Lords amendments considered.
The Bill has returned to us from the Lords markedly improved. Public attention has focused on the historic defeat of the proposed extension of pre-charge detention, but there were many other improvements, including on the use of DNA samples. The amendment would improve the Lords amendment by tweaking it to make it more practical. This is key, because it illustrates one of the big failures of Government strategy throughout the passage of the Bill. The Home Secretary evidently believes that the tougher we sound, the more effective we are in fighting terrorism. The Conservatives believe that to fight terrorism successfully, we need precise, proportionate and effective legislation. That was the intention of the Lords amendment, and it is what our amendment seeks to do as well.
Our amendment would require the Secretary of State to draft and lay before Parliament regulations governing the procedures by which people can discover what information is held about them, and in what circumstances a request can be made for any samples that may have been taken during an investigation to be destroyed. We have sought to improve the Lords amendment by ensuring that Ministers will be able to decide which agencies are affected, because we fully accept that there will be covert operations where different rules may need to apply. However, at present the underlying problem in all possible situations is that there is simply no transparency, and it is extremely difficult for completely innocent people to be able to ensure that their details are not kept indefinitely, thereby infringing their privacy but serving no purpose in terms of increasing the security of the country.
It is not just a question of getting information removed; lack of information is also a problem. The hon. Gentleman will be familiar with the case of his party colleague, the hon. Member for Hammersmith and Fulham (Mr. Hands), who has been trying to get certain details removed. He is totally innocent of any crime, and he has written letters, but not, I think, received replies. Such a lack of information is the main problem.
The right hon. Gentleman is completely right. I agree with him on this matter, and I am, of course, familiar with the case of my hon. Friend the Member for Hammersmith and Fulham (Mr. Hands). I am grateful for the right hon. Gentleman’s indication of support in this area. None of us disputes the value of DNA information in identifying not only criminals but, at least as importantly, terrorists, and it will, of course, continue to play a useful role in identification and bringing criminals or terrorists to justice.
DNA is not only a detective tool; it is a huge deterrent in itself. Because it is such an effective detective tool, it stands in the way of anybody who might be planning offences. I am in the minority, but I think that there is a great case for extending the DNA register.
My right hon. and learned Friend is correct that he is in a minority in holding that position, and I know that that will not disturb him one wit. However, there is indeed a case to be made for, and a debate to be had about, a universal, national DNA database. I would disagree with him on the issue, but the debate would be worth having.
We could include it in this debate, but you might feel, Mr. Speaker, that that pushed the boundaries of order. I should tell my right hon. and learned Friend that many of us, both in this House and outside, have been pressing for a proper debate on the use of DNA for some years now, but so far the Government have resolutely refused to have it. It is convenient for the House that we can have the debate today.
I am a little concerned about amendment (a), because it would afford a latitude to the Secretary of State that I am not sure is entirely appropriate. It would enable him to pick and choose the agencies that hold the information and include them in regulations. The Secretary of State already has the power to make the regulations, and therefore to exclude matters that might have the sensitivity to which the hon. Gentleman referred. Why does he feel that it is okay to give carte blanche to the Secretary of State simply to decide, if he wishes, that no Government agency is appropriate for such national guidelines? That would be out of kilter with the intention of another place.
The hon. Gentleman may well feel that the amendment, which seeks to improve markedly the rights of the citizen vis-à-vis the Executive, does not go far enough. I am always happy to be persuaded. It was in his power to table an amendment if he felt that mine was in some way inadequate, but he did not do so.
I suspect that the hon. Gentleman and I substantively disagree. Obviously, I believe that we need to take the terrorist threat seriously. I imagine that the amendment would mean, if we were talking about a sensible Secretary of State, that there could be exemptions in certain circumstances regarding specific agencies—obviously meaning the security services—that deal daily with potential terrorist threats. I am happy to say that the amendment is designed to ensure that there would be absolutely no weakening of our defence, or the effectiveness of our defences, against terrorism. I cannot believe that that disturbs the hon. Gentleman, but if that is what he is worried about, so be it. We will have to part company.
I am sorry to be sniping from the back, but as I understand it the amendment would not give the House an opportunity to express a view on which Government agencies should be required to provide the information. Disclosure from some agencies may well be undesirable, but we should be in a position to identify whether an agency comes into that category.
My right hon. and learned Friend is, as ever, courteous, but I do not agree with him because I believe that, as a point of principle, putting details such as the names of agencies in Bills is often a bad idea. Names can be changed, and we would have to return to the House to make further legislation, including, perhaps, in certain circumstances, emergency legislation. One thing that I have learned in the House is that, on the whole, emergency legislation is bad legislation. I am seeking via the amendment to make the legislation as flexible as possible. I share absolutely with my right hon. and learned Friend the desire to bolster the powers of the House against the Executive, but in such circumstances I think that one could rely on the Home Secretary of the day to take a reasonable view on the appropriate use of the powers that the amendment would give to him or her.
The changes are necessary because of the worrying nature of the guidelines under which we operate. They are produced for the police, and go under the spectacularly opaque title “Retention guidelines for nominal records of the police national computer”, which could almost have been designed to stop anyone finding out what the guidelines are for the use of DNA—a rather important term that the document carefully refuses to mention in its title. Frankly, the guidelines are draconian. They state:
“Chief Officers have the discretion to authorise the deletion of any specific data entry on the PNC ‘owned’ by them.”
It is interesting that when a person’s data are entered on to the PNC, they are owned by the police. The guidelines continue:
“They are also responsible for the authorisation of the destruction of DNA and fingerprints associated with that specific entry. It is suggested that this discretion should only be exercised in exceptional cases.”
According to the guidelines, the discretion to destroy the information will rarely be exercised, which in itself is enough to raise eyebrows. The guidelines later state:
“In the first instance applicants should be sent a letter informing them that the samples and associated PNC record are lawfully held and that their request for deletion/destruction is refused”.
Therefore, the standard guideline is, “Just say no, you can’t have your records deleted.” The last paragraph of this part of the guidelines states:
“It is not recommended that any proactive exercise is undertaken to determine potentially exceptional cases”.
The police are therefore being told in their guidelines first that everything must be exceptional, and secondly that their first and standard response should be to say no. Indeed, elsewhere in the guidelines—I shall not detain the House by reading this out—is the standard template letter of refusal, in case the police cannot work out how to write a refusal letter. On top of that, they are instructed not to make any effort to tell people what they can do or what criteria they might have to fulfil to get their records out of the system. That approach is not satisfactory.
Compounding that, an example is given for those who want to know what an “exceptional case” is. It is the only such example in a 236-page document of what might be an exception. I shall quote it in full:
“For example, where a dead body is found in a multi-occupancy dwelling and the cause of death is not immediately obvious. All the occupants are arrested on suspicion of murder pending the outcome of a post mortem. All arrested persons are detained at the local police station and samples taken. It later transpires that the deceased person died of natural causes. No offence therefore exists, and all persons are released from custody.”
That is the only example given in the guidelines of an allowable exception. The House will recognise that that is an absurdity and that the guidelines are clearly not an acceptable way in which to proceed.
Is not the reason the guidelines are so presumptive in favour of keeping such data that the Government mistakenly believe that they get a large advantage when it comes to solving crimes? In June, the Prime Minister made a speech in which he said that 114 murders had been made solvable and that murderers had been taken off the streets because of the breadth of the database. It would be better if we could have more information on that so that we could see the exact truth of the matter, because I believe that that was an over-estimation.
My right hon. Friend makes an important point that the Minister may wish to address. The Prime Minister appeared to be equating DNA matches with successful prosecutions, but the figures that he quoted were for DNA matches. The House will know that that does not equate to successful prosecutions or, therefore, to successful crime-fighting.
It might help the hon. Gentleman if I tell him that the question posed by the right hon. Member for Haltemprice and Howden (David Davis) came up this morning when I was giving evidence to the House of Lords Constitution Committee. I undertook to look into the matter and to write to the Committee with the relevant information. I cannot give the House that information now, but it might be helpful for hon. Members to know that, given that the right hon. Member for Haltemprice and Howden has given his apologies for having to leave early.
I am grateful to the Minister for giving us that assurance and I am sure that we would all be grateful if he included others when sending out that letter. I am glad that he has been made aware of this issue.
There are ways of improving the situation. Our amendment represents one, but I hope that the Minister will also take seriously the first annual report of the ethics group on the national DNA database—the NDNAD—which was set up by the Government. It makes a large number of recommendations on how to improve the situation, but I will concentrate on just three of them. One states:
“For those members of the public who are believed to be innocent at the time of sampling and voluntarily donate their DNA to help the police with their enquiries, the presumption should shift to an expectation that these samples will be used only for the case under investigation, that the profile will not be loaded onto the NDNAD, and that the samples and all data derived from them will be destroyed when the case has ended.”
I hope that the Government will take that on board. A further recommendation states:
“A clearer, simpler and less cumbersome process needs to be put in place to enable those who wish to appeal against the decision of a Chief Constable to retain their DNA profile on the NDNAD.”
I am sure that anyone who has gone through the guidelines will find that proposal reasonable. A third recommendation that I want to press upon Ministers is:
“Consideration should be given to further public clarification of the role of the NDNAD and reinforcement of the message that it is intended only to be used for criminal intelligence.”
I am sure that my right hon. Friend the Member for Haltemprice and Howden (David Davis) would agree with that. Ministers would do well to take on board those recommendations from the ethics group.
