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Mr. Marshall-Andrews: I will be very brief-briefer than I would otherwise be-one reason being that like many Members of the House, I would like to hear the views of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard), if, indeed, Mr. Deputy Speaker, you were minded to call him at any stage. In that hope, I will be as brief as I can be.
I am grateful to be able to make a contribution in order to deal with what is a grotesquely overstated problem on the part of the Government. My good and right hon. Friend the Secretary of State has always been a master at creating theoretical, if not to say theological, problems with which he is able to torment Labour Back Benchers-he has had a good go at my hon. Friend the Member for Hendon (Mr. Dismore)-and at trying to get them to sort out such problems. The plain fact is that by the Secretary of State's own admission, 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 the Executive such a very large extension of their powers.
May I explain why? Juries know all about covert, intercept, intelligence-based evidence. Let us take for the moment the example of juries in criminal trials. If a jury sits down and hears that a massive police operation nipped a huge bank robbery in the bud, they know perfectly well that covert information and intelligence was behind it, unless they are barking mad and come to the conclusion that the entire flying squad happened to be assembled at that particular point. Of course, if that arrangement is successful, there is no problem. The problem does not arise, and we do not have to worry about public interest immunity in a criminal court if there is a successful operation and people are caught red-handed.
It is exactly the same with a coroner's inquest. If somebody has been shot by agents of the state because they were believed to be a terrorist, there is no problem if it turns out that the person is a terrorist who was carrying bombs or was in the process of plotting. Such problems do not exist. Coroners will not be asked to investigate that kind of evidence. The problem happens when something goes terribly and demonstrably wrong, which is why it is so rare.
However, when something goes that wrong, and when something goes as wrong as it did the Jean Charles de Menezes case, there must be a public inquiry. Having a private, secret inquiry in those circumstances would be
a devastating indictment of our system and of the use of Executive power. Despite the engaging way in which my right hon. Friend the Secretary of State talks about judicial oversight and superior judges-as I said in an intervention, it is always nice to hear him adulating superior judges on the occasion that he wishes to enlist their assistance in taking over jury trial-the measure is no counterweight or counterbalance to a jury sitting in an open inquiry, listening to how something has gone terribly and demonstrably wrong at the behest of the Executive.
My right hon. Friend says that the power will be exercised only rarely, but we have heard that before on many occasions-I am going to stop in a moment to give the right hon. and learned Member for Folkestone and Hythe a decent rein-such as when the House debated giving up jury trial in tampering cases. It was said in this House and in the other place that it would only happen in the rarest of cases, and only when the defence had been heard in full on the basis of all the evidence. That has simply not happened. There are two cases now in which the defence has simply not been informed of the reason why jury trial has been denied.
My right hon. Friend the Secretary of State may believe that it will happen rarely or will never be used, but the power that we would be giving to the Executive should never be given by this House, unless we were told in the clearest possible terms that to do so was a grave and immediate necessity. No one has made that case today, and in those circumstances I will take great pleasure in supporting the ingenious amendment tabled by my hon. Friend the Member for Hendon (Mr. Dismore). I could not get it past the Vote Office, but it is a brilliant idea.
Mr. Howard: I must first correct the Secretary of State. He said that I was a member of the Chilcot committee, but I was not a member of the original committee. The Conservative representative on that committee was Lord Hurd of Westwell, and I took his place when the committee changed its responsibility and began to supervise the work of the officials in the Home Office who have sought a way to meet the nine tests set out by the original committee. Although we have not yet achieved the objective of finding a scheme that meets those tests, those officials have been carrying out their work thoroughly and conscientiously in their attempt to meet that objective.
I decided that I should contribute to this debate because of my membership of the committee and I am therefore primarily concerned with the question of the admissibility of intercept evidence. Until the contribution by the hon. Member for Cambridge (David Howarth), it looked as if I need not trouble the House with my contribution, because-in sharp contrast to what happened in the other place-there seemed to be a splendid degree of consensus this evening on this subject. Indeed, until this happy consensus descended on the House, I thought at one point that I would be in the very unfamiliar position of voting with the Government against my own party. Happily, that will not be necessary.
It is worth setting out the history of the matter, partly to excuse the fact that my contribution lacks all novelty. I am here to repeat the arguments that I put before the House on the Second Reading of the Counter-Terrorism Bill on 10 June 2008 and the Second Reading of this Bill on 23 March this year. After I made my intervention on
the former, the provisions that would have made intercept evidence admissible at coroners' inquests were removed from the Bill. I do not lay claim to a causal connection between my intervention and the removal of the provisions: I merely set out the facts. I was therefore somewhat surprised when this Bill appeared and those provisions reappeared. Once again, I voiced my opposition on Second Reading, and once again-this time at Committee stage in the other place-the Government removed them from the Bill, and I was happy to see that. It is noteworthy that on that occasion they were removed from the Bill without a Division.
It therefore came as an even greater surprise that, on Report in the other place, those amendments designed to provide for the admissibility of intercept evidence were put back into the Bill, this time against the wishes of the Government but at the behest of both the principal Opposition parties in the other place. I am especially grateful to my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) for accepting the Government's view that to put those provisions in this Bill would have damaging and profound consequences for our intercept regime, which makes it unnecessary for me to take the very unfamiliar position of supporting the Government in the Lobby this evening.
