Mr.
Boswell: I sense that, with some anticipation, we are
beginning to move towards the Minister’s response. I rise mainly
to associate myself with the amendments tabled by my hon. Friends, and
to give my summary and lay view about why they are important. My mind
goes back to an essay that I wrote at school some 50 years ago. That is
not because I often refer to the record about such matters, but because
I remember the comment that I received about it intensely. The essay
was in defence of free speech and, slightly to my surprise, my teacher
wrote, “Rather strident in your defence of free
speech.”
On the whole,
that is a virtue in an MP, particularly one on the centre-right who
happens to be interested in human rights. Since I wrote that essay, I
have come to understand the constraints under which free speech
operates. By way of a pre-emptive strike, I have already suggested that
the Minister should not deploy the argument that only 1 or 2 per cent.
of inquests go to juries, and that only two extant cases are stalled
because they cannot be heard in the way that the clause is designed to
address. Equally—I am sure that the Minister does not think
this, because she is a reasonable person—the Conservative party
cannot be caricatured as not being interested in the issues adumbrated
in clause 11(2), namely national security, our relationships with other
countries, the prevention or detection of crime, witness safety
and “real
harm to the public
interest”, whatever
that means.
Those are
critically important issues, and the question is therefore one of
balance and seeing how we can adjust the mix to produce an acceptable
outcome that serves the interests of openness and justice, which we all
share, while having regard to the other constraints. The default mode
should be justice and openness first and the requirement that an active
case is
made. During
the period that I have been in Parliament, there has
been—particularly under this Government, although not
exclusively—a tendency to say that because we have a problem
with something, we need to legislate. We have started to do things
“just in case”, which is the wrong burden of
proof.
Three points
concern me. The first is general confidence in the inquest system,
which is an important issue that I addressed when the Committee
considered legal aid. I make no criticism of the present Government,
but there is a widespread distrust of the establishment and a feeling
that the Executive will fix and conceal things in their own interests.
Wherever possible, that must be challenged by openness.
The right
hon. Member for Knowsley, North and Sefton, East will remember our
interesting exchanges about the remarks of the right hon. Member for
Kingston upon Hull, East (Mr. Prescott) in the Council of
Europe, who was spot on when he said that if something goes wrong, it
is looked into through an open inquiry and that that is the right thing
to do. That is my starting point, and that of most members of the
Committee. If we want inquests to work, we must ensure that they are
open and assisted by a jury, where
appropriate. There
will be problems, and I will return to those in a minute. My second
point is that measures need to be article 2 compliant. As a member of
the Assembly of the Council of Europe, I am bound to think about such
matters. The record shows that Ministers and successive Home
Secretaries—and now Justice Secretaries—have legislated
and produced the kinds of argument that I anticipate that we will hear
today, before being shot down by our higher courts or, ultimately, in
Strasbourg. Sadly, that is a pattern that we should not be proud of,
and we should try to avoid it if we can, by anticipating it. It is a
very special thing, set out in the first substantive article of the
rights, that people have a right to life and that, if life has been
taken, there should be an open process of investigation, certainly when
life has been taken by the state.
Then we come
to the third point—what is going to happen? There are two ways
that things might work. First, we might have, as it were, the literal
process of judicial review; the Committee will forgive my rather
flat-footed way of putting that. However, that is simply about whether
or not the Secretary of State followed the process and considered the
relevant factors in reaching his conclusion. Any careful Secretary of
State ought to be able to make a case for that: they will have looked
at the relevant factors; their officials will have briefed them; and
they will have gone through a process. The issue is, of course, whether
or not they made a reasonable decision at the end of that process,
taking all the facts into account, and I hope that the general
prejudice—the bias, if I may call it that—is towards free
speech, as I have suggested.
If that is
all that will happen, as these cases will only be politically
highly-charged ones, such as the de Menezes case or those that have
been cited by inquest, there will
be a very strong pressure to go through the process. If all that process
does is to say, “Well, the Secretary of State ticked all the
boxes and came to the conclusion that a section 11 investigation was
the appropriate one”, it will not address the wider concerns of
people about justice or the integrity of the jury system. Of course, it
may also give rise to considerations about whether or not actions are
article 2 compliant as well, but it will not meet the
case. The
other possibility, of course, is that judges will look behind the words
and say, “We want to look at the meat of this and see whether or
not it was a reasonable and rational decision”. The more they
widen that process, the more likely they are to overturn what a
Secretary of State may have done.