In addition to commending our amendment to the Government, I should also like to commend some of the principles suggested by the pressure group Liberty on how we should balance human rights principles with the necessity for an effective fight against crime and terrorism. As well as advocating the overarching principle of the proportionate retention of DNA, which I strongly support, Liberty suggests that three further principles be taken into account:
“The relevance or probative value of DNA to the type of crime in question.
The potential propensity of the trigger offender to future crime of a relevant nature.
The gravity of both trigger offence and the type of crime feared in the future.”
I hope that the Minister will be able to look at those principles, as well as seriously to consider our amendment, which would help the process of putting DNA evidence on a proper footing, and therefore help in the fight against terrorism in the long term.
I am happy to follow the hon. Member for Ashford (Damian Green). The Opposition have tabled a very sensible amendment, and I am sure that my hon. Friend the Minister will deal with it sensibly. This is a very important issue, and those in another place were right to understand the importance of retaining information and of removing it when its retention is unnecessary.
At the end of last year, the Home Affairs Select Committee published an important report entitled “A Surveillance Society?”. I see that the hon. Member for Newark (Patrick Mercer) and my hon. Friend the Member for Luton, South (Margaret Moran) are in their places today. They were co-authors of that report. In it, we spoke firmly in favour of data minimisation. Of course Governments have to have such information, and our security services have to retain it. The police need it, too, in order to catch criminals. The problem is that such data are retained on innocent people. At the moment, the profiles of 4.4 million people are on the DNA database, according to information that I have been given. About 1 million of those profiles relate to children, some of them very young children. Of course, the consent of a parent is required to take and retain such data, but the fact is that that number of profiles is being retained at the moment. There must therefore be an efficient, transparent and easy-to-follow way for innocent people to apply to have their DNA record removed from the database. If they are not part of any criminal proceedings and have done nothing wrong, it is wrong in principle that that information should be retained.
Will the right hon. Gentleman address a further point? I accept, of course, that a person who is innocent at the moment will feel affronted by the fact that their DNA is on the national database. However, that person might subsequently go on to commit a serious offence. I have come across such cases through my own professional experience. Why should we wish to deny the prosecuting authorities such an important detective tool?
I am reluctant to enter into a discussion of this nature with the right hon. and learned Gentleman, because he knows so much more about the criminal justice system than I do. I am sure that he has come across many examples involving this requirement. However, this is the same argument that Home Office Ministers have put forward whenever this point has been raised at Question Time. Either we retain these data for the whole country or we cover only those who are charged with offences. I am against covering the whole country—I hope that the right hon. and learned Gentleman would be against it, too—because it would be an unnecessary burden on the citizen and because of the many cases of the loss of data that have occurred in the past 10 years. If we have a database that contains information on 60 million people, at some stage, bits of it, or perhaps the whole lot, could get lost—through no fault of Ministers, of course. Such a system would encourage loss simply because of the amount of data being held.
That is why I am against such a proposal. It represents a dangerous argument. There is, however, a high number of profiles of ethnic minority people—Afro-Caribbean people in particular—on the database. Some judges have suggested that, because it is unfair that so many young black people are on it, it might as well cover everyone, as a way of being more fair. I do not think that that is the right approach. We should not retain more information because we need to justify an argument.
One of my constituents came to see me recently. He had been out with his friends one evening, and they had gone to a pub. There was a fight outside the pub, and a young girl was being harassed by a man. My constituent intervened to prevent the fight from developing further. The police were called, and everyone was arrested. Everyone’s DNA sample was taken. The police subsequently released my constituent, saying, “Thank goodness he intervened. He prevented the violence against the woman from being exacerbated.” He wrote to the police asking for his DNA sample to be removed from the database, but the reply that he received was, frankly, pathetic. The sample remains on the database.
The shadow Home Secretary, the hon. and learned Member for Beaconsfield (Mr. Grieve), is known as a have-a-go hero. I can well imagine him removing his shirt and jacket to reveal a big “S” or a big “D” on his vest, and intervening to stop a crime being committed. The police would arrive at the crime scene and take everyone’s DNA. It would be put on the database. How would the hon. and learned Gentleman, clearly an active citizen and an innocent person, apply to have his data removed?
This is a crucial issue, and it is not enough for the Government to advance the arguments that they have advanced in the past—namely, that we have to retain this information because people will, at some stage in their life, commit an offence.
One of the things that has struck me forcefully, as a constituency Member of Parliament, is the apparently arbitrary nature of the decision on whether or not to accede to a request to remove DNA from the database. On the occasions on which I have made representations on behalf of innocent constituents who have had their DNA taken, it appeared that the only possible rationale behind the decision making was whether the matter was likely to cause embarrassment to the police because of the surrounding circumstances. I do not think that that is an adequate basis for making such a decision, and this reinforces the right hon. Gentleman’s point that we need a proper system.
I do not disagree with anything that the hon. and learned Gentleman says. We do need a proper system, and the present system is totally inadequate. At the very least, if we had letters in reply to reasonable requests, providing information to the person who has asked for his or her profile to be removed, I could understand it. As it is, this is the first time that I have heard the guidelines as they were read out by the hon. Member for Ashford. I did not realise that although everyone is told that they have the right to have their DNA removed, it is only in very, very exceptional circumstances that it will be so removed. I am minded to vote for the Opposition’s amendment, unless the Minister gives a clear sign to the House that the Government will radically alter the current guidelines on removal.
While I will not follow my right hon. Friend into the Lobby on this issue, does he agree that it is important that we have consistency as well as transparency? There is a porous border between Hertfordshire and Bedfordshire and crimes are sometimes committed in the former by my constituents, and their DNA is taken there. I have received conflicting advice from those two police authorities about removal, and it is not acceptable that my constituents should be subject to variable responses on removal depending on the interpretation of the guidelines by chief constables.
I note the encouragement from the Opposition Whip. However, the Minister may say something wonderful that reassures me. He may say that he will write tomorrow to every chief constable to say that people should always get a response to their requests for removal and that the guidelines will be changed.
This is an important issue. Hon. Members may have seen the film “Minority Report”, in which so much information is gathered by computer—including DNA profiles—that police officers and SWAT teams arrive just before a crime is committed. They lock the person up even before the crime is committed. Goodness knows how that would affect the shadow Home Secretary if he went around the country trying to protect us from crime.
This is a very serious subject, but as soon as I say that the Minister starts talking to a colleague on the Front Bench. It is an important issue—it will not be good enough for the Minister simply to say that we need this information because people might commit crimes in the future. Nor will it be good enough to say that people can apply to the authorities, because such requests are not answered. The hon. Member for Hammersmith and Fulham (Mr. Hands) is not in his place and I had not intended to raise his case today, but he has been trying to get this information removed for months. Even I have written to the Home Secretary and asked what is happening in that case, but she has not replied. That silence is unacceptable, and we need some clear guidance or assurances. If the Minister cannot supply that, I will vote against the Government on this amendment.
The Liberal Democrats welcome many of the concessions that the Government have made since we last debated this Bill. It is a shame that they could not have made those concessions earlier and prevented the ugly scenes and arm-twisting we saw when the 42-days provision was passed in this Chamber by the narrowest of margins.
On Second Reading, I said that we would fight tooth and nail against illiberal provisions on 42-days’ detention without charge and on abandoning juries in coroners’ courts. I am glad that, with the help of the official Opposition in the Lords, we have been able to see off those proposals and that the amendments passed in the other place on them will be supported on both sides of this House.
On the specific amendment tabled by the hon. Member for Ashford (Damian Green), the Lords amendment calls for national guidelines, and that would allow the Secretary of State to vary the guidelines for different agencies, should he or she see fit.
I am glad and, given what I said earlier, relieved that my hon. Friend is taking that position. The only argument for supporting amendment (a) would be if the Government were to make it clear that they would drop their motion to disagree if that amendment were to be passed. If not, all that amendment (a) would do is water down the amendments made in the other place, which I wholeheartedly support.
In fact, the guidelines make it clear that if the case is still under investigation, that objection will apply, but if the case is no longer under investigation—if the DNA has been found at the scene of the crime but the crime has been cleared up—the DNA will be taken off the database. The hon. Gentleman’s objection is not a real one.
Prompted by my hon. Friend the Member for Somerton and Frome (Mr. Heath), I reiterate to the Minister that if he were minded to accept the Lords amendment and the Conservative amendment, we would be happy to support that.
It is completely misconceived to argue that we need the qualification proposed by the Conservatives to deal with a category of people. Categories of people can be dealt with in the regulations as they cover the range of agencies, so the proper concern of the hon. Member for Ashford (Damian Green) can be better addressed by retaining the Lords amendment as it is, rather than by modifying it in the way he suggests.
My hon. Friend makes a good point, and it is similar to the point that I started by making—that the Secretary of State is not required to lay down the same guidelines for all Government agencies, but can vary them. At the least, amendment (a) is otiose, but if Ministers were minded to accept it, I would be happy to support it.
The Lords amendment is sensible and moderate, and it helps to clarify the real problem, which is that the Government do not have a policy on acquiring DNA samples for the database. In reality, a sort of clattering train picks up bits and bobs here and there in a completely random manner.