It is important that the House understands that I do not take this position because I object in principle to the admissibility of intercept evidence. On the contrary, I have made it clear on numerous occasions, both in the House and outside, that I would very much like to see provision made for intercept material to be admitted in evidence, especially in cases of those accused of terrorism and other serious criminal offences. But things are not as simple as that. They are certainly not as simple as was suggested by the hon. Member for Cambridge.
The work that has been carried out by the officials in the Home Office, and which has been supervised by the Chilcot committee in its present form, has been exhaustive, and it continues. The nine tests that were set out by the original Chilcot committee were necessary if we were to protect a capability of the greatest importance in keeping the people of our country safe. It is one of the frustrating things about the argument that one cannot go very far into the details of justifying the need for those tests without getting perilously close to putting the capability at risk. I am sure that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who sits on the committee with me, would agree, although I must point out that I do not speak for the committee. It would be foolhardy to retain in the Bill the provisions that were inserted on Report in the other place. They do not meet the tests of the original Chilcot committee and, if they were to remain in the Bill, they would be a risk to this country's strategic intelligence capability that no responsible Government should take.
Sir Alan Beith: I hope that the right hon. and learned Gentleman would agree that neither of us wishes to exclude the possibility of finding a way to bring such evidence to bear in cases in which the object is to establish a cause of death. What we have at the moment does not achieve that.
I agree, and as the right hon. Gentleman will know, we have today been invited by the Home Secretary to extend the remit of the advisory committee
to look at the possibility of admitting intercept evidence in coroners' inquests. I cannot speak for the right hon. Gentleman, but I would happily agree to the remit of the committee being widened in that way.
I have listened with great care and interest to the arguments on the amendment tabled by the hon. Member for Hendon (Mr. Dismore). The Secretary of State put a reasonable question to the hon. Gentleman, which he was not entirely capable of answering, but on balance I shall support the hon. Gentleman and my hon. Friends in the Lobby, if only because it will provide another week for the Secretary of State to take the opportunity to answer the question that he posed to the hon. Gentleman and to come forward with a satisfactory regime that would deal with some of the mischiefs that were identified so eloquently by many of the contributors to this debate, not least the hon. and learned Member for Medway (Mr. Marshall-Andrews).
I thank the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) for his remarks. I wondered how he would conclude, because I understand his discomfort in abstaining or not supporting those on his Front Bench. He went in for some wonderful casuistry to move from the position that he had adopted to the position that he now supports.
I say to my hon. Friend the Member for Hendon (Mr. Dismore) and others who spoke that I am glad that there is a profound difference between the view of this House and that of the other place. The view from all parts of this House-my hon. Friend added his name to my amendment to delete the additional provisions put forward by Baroness Miller in the other place-is that everybody accepts that there have to be circumstances where intercept evidence is kept from a jury hearing an inquest, so that at least is progress.
Then we hear suggestions that there are ways round that. My hon. Friend the Member for Hendon and my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) say, "Well, we can do it through the existing measures." We have been through that. There are some cases-I assure my hon. Friend that they are indeed few and far between-where having a jury trial will result in an injustice, because there will be key evidence that cannot go before the jury as a finder of fact. With respect, where he is wrong is in suggesting that an inquiry headed by a senior judge would not be article 2 compliant. What would not be article 2 compliant in those circumstances would be the inquest jury, which would not be able to conduct a proper examination.
There is another important point that I would make to the House, as the Opposition, as well as my hon. Friends, need to apply themselves to that which they seek to vote on in a moment, although I would advise my hon. Friends not to do so. My hon. Friend the Member for Hendon proposes that we delete paragraphs 3 and 8 of schedule 1. Paragraph 3 allows for a suspension of an inquest where there is an inquiry appointed under the Inquiries Act 2005 and where a judge has been appointed to hear that inquiry. I have already made it clear that in practice-I am happy to put this on the record again, and everybody who knows the practice
knows this to be true-there could be no such appointment without the consent of the Lord Chief Justice, and his consent would be forthcoming only where he was satisfied about the circumstances and the discretion available to the learned judge. Those undertakings are absolutely clear.
I should also make it clear that if we were to pass the proposed amendments, that would not result in there being no inquiry under the Inquiries Act 2005. Rather, it would simply result in an inquest, which could not hear the evidence, running in parallel with an investigation that could hear the evidence. I suggest that that is the worst of all possible worlds- [ Interruption . ] I am being told to keep speaking. I am always happy to keep speaking. Although I appreciate his motives, I would ask my hon. Friend to appreciate what exactly he is proposing. He would end up with a muddle, where there would still be a requirement-
Mr. Deputy Speaker (Sir Alan Haselhurst): I have to inform the House that it is not possible under the terms of the programme order for the hon. Gentleman's amendment to be put to the House. That is quite clearly laid down in the programme order and is backed by the appropriate Standing Order, so we have to move on.
Mr. Grieve: On a point of order, Mr. Deputy Speaker. I have to express some amazement that this has happened. If that is indeed the case, it is contrary to my earlier understanding that it would be possible to vote on amendment (a) in lieu. Indeed, the whole reason for that, as you will have appreciated from the tenor of the House, was that we should be able to vote on that precise amendment.
Mr. Straw: Further to that point of order, Mr. Deputy Speaker. I had no intention of doing that. I think that there ought to be a vote on amendment (a) in lieu, and if it requires me to move it, I will move it.
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