One of the
most interesting remarks in the speech by my hon. Friend the Member for
North Wiltshire concerned incompetent redaction. He said that some
redactions—of course, he did not say “all
redactions”—are entirely inconsequential. Well, somebody
took a decision that those matters should be withheld from the public
view. That may have been a purely administrative decision and certainly
not, to use a phrase, a “malign decision”, but it was
unfortunate that those parts were not available, because they should be
made available, as much as it is reasonably possible to do
so.
If we set up
the system like that, I fear that we will have real doubts about the
integrity of the inquest system and our compliance with article 2. We
may end up with a legal circus in which matters are always poised
between regular recourse to judicial review and, frankly, fairly
regular judicial reversal of the Secretary of State’s decision
in any particular case. That is why what might be called judicial
pre-scrutiny or judicial certification appeals to me as a possible
answer to some of the dilemmas. The hon. Member for Stafford has
suggested an alternative model, where responsibility for certification
stays with the Secretary of State, who then feeds into the judicial
process. I can see tensions in that idea, but it is not
unworthy. At
some point, however, if a judge is empowered to do such work as a
result of the operation of this clause, they will need to carry out a
full battery of investigation into the other vehicles that are
available. We have public interest immunity certificates, witness
anonymity or screening and the possibility of a special advocate. There
are a number of things that can be done, which the lawyers on the
Committee will be more familiar with than
me. There
is a final point about whether or not, as the Secretary of State
suggested on Second Reading, there is something inherently different in
the inquisitorial coronial purpose. I suggested in an intervention on
the hon. Member for Stafford that perhaps it is not a unique case;
there are other circumstances across the judicial spectrum where that
is the case. However, I ask myself, and the Secretary of State needs to
ask himself, whether there is not a prudential judgment to be taken.
The last thing that I want is regular recourse to a situation in which
there is difficult evidence and inquests do not proceed or are
regularly stalled. Two inquests are stalled at the moment, perhaps not
indefinitely, but because some of the information is too sensitive for
the time being, However, they are not able to proceed, which is clearly
undesirable, and it is worth the Committee considering whether that
outcome is better than a procedure
that threatens the integrity of the judicial and coronial systems by
saying that an inquest has to be held in an untypical way on the
certification of a Secretary of State—a politician, however well
motivated and well intentioned—based on some criteria that are
unduly
wide. That
was the point made by the right hon. Member for Knowsley, North and
Sefton, East on real harm in the public interest. If we are not going
to secure open justice, for reasons that others have said and I am sure
the Minister will say, we need to tie this down to the smallest
derogation possible that is consistent with national security but
wherever possible enables inquests to be held in the conventional way.
In the end, that comes back to public reassurance with the system. I am
terribly worried that, because there are one or two hard cases, we may
end up with radical damage to the overall structure, which none of us
wants, because everyone in this room values the importance of free,
open and penetrating inquiry into circumstances of death, particularly
where the state is directly or indirectly
involved.
Jeremy
Wright: I agree wholeheartedly with a lot of what has been
said by many Opposition Members and I have no intention of repeating
their points. There is one specific point that I want to reinforce and
to focus on, which is that clause 11 has no balance in what the
Secretary of State is required to do in order to certify an
investigation. For the reason for that, let us look at what the clause
says. We have done that a number of times, but it is worth doing again.
The clause
states: “The
Secretary of State
may”— if
he or she so
chooses— “certify
an investigation under this Part into a person’s death if of the
opinion that...the investigation will concern or involve a matter
that should not be made public for any of the reasons set out in
subsection
(2)”. In
subsection (2) there is a list of reasons for which it may be
appropriate to certify an
investigation— “in
order to protect the interests
of” three
things. The
right hon. Member for Knowsley, North and Sefton, East put it to my
hon. and learned Friend the Member for Harborough during the course of
his speech that the real problem might be in subsection (2)(c), but I
am not so sure. I suspect that the real problem is in subsection
(2)(a). What worries me is that the Secretary of State has got to be
satisfied, or of the opinion,
that “the
investigation will concern or involve a matter that should not be made
public for any of the
reasons”, those
reasons
being “in
order to protect the interests
of” a
number of
things. It has
already been observed, rightly, that it will almost always be in the
interests of national security not to reveal certain
information.