If I were one of the nearly 1 million innocent people on the DNA database, I would rightly want to get my sample off it. I do not think that the Government should be going on fishing expeditions to bang on bits of extraneous information about citizens merely for the sake of it. Frankly, I would be more inclined to support the Government if they were to target the 2 million convicted criminals who were convicted before the database began and who do not have their DNA samples on the database. If the database was genuinely a database of people who had been convicted of a crime, that would seem to me to be a perfectly fair principle on which to proceed. However, we have 1 million innocent people on the database and 2 million who ought to be on the database but who are not because their convictions happened before 2001.
We have not heard any evidence from the Government that the increase in the numbers of people acquired randomly whose samples are on the national database has led to an increase in the number of successful convictions. We have heard a number of wild assertions and I was pleased to hear the Minister say that he would try to come up with information to test them, but despite the huge increase in the size of the database, the number of successful convictions using DNA has hardly altered. We are putting all the extra samples in, which happens at some cost to the ease with which the database can be manipulated and increases the chances of making an error, which could be extremely serious for any individual concerned, yet we are getting no serious increase in the number of successful convictions using DNA.
I believe that the Lords amendment is a first step towards putting our use of the DNA database on to a sensible footing. I hope that the House will support it and I will listen to the Minister’s response to see whether we should support the amendments tabled by the hon. Member for Ashford. If the Minister is minded to accept the Lords amendment with those amendments, we will do so, too.
I am rather torn both on the amendment and on the Lords amendment. I hope the House will accept that I approach most criminal justice matters from within the libertarian wing, so I am conscious that some of the views that I will express are not those that I would normally express in this context. I suspect that they are not shared by those on my party’s Front Bench or by most of my hon. Friends. So far as the amendment moved by my hon. Friend the Member for Ashford (Damian Green) is concerned, I am bound to say that my preference is for the Lords amendment.
It seems to me that the disadvantage of the amendment tabled by my hon. Friend is that it would enable the Government to choose which agencies will be the subject of the procedures envisaged in the Lords amendment. My hon. Friend has a perfectly decent reason to be worried, as his coda to agencies is based on the question of whether possible terrorist suspects will get information that they should not have.
Such a fear is perfectly realistic, but it seems to me that at least two responses can properly be made. First, we could so construct the secondary legislation as to enable the Government to defuse that risk by the contents of the regulations, on which we could take a view. It seems that that would protect the interests about which my hon. Friend is concerned. Secondly, I am very cautious about giving discretionary power to a Secretary of State because, at the end of the day, we need to cling to the principle that once power is given to any official or to the Executive, it is certain to be abused on occasion. Therefore I do not feel comfortable with my hon. Friend’s amendment and am not minded to vote for it if he presses it to a Division.
That takes us to the Lords amendment. Again, I confess to being torn. There are advantages and disadvantages. Perhaps I could identify them and then suggest the proper view. The advantage of the Lords amendment is that it brings consistency—or is capable of bringing consistency—by the publication of the procedures. I think that it is undesirable that varying police forces should have different approaches to the issue of removal and disclosure. I see great merit in it being said that police forces across the country should operate according to a common code. That is the advantage. It is a considerable advantage and I do not want to pretend otherwise.
The disadvantage is that the amendment is a marked move away from the proposition that we should have an ever-expanding database, perhaps moving to a national database. I want to say a word about that, if I might, before I come to a conclusion. I recognise that there are serious disadvantages and arguments to be deployed against a national database, particularly a DNA one.
The advantage of a national database, leaving aside all other issues, is huge. It is not only the most effective single detective weapon currently available to the enforcement agencies but is a huge deterrent in itself. I did a case two or three years ago involving a very bad rape, and the rapist was discovered only because 10 years after the event the police were going through old samples that they then could not profile and now could and they happened to discover the rapist on the database.
If one projects such an idea forward, one appreciates that many potential criminals, such as rapists, will be conscious that they leave DNA samples on the site. That is a huge deterrent. It is not only a detective instrument but a deterrent, especially as the forensic scientists become more skilled in gathering DNA. Low-copy profile DNA, for example, can operate on very small samples, so such profiling is a huge deterrent as well as a detective instrument. I suspect that it is the single most effective measure that we can adopt to decrease crime.
On the other hand, I acknowledge that there are serious civil liberty issues to debate, although I am not persuaded by them. There is no question but that we need to debate them. There are huge costs involved and I have no doubt that there are huge practical difficulties to resolve. I have not come to an absolute conclusion, but we should not shut the door on the debate. The question of whether we should move gradually towards a national database is very important.
The last thing that we are seeking to do is to shut off the debate. Indeed, as my right hon. and learned Friend will appreciate, the purpose of these amendments is to enable a further debate to take place, which is the very thing that we have not been getting. I take his point; there are arguments. Indeed, Lord Justice Scott put forward some persuasive arguments about why there should be a national database that included even people who came into this country as visitors and who should be obliged to provide their DNA at the airport at the point of entry. Such arguments can be made, but there is something extremely unhappy about a situation in which innocent people go on to the database at random and feel a justifiable sense of grievance as a result.
I am not disagreeing with my hon. and learned Friend. The conclusion to which I am going to come is that we can support the Lords amendment. My point at this stage is that the House and the country as a whole should have a serious debate about the desirability and practicality of a national database. I do not pretend that I have come to a wholly concluded view, because I think that the civil rights arguments might be more powerful than I currently deem them to be. I also question whether we can wholly exclude the risk of wrongful convictions based on DNA and I ask what safeguards should be incorporated. There are very important issues to be reflected on, but we should debate seriously the use of the database and I am very uncomfortable with anything that impliedly stands against it.
Is the right hon. and learned Gentleman aware that the very substantial increase in the number of samples on the DNA database has not led to an increase in the number of successful convictions? That tends to weigh quite heavily against some of the points that he was making in favour of a potentially nationwide database.
I think that one needs to look at the statistical arguments a little more closely, as that is surprising and one would expect the number of convictions to rise. The figures do not address the issue of deterrence, although they do question the database’s effectiveness as a detective tool. However, we need to know more about the statistical base before we draw too many conclusions from the hon. Gentleman’s observation.
As for Lords amendment No. 2, I accept that my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) is right to say that it would enable a debate to be had, because an ability to lay regulations does trigger debates. Moreover, as I said earlier, it also has the great advantage in that it would bring consistency.
My conclusion, therefore, is that we should not accept the amendment moved by my hon. Friend the Member for Ashford (Damian Green), unless he persuades me that I am wrong in my interpretation. I believe that we should accept Lords amendment No. 2 because it would provide consistency and trigger a debate. At some due time, and in an appropriate way, this House really must return to the question of whether we should have a proper national database of DNA samples.
That is good, as we will be at no mutual disadvantage. I therefore redirect my apology to the hon. Member for Ashford (Damian Green).
I want to make two points in addition to those made by my hon. Friend the Member for Eastleigh (Chris Huhne) and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). The first has to do with the disadvantage of the present system and picks up a point made by the hon. Member for Luton, South (Margaret Moran). At the moment, the police are often hugely discredited in the eyes of law-abiding members of the public by the arbitrary way in which samples are collected and the uncertainty of what then happens to them. I shall give an example that comes from the sort of constituency experience shared by many hon. Members.
I have in my constituency a family—professional parents, teenage daughters—who are entirely well respected. The incident that I am about to relate took place within the Metropolitan police area but outside our borough. The daughters were stopped when in a car being driven by someone else, and samples were taken. It appears that the driver had either a previous charge or conviction, but the teenage girls had no previous criminal record.
It took about a year to get a decision from Lewisham’s borough commander—I was eventually told that it would be his decision—that the girls’ samples would be removed from the DNA database, which would not show their involvement in the incident. There was huge uncertainty in that period, and no courteous, timely, prompt or helpful series of responses.
The girls involved happened to be black, and they have one black and one white parent. It is difficult enough for black teenagers in London to have confidence in the police, and this experience did not help those young women or their parents in that regard, suggesting as it did that the police were more interested in collecting data than in seeing justice done by those absolutely innocent young women.
First, the present system allows data to be collected and retained in respect of people who are never charged, let alone convicted. In my book, that is wrong in principle. Secondly, the system is arbitrary in its operation and subject to no guidelines, and that is really unhelpful on the street. The Minister knows that, as he is a man of the people: he was out with me and others on the anti-knives march; he understands how real people think and talk and his constituency is very like my own. He knows that I am talking about ordinary, law-abiding people in real circumstances, not academics with doctorates—
There are lovely people with doctorates and, as one would expect, many are the constituents of my hon. Friend the Member for Cambridge (David Howarth), but we are not talking about them.
My second point follows on from what the right hon. and learned Member for Sleaford and North Hykeham said. I also understand that there is a debate to be had about the relative merit of holding samples as against not holding them. However, it seems to me that proceeding in a logical direction means we should heed the advice and the recommendation given by my hon. Friend the Member for Eastleigh—that is, that we should first seek to hold samples and data on the people who have a criminal record. That must be the first step, as all the evidence in criminology and criminal justice is that people who have previously offended have a propensity to offend again. The majority of citizens are innocent and non-offenders, while the minority—sadly—are either occasional or recurrent offenders.
It is not logical to move to a presumption that a general holding of data is now the right step to take. In that respect, the Government’s view is as flawed as their approach to ID cards. There is an argument that everyone in the country should have an ID card and be required to produce it whenever they are stopped. Many other European countries have that system, but there is absolutely no argument for a system that would require people to have an ID card but not to carry it with them. That is the Government’s current position, and it is entirely illogical.
