreme
sensitivity of such cases. Does that affect the issue at
all?
Mr.
Kidney: I thank the hon. Gentleman for his helpful
intervention, which shows that there are other situations in which such
considerations are wrestled with all the time. I am grateful for that,
but I have put forward other
suggestions. As
a footnote, for completeness, the Commission for Equality and Human
Rights briefing and Liberty’s evidence to us contemplate
situations in which evidence is withheld from an inquest. Even for an
inquest held in public and with a jury, the withholding of information
has problems of its own. The jury is charged with coming to a
conclusion about what caused the death, and we must consider the effect
on that conclusion of some evidence being withheld. The Coroners
Society has pointed out that it is sometimes a difficult decision to
say, “The inquest needs to go ahead with all the evidence, but
not all the evidence can be disclosed to the public”, or that,
because some of the evidence should not be disclosed, it should be
withheld from the jury, which would carry on and make a decision
without it. They are imperfect solutions and sometimes it would be
right to do one rather than the other, but there is no absolute. My
proposal is a variant on clause 11 and new clause 10, and it is a
sensible way forward. I look forward to seeing whether the Minister
agrees.
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