Mr.
Boswell: Is the point not only that it may or may not be
always in the interests of national security, but that it may be
arguably in the interests of national security? Someone who wishes to
take a view because they are committed to secrecy will always be able
to produce a plausible case for saying so.
Jeremy
Wright: My hon. Friend is right about that, but the
concern here is that it is always possible to argue that it is in the
interests of national security not to have particular information made
public. It is always possible to argue that, in the interests of a
relationship between the United Kingdom and another country,
information should be kept private. What the clause does not require
the Secretary of State to do, so far as I can see, is to balance that
concern against, for example, the interests of the public more
generally in openness, or the specific interests of the family in an
inquest in determining whether a piece of information should or should
not be kept private. That lack of balance concerns
me. 12
noon
Mr.
Garnier: Surely it is worse than that. All the Secretary
of State has to do is to hold an opinion. That opinion may, if it is
whimsical or based on an irrational foundation, be subjected to
judicial review, but it is how he couches the wording of the
certificate that will affect the policing of it under judicial review.
Simply to have an opinion that something, if made public, would be
contrary to the interests of national security leaves open a vague area
of issues that cannot be
investigated.
Jeremy
Wright: Given that judicial review has often been cited in
the debate as a safeguard that should reassure us about the operation
of the clause, my hon. and learned Friend is right to be concerned
about
it. The
problem with the clause is that it does not require the Secretary of
State to balance the interests of privacy in the interests of national
security or, for example, the relationship between the United Kingdom
and another country against the broader interests of open justice or
the interests of family and other considerations. All that it requires
the Secretary of State to do is to come to the opinion. My hon. and
learned Friend is right to say that the Secretary of State should not
come to the opinion unreasonably, or it will be subject to judicial
review, but the clause requires him to take the view that the matter
should be kept
private. As
my hon. Friend the Member for Daventry observed earlier, the only
safeguard in subsection (1)(b) is that
“no other
measures would be adequate to prevent the matter being made
public”, not
that it is necessary to keep the matter private in the overall
interests of justice, balancing all factors against each other. It
provides only that this particular mechanism is required to keep the
matter private. It deals not with the principle, but with the
procedure. My concern remains extraordinarily
substantial. Many
members of the Committee have said that we do not need to worry too
much because, if the Secretary of State were to act unreasonably, the
action would be subject to judicial review. However, if a case of
judicial review were brought before the court, it would look at the
legislation and decide whether the Secretary of State had or had not
applied it reasonably and made a decision within the parameters of the
legislation in an unreasonable fashion. All the Secretary of State is
required to do under the clause is to reach the opinion that an
investigation will concern or involve a matter that should not be made
public for any of the reasons given. It does not require him to have
come to that conclusion and to have decided that it should nevertheless
be kept private because the interests of all of those things that argue
for privacy outweigh the interests of justice more broadly. That is
missing from the clause and it is one of the reasons why it is
fundamentally objectionable. I hope that
the Minister can reassure us about what the Government will do to
restrict the breadth of the clause more generally and say specifically
how judicial review will act as a proper safeguard on the actions of
the Secretary of State in such
matters.
Mr.
George Howarth: The hon. Gentleman dismisses the role of
judicial review in a way that, on reflection, I hope that he will not
hold on to. The matter works in two ways. First, the possibility that
judicial review will be used will weigh on the mind of the Secretary of
State when he is making such a decision; moreover, all those who advise
him will say that the decision could be subject to judicial review so
he must think how he could defend his decision if that were the case.
Secondly, we must bear in mind that the process of judicial review
would never support a whimsical decision, as the hon. and learned
Member for Harborough put it. No serious judicial review process would
support a decision that could manifestly be shown to be
whimsical.
Jeremy
Wright: I agree with the right hon. Gentleman that a
whimsical decision or anything that could be categorised as
unreasonable would not survive a judicial review. I do not dismiss
judicial review; it is exceptionally important, but I am worried that
it would have only a limited impact given the wording of the clause. As
I understand it, judicial review will operate on the Secretary of
State’s discretion under the wording of this Act, as the Bill
may become. The court would look at clause 11—or section
11—and ask, “Has the Secretary of State reached a
conclusion within the parameters of this section that is
unreasonable?” If he or she has done so, the court will say that
it should be changed. If he or she has not, the court will have to
conclude that there is nothing that can be done about
it.
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