I anticipate that there will be a Division on these amendments. I hope that the right hon. and learned Member for Sleaford and North Hykeham will come down on the side of Lords amendment No.2, but unamended by his Front-Bench colleagues. That is the best option available, as it proposes that, at least for the time being, we should have a system whose structure means that people in Bedfordshire or Hertfordshire, Lewisham or Southwark could expect the same set of procedures. Those procedures would determine who collected the data and when, what was held, how the information could be requested, how people would be responded to and what the criteria were for any decision.
My vote will be that data should not be retained on samples taken from people who are not charged or who are innocent. That must be the right starting point, and I hope that colleagues will vote for the Lords amendment on that basis.
When Baroness Hanham moved the Lords amendment in the other place she said that her aim was
“to try to spark a national debate about the retention of samples and to inform the public about what information is being held on them.”—[Official Report, House of Lords, 4 November 2008; Vol. 705, c. 132.]
If this debate is anything to go by, she has certainly succeeded in her aim—if only by virtue of the contribution from my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg).
There is considerable disquiet throughout the country, and certainly throughout the House, about the extent of the database. We have heard already that the details of some 4.5 million individuals are currently kept on the database, which is growing at the rate of more than 500,000 entries a year. In a parliamentary answer only last month, we heard that some 857,000 individuals with no current convictions also have their data stored on the computer.
Clearly, no one has any quibbles about the existence of the database, which has proved itself to be an exemplary tool in fighting crime. However, there is disquiet about its extent and, especially for the purposes of this debate, about its opacity when people seek access to the information that it contains and apply to have information removed.
As my hon. Friend the Member for Ashford (Damian Green) said, the only guidance appears to be that contained in the Association of Chief Police Officers “Retention guidelines for nominal records on the Police National Computer”. As he also said, it is a masterwork of opacity: it appears to be designed to defeat the efforts of the very best Googler, and I certainly had huge difficulty finding it on the internet earlier this week.
We have heard that the guidelines are clear to the extent that they positively advise obfuscation. They say that the first response, which is to be automatic, to a request for destruction is to refuse it without further consideration. However, we are told that if the applicant persists, the chief constable for the relevant force is to make the decision, yet the guidelines make it abundantly clear that the discretion vested in the chief constable is to be exercised only rarely. We are told that there is a library of precedents to which chief constables can have access when deciding the basis on which to make their decision, but that library—as far as I know—is not available to the public.
Like the right hon. Member for Leicester, East (Keith Vaz), I have constituency experience of trying to remove a constituent’s details from the database. The incident involved a retired senior police officer who had been charged with a serious offence of misconduct in public office. The investigation and the period before trial took eight months; needless to say, it was a period of extreme anxiety for my constituent and his family. Ultimately the case came before Chester Crown court, where it collapsed in circumstances that can be described only as complete disarray on the part of the prosecution. Subsequently, my constituent, who had suffered extreme trauma as a result of the experience, tried to have his name removed from the database. We are talking about digitised details of the very essence of an individual—in this case, a completely innocent individual who had been exonerated by the Crown court yet who nevertheless found that his data were on the national database in the company of the biometric data of convicted rapists, terrorists and murderers. Understandably, he wanted his details removed.
In response to my request, I received a letter from the chief constable of North Wales police. The letter broadly followed the template that my hon. Friend the Member for Ashford mentioned—template A in appendix 2 to the ACPO guidelines. It followed the guidelines almost word for word, except that at one particular juncture the chief constable decided to ski off-piste. He said:
“The Criminal Justice and Police Act 2001 amended the Police and Criminal Evidence Act 1984, providing the police in England and Wales with the power to retain DNA samples and fingerprints, relating to persons following acquittal at court or other discontinuance of a case.
I must admit to being personally surprised by this decision and I am not sure parliament fully understood the implications of its decision. However, the Act is clear enough and I am bound to act by its provisions.”
In other words, it would appear that the chief constable of North Wales police decided to enter the debate about the retention of DNA ahead of the House. He clearly thinks that the current legislation is nonsense. His letter continued:
“If I were to exercise my discretion in this case, then I would have to exercise my discretion in similar cases, thus it would not be a rarity.”
There is, therefore, almost no circumstance in which a chief constable will exercise that discretion, which is a lamentable state of affairs. Clearly, the present arrangements are opaque and unsatisfactory.
I entirely understand the point my hon. Friend is making. The lack of opacity is a powerful argument, as is the lack of consistency and perhaps the lack of a statutory basis for the arrangements. Bearing in mind the fact that all criminals were once people of good character—to use the technical phrase—is it a matter of principle to him that the DNA of an innocent person should not be on a database? If so, what is that principle?
Personally, I feel that as a matter of principle the DNA of an innocent individual should not be kept on the database. My view is that the database is a tool to be used in the fight against crime and there should not be a presumption that information about innocent individuals should be on such a database. There is of course a strong argument for putting every individual in the country on the DNA database. That is part of the debate. I happen to take the contrary view; however, in this debate we are concerned about consistency and transparency, and as we have inconsistency and opacity at present, I strongly support the amendment. It would put in statutory form provisions for guidelines that Government agencies could access and which gave consistency of approach to those who may be aggrieved by the presence of their DNA on the national database.
At present, however, the issue of whether DNA records should be removed from the database may depend in some cases on nothing more than the state of digestion of the relevant chief constable. That cannot be a healthy state of affairs, so I strongly support the amendment.
I thank all Members who have contributed to this important debate about the DNA database, DNA more generally and what is right or wrong in how things are done at present. As some Members said, whatever the rights or wrongs of the amendments, they have generated debate and a discussion of the rights and wrongs of the policy, not only in this House but in the other place. I shall try to cover the various points made by my right hon. Friend the Member for Leicester, East (Keith Vaz) and other Members, but no doubt if I miss anybody out they will intervene.
I beg to move that the House disagrees with the Lords in their amendment No. 2, which would, as we know, add a new clause 14.
In that case, I shall turn to the amendments proposed by the hon. Member for Ashford (Damian Green). We recognise the concerns about the existing retention policy. The hon. Gentleman has tried to show that new clause 14 would actually include the security services. I realise that is a point of dispute, but the guidelines, as proposed, would apply to samples taken by Government agencies, and would thus include samples acquired during terrorist investigations.
Does the Minister accept that if, for example, the guidelines made it clear that in an ongoing investigation it was perfectly legitimate for Government agencies to hold DNA found and identified at the scene of a crime—terrorist or otherwise—it would meet his objection?
I think the hon. Gentleman is now trying to qualify the problems with the new clause. In this instance, I agree with the point made by the hon. Member for Ashford. The hon. Member for Eastleigh (Chris Huhne) can ask why we do not do this or that, but in effect if we agreed to new clause 14 we would in primary legislation be allowing circumstances in which DNA samples from terrorists could be used, and in that sense we could damage the capacity and capability of the security services.
My understanding of subsection (1)(c) of the proposed new clause is that it would enable the Secretary of State to establish circumstances in which the request was refused. One would have thought that the regulations provided sufficient latitude, under that specific provision, to enable sensitive information to be withheld.
All I can say is that there is doubt in the mind of the security services and those who have responsibility for these matters. Indeed, the right hon. and learned Gentleman’s party’s Front-Bench spokesmen and many of his colleagues accept the concerns that have been expressed about the fact that primary legislation would be put on the statute book containing provisions that theoretically and practically compromise the security services’ ability to act.
May I say to the Minister, respectfully, that he has been badly briefed? That cannot be the interpretation—to be blunt, that is a completely extended interpretation. The new clause that has come from the Lords states:
“The Secretary of State shall by regulations publish national guidelines for governmental agencies”.
That allows thereafter the definition of the governmental agencies to be covered by the guidelines. That is the first point. The second point is the one picked up by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg)—that proposed new subsection (1)(c) allows the possibility of qualifying that. For two reasons, therefore, what the Minister fears would not happen and need not happen. He really should not try to persuade us otherwise, based on a very poor briefing and a poor argument.
I do not regard the briefing that I received as very poor. No doubt the hon. Member for Ashford received the same—extremely worrying—briefing as I did, and that is why we have reacted as we have.
Responding to the broader debate, we recognise that there are concerns about the present retention policy, but there is strong and convincing evidence to support the current approach. I shall come to that shortly, but first I remind the House that statute in this area under the Police and Criminal Evidence Act 1984 has been considered by Parliament twice within the past seven years. First, the Criminal Justice and Police Act 2001 amended PACE to allow DNA and fingerprints taken from those charged to be retained indefinitely. The amendments arose from decisions in the Court of Appeal relating to two cases in which compelling DNA evidence linked one suspect to a murder and another to a rape, but could not be used, and neither man could be convicted. That happened because at the time the matches were made, either the defendant had been acquitted or a decision had been made not to proceed on the offences for which DNA profiles had been taken. Secondly, the Criminal Justice Act 2003 amended PACE to allow the police to take DNA and fingerprints without consent from anyone arrested for a recordable offence and detained in a police station.
The provisions of the Criminal Justice and Police Act gained Royal Assent on 11 May 2001. According to the most recent figures that we have, between that date and 31 December 2005 there were approximately 200,000 DNA profiles on the national DNA database that would previously—before the 2001 legislation was enacted—have had to be removed because the person had been acquitted or the charges had been dropped. Of those 200,000 profiles, approximately 8,500 profiles from some 6,290 individuals have been linked with crime scene profiles involving nearly 14,000 offences, including 114 murders, 55 attempted murders, 116 rapes, 68 sexual offences, 119 aggravated burglaries and 127 offences of the supply of controlled drugs.
I take the point that a number of Members, including the right hon. Member for Haltemprice and Howden (David Davis) and, I think, the hon. Member for Eastleigh have made. As I told the House of Lords Committee this morning, I will investigate further and share the information I find with the House. However, I agree strongly with the point made by the right hon. and learned Member for Sleaford and North Hykeham: it is important to consider the deterrent effect, as well as the links that are sometimes made with other crime scenes. Where I do not agree with him is on a national DNA database. We have tried to move forward in a proportionate and necessary way, without moving down the route of having a national DNA database.
The successful detection and conviction of offenders, combined with the absence of interference in the daily life of people on the database who do not commit crime, are compelling reasons to retain the existing approach. As the debate has highlighted, there is concern in some quarters about whether it is proportionate to retain the DNA of people not subject to charge or conviction. However, I think we should focus on the crimes that have been solved thanks to that DNA database. I am sure that the House agrees that that is compelling evidence, drawn from real events.
I am sorry, but I do not think that the Minister is answering the points made in the debate. He is certainly not answering our case, outlined by my hon. Friend the Member for Luton, South (Margaret Moran), that different chief constables decide to interpret requests differently. The position is shambolic; it must be tidied up.
I will get to that point later. I was stating our belief that, in general, the policy is effective because it leads to crimes being solved that would not otherwise be solved. I would not do my right hon. Friend the discourtesy of not answering the specific points he made.
The position on the current statutory provisions was upheld quite strongly by the House of Lords in 2005, in the case of S and Marper v. R. However, the House will know that the matter is currently before the European Court of Human Rights. We have defended our decision, but we await the decision of that Court, which we understand may come before the end of the year.
The text of the amendment would require the Secretary of State to issue guidance relevant to all agencies holding DNA and fingerprint samples on the operation of their retention, use and destruction of fingerprints and samples. Let me say why the guidelines contained in the amendment are unnecessary. The rights of individuals from whom fingerprints and samples are taken by the police under PACE or under the Terrorism Act 2000 are already contained in guidance, including PACE codes C and D, the ACPO retention guidelines for nominal records on the police national computer, and guidance on subject access requests. However, let me say to my right hon. Friend and other hon. Members that I admit there is work to be done to publicise those rights more widely.
I undertake to work with the police to bring together the current guidelines covering the matters raised in the amendment, and to publish them more widely. The guidelines will need to be reviewed in the light of the outcome of the S and Marper case, and a PACE review is currently under way. However, I give my right hon. Friend an undertaking to ensure that the points that he and others have made are fed into the PACE guidelines review, so that we can improve the process.
I am grateful to the Minister for those comments. Will he also ensure that if that work is carried out as he says it will be, some regard will be had to the Scottish system? It is worth pointing out that the system we are discussing is not ubiquitous to the entirety of the United Kingdom, and that the Scottish legal system succeeds in running a process whereby the DNA of innocent people is removed from the DNA database after—I believe—two years.
I know that a different approach is taken in Scotland, and that is a matter for the Scottish Executive.
In an attempt to reassure my right hon. Friend the Member for Leicester, East, I repeat that we are trying to increase understanding and awareness of police powers and the rights of individuals. We know that work needs to be done on improving the notice of rights and entitlements provided to every person arrested and detained at a police station. As part of the PACE review, I will consider some of the points he made with a view to ensuring greater consistency across the country and less of the variation that he described. I shall also try to do something about some of the problems of unfairness that he highlighted. I hope that that goes some way toward meeting his concerns.
It certainly goes some way to meeting the objections that I raised. However, the point remains: if the only exception is to be that mentioned by the hon. Member for Ashford (Damian Green), I am not sure what rights the Minister is proposing to publicise. There are no rights in these circumstances. If the exception remains as it is, there is no point in a person writing in to exercise the rights that have been publicised. Is my hon. Friend giving me an assurance that the exception will be extended?
What I am saying to my right hon. Friend is that although I cannot predict the outcome of the review of the guidelines, I will ensure that we look into the points that he makes and the concerns that he raises, including his worry about variability and the problems that people have in getting their DNA deleted from the database once it is on it. Certainly, we will try to see whether more can be done about that. As he says, it is no good just publicising existing guidelines if there is no change to the situation. All that I can say to him is that I will look into the matter. I cannot predetermine the outcome, but his points are well made, and I will certainly consider them while the review is going on.
I thank my hon. Friend for the approach that he is taking on the issue. Will he ensure that when guidance is issued after the PACE review, the Home Affairs Committee will be able to take an overview of it? As points have been made about confidence, including public confidence, it is important that Members of this House are confident that there will be transparency and consistency. Will he indicate how monitoring will take place, so that incidents such as those to which I referred, in which different approaches were taken by different constabularies, can be reported and addressed, if there are failures?
My hon. Friend makes some important points, but I cannot tell her what will happen as a result of the review, or make commitments that I am just not in a position to make. I can try to reassure her and my right hon. Friend the Member for Leicester, East by saying that I have heard what they have said about how the DNA database currently operates. I will look into the issues to do with the deletion of samples that are on the database. I will see that the concerns that have been raised are incorporated into the review. I will bear in mind not only what my right hon. Friend said about the need for change, but the points that my hon. Friend the Member for Luton, South made about the need for monitoring. I hope that that provides some reassurance.
If I may, I shall make some progress.
There is a further consideration that led us to the conclusion that we reached, aside from the position regarding the policy on the retention and use of fingerprints and samples. Lords amendment No. 2, inserted in the other place, would have serious adverse consequences for the retention and use of fingerprints and samples. Only samples held by the Security Service and Secret Intelligence Service would be covered, because the amendment refers to “governmental agencies”. However, it does not cover the police, who are responsible for the retention of PACE samples.
Samples acquired covertly by the police or the security services and held on the counter-terrorism DNA database would be subject to the guidelines, so investigations could be compromised when people found out that they were under investigation through such requests. Amendments (a) and (b) to Lords amendment No. 2 seek to remedy that problem. I understand what the hon. Member for Ashford is trying to achieve with the amendments, but they do not achieve their aim. The amendments permit the Secretary of State to use discretion when deciding on the agencies to which the guidance proposed in Lords amendment No. 2 should apply. The discretion could be used to ensure that the guidance did not apply to the security agencies; the risk of terrorist investigations being compromised would therefore be mitigated. However, the amendments do not necessarily achieve that aim. Lords amendment No. 2 refers to “governmental agencies”, which do not include the police, who hold the vast majority of fingerprints and samples. The amendment would actually exclude the police. I ask the House to reject the amendments.
I shall start by taking on the Minister’s last point, which, frankly, I found bizarre. Unlike the Liberal Democrats, he and I agree that we should not, in any circumstances, compromise any covert activities that it is necessary for the security services to undertake. The distinction that the Minister drew between them and the police is precisely the distinction that I seek to draw in amendment (a). I do not think that the police should carry on in the way that they are enjoined to carry on by the current guidelines. I can see a case for secrecy for the covert agencies, but I can see no such case for the police. At least he recognises that distinction.
I hope that the Minister will also recognise that there was simply no support for the current system from any part of the House. Compelling contributions were made by the hon. Member for Luton, South (Margaret Moran), the right hon. Member for Leicester, East (Keith Vaz) and my hon. Friend the Member for Clwyd, West (Mr. Jones). There are practical examples from all over the country that show that the system is unacceptable and does not contribute to proper crime-fighting, let alone the fight against terrorism. Confidence in the system is reduced because of its arbitrary nature and inconsistency across the country. Too often, people simply do not understand the system because it is not transparent enough.
I should like to address one or two of the points made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). He objects to the way in which the Home Secretary will be given the power to decide which agencies should be excluded. I simply point out to him that that the Home Secretary’s decision will be public, so the House would have the chance to comment on, criticise and debate it. He asked on what principle we objected to the national DNA database, to which he is attracted. The principle is that the privacy of an individual should not be compulsorily intruded on by the state, except in the most extreme circumstances. It is the job of this House to try to protect people’s privacy as much as possible, consonant with the proper running of society. A national DNA database, on which the private details of tens of millions of entirely innocent people would be put, offends that principle. In an era when the state does not appear to be able to keep private information safe, that principle is all the more important to us. I hope that he will reflect on that.
My right hon. and learned Friend made the point that every criminal was once of good character; I simply point out that the vast majority of people of good character remain of good character, and do not become criminals. They are entitled to believe that their privacy is valuable and that this House should seek to protect it.
May I push the hon. Gentleman on that? On a point consistent with that position, which I entirely support, does he agree that any guidelines should presume that police officers will remove samples in cases in which the person is innocent? That should be the presumption, rather than there being open discussion about it.
Yes, I agree with that. Innocent people should expect to be treated differently from those who have been convicted of an offence. I agree with the hon. Member for Eastleigh (Chris Huhne) that it is particularly absurd that we are collecting DNA from innocent people, but not from people who have been convicted of serious offences. That is one of the many absurdities of the current system.
In conclusion, I am grateful that, in all parts of the House, there is clear support for the principles behind amendment (a), whatever detailed objections people may have. I think that the Minister will realise, from the extent and force of the arguments expressed in this debate, that there is simply no support anywhere for the current situation. I therefore commend our amendment (a) to the House.
Question put, That the amendment be made:—
Question put, That this House disagrees with the Lords in the said amendment:—
Lords amendment disagreed to.
Before we come to the next group of amendments, I should offer a word of clarification to the House. A revised version of the white amendment paper has been issued, which affects this second group of amendments and the fourth group. The Government are moving to disagree to Lords amendment No. 133 and to agree to Lords amendment No. 113. The revised version should be available in the Vote Office for hon. Members if they have not already acquired it.
After Clause 80
Lords amendment: No. 106.
As hon. Members will be aware, we share a common desire to resolve the issue of ensuring that an inquest can be held that is article 2 compliant and enables bereaved relatives and other interested parties to be involved to the extent that is necessary to safeguard their legitimate interests and to allow proper understanding of the circumstances of the death of the individual, while ensuring that sensitive material is properly protected. The issue of sensitive material arises in a very small number of inquests, but we need to ensure that the finder of fact can consider all the relevant material while ensuring that sensitive material, and the way in which that material was obtained, is protected from public disclosure. This is because disclosure could damage national security or ongoing police investigations.
In order to address this problem in relation to inquests, the Government’s proposals, which we intend to bring forward in coroners legislation in the next Session, would permit the Secretary of State to issue a certificate requiring an inquest to be held without a jury if in the opinion of the Secretary of State the inquest will involve the consideration of material that should not be made public in the public interest, including to a jury or interested persons.
Not necessarily. As the right hon. and learned Gentleman knows, where we go on intercept evidence is subject to considerable debate.
As a result of certification, the finder of fact would be a coroner rather than a jury, as already occurs in 98 per cent. of inquests.
The Bill states, at the top of page 54:
“The Secretary of State may certify in relation to an inquest”
and so on. Does he carry on the certification process privately, or is it susceptible to counter-argument, and is his decision to certify justiciable? [Interruption.] Can I take him to court if I disagree with his decision?
I certainly will.
The coroner, who would continue to be a fully independent judicial office holder, would be security cleared to receive all relevant material. Only those parts of the inquest involving the consideration of material that should not be disclosed publicly would be held in private in the absence of the next of kin. Wherever possible, the inquest would take place in public with the next of kin, other interested parties and their legal representative present.
What reassurances can my hon. Friend give to those next of kin in relation to this part of the Bill and the new coroners Bill? I deal with many Army families through the all-party Army deaths group, and they see the coroner’s inquest as their mechanism for getting to the truth of the death of their loved one. Can he reassure them that these procedures will give them the truth?
The reassurance that I am sure other hon. Members want is that we will have discussions as that legislation goes through Parliament in the next Session. We will talk to my hon. Friend and have discussions with other hon. Members about its implications, and we will try to ensure that, as far as possible, we talk to them about the problems that they may raise. The only reassurance that I can give is that we will continue to discuss such matters with my hon. Friend and others.
Can the Minister tell me, one way or the other, whether it would be possible under the legislation that we are discussing today for a coroner’s inquest to take place in which the family of the deceased would not know the evidence, so that it would be, in effect, a secret court?
I thank the Minister for that, and I understand that we are going to debate the matter in the next Session, but my concern is about what we are doing today. Are we about to pass legislation, if his proposals are agreed, that will in effect bring about secret coroners’ courts?
We are trying to ensure that we protect intercept material and other secret material. It is perfectly possible that in doing so, processes and procedures may be required where these things take place behind closed doors.
To answer the point made by the hon. and learned Member for Harborough (Mr. Garnier), the decision to certify can be judicially reviewed. I hope that that answers his point.
For those parts of the hearing that need to be held in private, the coroner will be able to appoint independent security-cleared counsel to the inquest who would represent the interests of the next of kin and probe sensitive material on their behalf during the private sessions, thereby ensuring that their interests are properly protected at all times.
I am sorry to press the Minister, but I am not sure to what point he is now speaking. Is it the proposals for coming legislation, or is he saying that such proposals are in the Bill—because they are not? If he is talking about future legislation, that is jolly nice, but we have not yet seen it.
I am trying to reassure hon. Members about where we are going with coroners legislation, and about the serious points that have been made. I therefore ask the House to agree with the Lords in their amendments Nos. 103, 105, 107 and 132, which would remove the provisions from the Bill.
I certainly can. The hon. Gentleman will know that the Chilcot review established a number of principles for the programme of work to be done, and a number of right hon. Members on the Privy Council are taking that work forward. There are three phases of work, and we are reaching the end of phase 1. The Minister who preceded me in my post, now the Minister of State, Department for Work and Pensions, my right hon. Friend the Member for Harrow, East (Mr. McNulty), said that we would report regularly to Parliament on where we had got to with regard to the Chilcot review and intercept as evidence, and I can tell the hon. Gentleman that we will bring that report to Parliament in the not-too-distant future, to update Members. I hope that that is helpful to him.
Pursuant to the point made by my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble), does the Minister accept that the families of the deceased may not be as happy as he hopes if an independent, security-cleared barrister represents their interests in cases where they cannot hear the evidence about how the person that they loved died? That is a quite human and understandable point, and the Minister has been a little blithe in saying, “Oh, it will be all right because they will have a security-cleared barrister who will work on their behalf.” They want to hear it. A person that they loved has died; they want to hear the facts.
Obviously, what is said is not meant to be a disrespectful statement. We are trying to balance the needs of soldiers’ families—the needs of individuals—with the security of sensitive material. We are trying to strike a balance between the needs of state security and the need to be fair and reasonable to the families of soldiers.
I thank the Minister for giving way again; he is very generous. Is he aware that many people are concerned that inquests that take place where there is a jury are virtually always cases in which someone has died in police custody? Does he not consider the danger that when there is a death in custody there will be a temptation on the part of the authorities concerned to say, “We would rather this whole thing was not made public, therefore we will apply for a secrecy clause and the appointment of a specialist barrister who will not be able to disclose to the relatives the evidence held”? Does he not accept that a human element is involved with regard to soldiers’ families and the point raised by my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher), and a danger to society in granting such powers, which I do not believe are necessary?
There is always concern and worry about such matters, and my hon. Friend is right to draw attention to them, but we are trying to strike a balance between state security and the need to ensure that an inquest can take place properly. A police shooting or a similar incident would be a difficult matter, but it is the balance struck between the two factors that is important.
The Minister is being generous in giving way. Will he clarify something for me, because we are getting confused about access to information, especially for families who have lost relatives who are soldiers abroad? As he will know, in Scotland, we do not have coroners’ courts; we have fatal accident inquiries. However, coroners’ courts still cover the deaths of Scottish soldiers abroad. Indeed, one of my constituents was subject to such an inquest. Can the Minister guarantee that there will be full disclosure of information to families so that they can understand the reasons behind such tragic deaths?
We want as full a disclosure as possible, but I cannot guarantee that it would be possible to disclose every bit of information.
In answer to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), I point out that much of this debate will take place in connection with future legislation, which is part of the reason we agree with some of the Lords amendments. They take out many of the provisions concerned, which will allow us to discuss in the next Session many of the matters involved.
The Minister is intent on telling the House about future legislation, so I have one simple question about that. Will the future provisions relate only to matters of national security, or are the Government intent on extending them, as they did in the original draft of the Bill, to
“the interests of the relationship between the UK and another country”
“otherwise in the public interest”,
which is a carte blanche for the authorities to do exactly as the hon. Member for Islington, North (Jeremy Corbyn) said?
That will be a matter for future debate. The Government intend to take forward much of the legislation as it was drafted, but we need to have discussions with others about how we do so.
Amendment No. 106 would enable a High Court judge sitting as a coroner to require disclosure of sensitive material. The disclosure would not be limited to the coroner alone, but could also be made to the persons appointed as counsel to the inquest, members of the jury or to any properly interested person, such as bereaved families. While the amendment would, in principle, allow the jury as finder of fact to have access to all relevant material, it would do so at the expense of essential safeguards. It would create the potential for disclosure of all intercept material, regardless of sensitivity, to a wide number of people, thereby seriously undermining the ability to ensure the protection from public disclosure of sensitive intercept material and the capabilities and techniques by which it was obtained. The value of the techniques and capabilities would be diminished because targets would either know or could deduce when their communications might be intercepted and could take evasive action by using other, more secure means of communication. Such disclosure could undermine our ability to prevent future attacks or affect our ability to curb the activities of dangerous people.
It has been argued that disclosure as envisaged in amendment No. 106 would be no different from the existing disclosure permitted in criminal cases under section 18 of the Regulation of Investigatory Powers Act 2000. That provides for disclosure to a relevant judge in a criminal prosecution, when he is satisfied that the exceptional circumstances of a case make it essential in the interests of justice. However, that argument overlooks the difference between coroners’ inquests and criminal proceedings. The effect of section 17 of RIPA is that neither party in criminal proceedings can rely on or refer to the fact of interception of an individual’s communications and the product of that interception. That protects the continuing value of interception while creating a level playing field, in that neither the prosecution nor the defence can gain advantage from the interception.
However, cases may occasionally arise whereby the prosecutor considers that he cannot secure the fairness of the proceedings without assistance from the relevant judge. In recognition of that, RIPA provides that, in specific limited circumstances, the prosecutor may invite the judge to order a disclosure to him of the protected information. The purpose of informing the judge is to put him in a position whereby he can ensure the fairness of the proceedings. However, section 18 does not permit the disclosure of warranted interception in criminal proceedings. If no action by the prosecutor or judge could prevent the continuation of the proceedings from being unfair, the prosecution would discontinue the case. That provides a genuine safeguard. No such discretion to discontinue proceedings exists if the death occurred in circumstances in which the European convention on human rights requires the UK to hold an article 2- compatible inquest.
The Bill sought to address the insurmountable difficulty that sensitive material that is relevant to how an individual met their death cannot be disclosed in open court with a coroner sitting with a jury. No other existing mechanisms, such as imposing reporting restrictions on proceedings and/or holding certain sections of the proceedings in camera with the jury, and other interested parties entering into confidentiality agreements, would address the problem or provide sufficient safeguards. We do not believe that an issue as important as national security should depend on individuals honouring agreements any more than we would consider such safeguards sufficient in criminal proceedings. If an individual inadvertently or deliberately discloses sensitive information, the damage is done.
I am listening carefully to the Minister. He will appreciate that our concern is rather limited because coroners’ courts have limited jurisdiction for Scots, especially in the military. The Minister appears to be saying that information can be disclosed to the judge, the jury or a special prosecutor with security clearance, but what if the information is a material factor in the person’s death? Can that be disclosed in the coroner’s judgment, or will that part of the judgment also have to be kept in camera?
It may well still have to be kept in camera. It depends on the circumstances of the case, those surrounding the death and those surrounding any relevant material. The answer depends on the circumstances, but what the hon. Gentleman outlined could be the case.
Even if there were a legally binding sanction to prevent disclosure, there are some individuals for whom the threat of prosecution would not prove a deterrent. Disclosure of intercept capabilities would have a real and damaging impact on our ability to gather intelligence that is vital to national security. The Chilcot review on intercept as evidence recognised this—I hope that helps the hon. Member for Newark (Patrick Mercer), who is often nearly my hon. Friend—and that is why we are taking forward a detailed and extensive programme of work to ensure that we can meet the tests set out in it and allow intercept to be used safely, without putting national security at risk.
As someone who is taking part in that review, may I remind the Minister that disclosure is not the only problem? One of the other problems that the group originally identified is the retention of material. When the Minister tackles the way in which the new legislation can cover the substance of amendment No. 106, he must also consider the group’s work on retaining material to ensure that a burden, which impairs their work, is not to be placed on the agencies.
We look forward to receiving the report from the right hon. Gentleman and his colleagues. Certainly, we will have to consider the retention of material alongside the other points that have been made.
The Chilcot review also recognised that, in criminal proceedings, the ability to choose not to put intercept product into the public domain afforded an important safeguard. I believe that amendment No. 106 is flawed because of the inadequate protection it affords. However, there are other problems, too.
It is unclear how the new clause for which amendment No. 106 provides would work in practice in the absence of any legislative mechanism to ensure that a High Court judge is appointed to hold inquests involving the consideration of such material. There are provisions for a coroner to appoint a deputy coroner who is a High Court judge, should he choose to do so. However, as with other suggestions that have been made for safeguards, too much is left to chance and national security needs must take precedence.
When the amendment was debated in the other place, concern was expressed about the need to allay fears that there is any sort of shoot-to-kill policy. We need to recognise the important role that the Independent Police Complaints Commission plays on those rare occasions when individuals are shot by armed police officers. It has a responsibility to investigate all the facts and make a recommendation to the Crown Prosecution Service about whether an offence has been committed. Its reports are also a crucial source of information to the inquest.
We recognise the importance of ensuring that bereaved relatives and other properly interested persons should be involved in as much of an inquest as possible. However, it is always necessary to strike a balance between the interests of the families and the public interest when material that is central to the inquest cannot be disclosed publicly.
I do not understand the point that the Minister is trying to make. Will not the practice that he proposes simply lead to delays in holding a coroner’s court inquest into the death of somebody who died at the hands of, for example, the police? Would not it be better if a case proceeded more rapidly to a coroner’s court? The practice could be perceived as a delaying tactic by the authorities, which would cause even more distress to the victim’s relatives.
We do not believe that it is a delaying tactic. It is a proper route to trying to find out exactly what happened, getting to the facts of the case and trying to learn from them. We do not perceive it as a delaying tactic.
We are confident that the provisions that we intend to introduce in coroner legislation—with the relevant safeguards—strike the right balance of enabling the coroner to consider all the relevant material while protecting sensitive material from public disclosure if that is contrary to the public interest.
The Minister said that it was important to strike a balance between families and the public interest. Those are fine words, but how do the Government’s provisions strike that balance, when a family can simply be told that it is in the public interest to keep the matter secret? A family in those circumstances will be left suffocating with frustration and there will be no sense of balance. When have the public ever been told what the public interest is?
I understand my hon. Friend’s point and the strength of feeling about the issue. He knows better than the vast majority of us the importance of his comments. I am trying to say that, in a small, limited number of cases, there may be a point at which the sensitivity of the material is such that it simply cannot be used in open session. I hope that that will apply to only a small number of cases, but sometimes the public interest—the interest of national security—requires an inquest to be held without a jury and without others being present.
The Minister suggests that we are considering either/or and that there are no fine lines. However, surely proceedings could be taken in camera and reporting restrictions can be imposed. There are gradations of secrecy, short of complete secrecy, that could allow for the recognition of relatives’ grief and frustration.
I do not think that any of us find particularly easy the circumstances to which my hon. Friend the Member for Foyle (Mark Durkan) was referring, or any of the other cases to which hon. Members elsewhere in the House have referred. The issue is an extremely difficult and sensitive one. As a Minister, I feel that the issue is sensitive and requires careful handling, so I can only begin to imagine what it must be like for people in the circumstances described.
I can only begin to imagine how difficult it must be when, as my hon. Friend said, people are then told, “Because of the interests of protecting sensitive material, the proceedings need to be held in secret, but don’t worry, special people will be there to protect your interests.” Against that, it must be the case that nobody who has stood in my position would be able to say, in any sense of the word “honestly” or with any integrity, that there would never be a circumstance in which it would be not be necessary for material to be protected.
I accept absolutely the distress of the relatives of someone who has been killed or who has died in circumstances that need investigation. However, there is a wider public interest, which is that everyone should be assured that the processes are above board and clear. We all have an interest in an examination of the facts surrounding the death. In arguing the case for national security, the Minister is effectively saying that he is unable to give us any understanding or take us into any confidence as to how conclusions in such cases are reached or whether they are justifiable. That is the dilemma that we all face in this society. Our uncertainties about those who make judgments on these issues make some of us extremely cautious about permitting secrecy of that nature.
That is why we proceed with caution. That is also why we have agreed with the Lords, with respect to those proposals in the Bill that have been removed, to allow for more discussion and consultation. The only point that I make to the hon. Gentleman, and which I made to my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher), is that although we would not want such proceedings to take place in many circumstances—in fact, it would be better if they took place in no circumstances—they will be necessary in some circumstances.
I would like the Minister’s clarification on one point. My understanding is that the amendment would allow information to be given to a High Court judge sitting as a coroner. It would then be up to that High Court judge to decide who else should be informed about such matters. Is the Minister really saying that High Court judges cannot be entrusted with making a judgment about whether there was a question of national security?
In many cases in which a High Court judge is sitting, he will not be the finder of fact; the jury will be the finder of fact. The judge will need then to share that information with the jury, but in certain circumstances it would not be in the national interest to share it.
My point is that in those circumstances there would be material that may have to be shared with the jury, but which we would not wish to see shared. This is a difficult issue and I appreciate the points that hon. Members have made, but I ask the House to disagree with the Lords amendment.
I do not want to interrupt the hon. Gentleman before he is in full flow, but let me say that my remarks were quite deliberately wide ranging. I hope that that was okay with hon. Members, because such matters are extremely important, which is why the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said what he did.
We are all grateful to the Minister for doing that, because it has teased out some wider issues that will be important not just for the Bill before us today, but for future Bills in future Sessions. However, I will concentre on the amendment and the Government’s desire to disagree with it.
The Minister made the point, both about the amendment and more generally, that the Government are seeking to provide a balance between the needs of national security and the needs of the family, the relatives and wider society for an acknowledgement of what has happened when an unexpected death occurs. I was not convinced when the Minister said that that balance was not achieved by the amendment, because Lords amendment No. 106, as it now is, achieves that balance in a rather elegant and practical way. The amendment makes a small change to the Regulation of Investigatory Powers Act 2000 to allow an article 2 compliant inquest to take place when sensitive material exists, but only when a High Court judge sitting as a coroner has determined that the material concerned is central in ascertaining how the person came to die. That is a crucial point, which the House should address.
The Minister talked about the differences between criminal proceedings and proceedings in a coroner’s court. I take the point that they are not identical; nevertheless, I am sure that he would admit that the current situation is deeply unsatisfactory, not just in general terms, which it is, but in specific terms, in that there are inquests that cannot take place properly unless the issue of sensitive material can be addressed.
Would the provisions not be further improved if proposed new subsection (8B) in Lords amendment No. 106, to which my hon. Friend is referring, were amended to the effect that the disclosure would not be injurious to the national interest? Then there would be two tests: first, whether disclosure was essential to the finding of the necessary facts; and, secondly, whether disclosure would be injurious to the national interest.
My right hon. and learned Friend makes a reasonable point. In this case I rather agree with the point that the hon. Member for Eastleigh (Chris Huhne) made. Part of the purpose of the amendment is specifically to ensure that the coroner is a High Court judge. One would hope and expect High Court judges, as a matter of course, to hold the issue of national security dear.
No, but the national interest clearly forms part of the background of any decision taken in an area of such sensitive information. In the end, cases will be judged by individual judges. Part of the purpose of the amendment is to ensure that it is not a junior member of the judiciary taking the decision, but a High Court judge. There comes a point at which we have to trust the individuals who are taking such decisions. Ensuring in legislation that the people taking them are of seniority seems a significant step forward in achieving that.
Further to the individual cases to which I have alluded, the Minister said in his speech that article 2 of the ECHR requires the Government to have proper procedures in place to ensure the accountability of agents of the state and to maintain public confidence. There is clearly a duty on the state to investigate a death in custody with a proper inquiry, but there are cases where it is simply impossible for an inquest to be held that would be compliant with article 2. That is an embarrassing and nonsensical position for any system of justice to get into.
The new clause would permit the disclosure of sensitive RIPA material in a highly structured manner, controlled by a judge, to the family of the deceased, their counsel and the jury at an inquest. I repeat—this is very important—that that will happen only with the proviso that the High Court judge believes that the information contained in the intercepted material is central to finding out how the person died. Clearly, that decision will be for the judge. Any of the other parties would be able to make submissions, but in the end, it would be an exceptional circumstance for the disclosure to take place. It would be a necessity test and any indiscriminate disclosure of intercept material would certainly not be allowed.
I take all the Minister’s points about the need not to compromise the use of intercept material. As he knows, Conservative Members have argued for greater use of intercept material for a long time. However, some of the Minister’s assertions in criticising the amendment today—and, indeed, some advanced by the Minister in the other place—are fairly questionable. We heard in the other place that the provision would allow the wide disclosure of very sensitive material, but that is simply not true. That would not happen unless an individual judge made a catastrophically bad decision—it is barely worth thinking about; it is so unlikely—so we can set aside that canard.
The noble Lord West said in the other place that it was
“unclear how the new clause would work in practice in the absence of any legislative mechanism to ensure that a High Court judge is appointed to hold inquests”.—[Official Report, House of Lords, 21 October 2008; Vol. 704, c. 1063.]
Under section 14 of the Coroners Act 1988, however, coroners can apply for the jurisdiction of an inquest to go to a circuit or High Court judge, and, indeed, High Court judges have sat as coroners in recent inquests—including, of course, the inquest into the terrible shooting of Jean Charles de Menezes. Lord West concluded with the point that, in discussing material that cannot be disclosed publicly, it is necessary to balance the interests of the family and the public interest. That is exactly right, but that is precisely what the amendment would achieve.
I regret the fact that the Government have set their face against this amendment and are trying to push everything back into a coroners Bill, when presumably these issues will come back to the House again. As I said, there are urgent cases at present where inquests cannot take place because of this lacuna in the legal system, so I disagree with the Minister and urge the House to agree with the Lords in the said amendment.
I am delighted that, following discussions here and in the other place, the Government have seen fit to withdraw their very substantial proposals for changes to the coroners system—to confer on the Secretary of State the ability to halt a coroner’s inquest in mid flow, to replace the coroner and to meet in secret. It seemed to me that those were extremely dangerous proposals; I hope that the Minister will not bring them back in any forthcoming coroners Bill.
It may be easy to forget, but the coronial system has been a bulwark of our freedoms in this country for a very long time. The ability to investigate a death, particularly one at the hands of an agent of the state, has been an absolutely essential guarantee against overweening state power. Many generations have fought against excesses—they have come from the Tudor secret service and beyond—to establish an independent system. It is crucial that it continues to operate independently, which is why I was so pleased that at least parts of the Bill had been removed.
Apart from those remarks, I do not want to open up a wider discussion at this stage, but I want to focus specifically on Lords amendment No. 106, because it deals with a relatively technical point that was overlooked in the Regulation of Investigatory Powers Act 2000.
I do not think it has quite the same problems as the Bill as originally drafted, precisely because the amendment provides for a High Court judge to be appointed as coroner to assess whether evidence should be disclosed. The very fact that the coroner is a High Court judge, with all the independence for which our judiciary is rightly famed, suggests that the key condition is there.
A small lacuna was left in section 8 of RIPA, whereby a High Court judge who in all other circumstances listed in the section can see the material in question and come to a conclusion about it could not do so when sitting as a coroner. Subsequently, that was widely understood as a gap in RIPA. The amendment is designed to include the ability of a judge to sit as a coroner at an inquest to hear the evidence in the same way as he does in all other instances.
We should perhaps remember that at the outset of the Bill the Government impressed on us all how urgent it was to deal with the secret inquest—not as a general issue, but in order to allow a particular inquest to proceed. That was the inquest into the death of Azelle Rodney, who was shot by the police on 5 May 2005. Indeed, the Government wrote to the Rodneys’ solicitors Hickman & Rose on 30 November 2007, promising that they would change the law so that the inquest into the death could resume quickly, as it had been delayed a year. The urgency arose not least because the state has a legal duty to ensure a prompt investigation into a death in such circumstances. That means holding an inquest as soon as possible.
I spoke to the Rodneys’ solicitors yesterday, who made it clear that if the Government do not accept the amendment today, they will lodge a case with the European Court of Human Rights over the Government’s failure to comply with the promptness requirement inherent within article 2—the right to life—of the European convention on human rights.
I agree with the hon. Gentleman and he is correct to refer to that case. Is he confident, however, that the Lords amendment will bring about the required timetables necessary to prevent the trauma that families go through, waiting months, if not years, for an inquest?
I am not confident that this is the last word on the subject. I agree that we will need to consider reforms to the coronial system and I believe that a coroners Bill is, frankly, overdue. Many other issues need to be dealt with to speed up inquests and ensure that adequate and efficient investigation takes place. I believe, however, that the Lords amendment is a step forward and we should not allow the best to be the enemy of the good. In this case, I hope that the Government will accept the amendment, not least because it will avoid them yet further embarrassment in being arraigned before the European Court of Human Rights over their failure to abide by article 2. The Rodney family’s lawyers are confident that their case will be successful. I am no lawyer, but my advice is the same.
We must not forget the Government’s promise a year ago to change the law to allow this inquest to go ahead. Today, the Government have a chance to honour their pledge. The amendment does, it seems to me, strike a sensible balance, bearing in mind that we are entrusting this matter to a very senior member of the judiciary, as the hon. Member for Ashford (Damian Green) pointed out. It is simply not the case that the amendment would allow a wide disclosure of very sensitive material, as Lord West, the Minister in the other place, claimed it would. It would allow the disclosure only of RIPA-related material, and would allow that only when a High Court judge was sitting as a coroner and was satisfied that the material was essential to finding out how someone died.
The right hon. and learned Gentleman is far more versed in these matters than I am. However, I agree with the hon. Member for Ashford that if we are to entrust a High Court judge with such a degree of flexibility, that is something that he will be able to decide within the bounds of deciding whether an action is essential. If the amendment proves to be inadequate in enabling a balance to be established in the specific instance of the Rodney case, we shall have—if the Minister is to be believed—an early opportunity to correct ourselves. As the right hon. and learned Gentleman knows, the House has a long tradition of eating its words and changing its mind, and long may that be so.
We must not forget that at the heart of the amendment is a dead man’s family: parents who are unable to grieve properly for their son because they have been denied the most basic of rights—the right to a fair hearing on why he was shot by an agent of our state. Even at this late stage, I urge the Minister to reconsider.
I will be brief.
I spoke on this subject during our earlier debates on the Bill. Although all the publicity was given to the issue of periods of detention, I considered the issue of secret sittings of coroners’ courts to be of greater importance to anyone concerned about liberties. The number of days for which people are detained is relatively arbitrary, but the provision on coroners’ courts would have been extremely serious, so I was very pleased when the House of Lords came up with a compromise amendment.
Let me record my thanks to and appreciation and admiration for the organisation Inquest, referred to by the hon. Member for Eastleigh (Chris Huhne). That organisation, which is based in my constituency, has done amazingly good work over a long period in supporting the families of people who have died in custody. Nothing is popular about such cases, but the organisation has been dogged in pursuing them. I think we should appreciate the value of civil society organisations of that kind which do so much to promote decent standards and liberty, and which help the House to produce better legislation.
As the hon. Gentleman pointed out, this is not the first occasion on which the House has eaten its words, and it will probably not be the last. I was relieved by the decision reached by the House of Lords, but I hope that the Minister will be able to help us further. I understood that the Government had accepted the Lords’ view, and I am therefore surprised that they are asking us to reject the amendment. The Minister outlined the provisions of new legislation, which was helpful—this is not a criticism—but I am slightly worried that we will not be revisiting the whole issue in the new coroners Bill. It seems that we shall return to where we were previously in this Bill, with what I consider to be the dangerous precedent of court hearings taking place virtually in secret.
A death in custody, a serviceman’s death or a death as a result of a police shooting is obviously horrific. It is devastating for the family involved, who may understandably have great difficulty coming to terms with the reason for the death and even greater difficulty coming to terms with the complete lack of evidence offered to them in public, and the failure to make any information available to them. The trauma is very great. In my constituency, I have dealt with the families of people who have died in police custody or in similar circumstances, and I know that the trauma they undergo—constantly questioning what went on, but not being allowed to know—is very serious indeed.
The other punishment for families is the lack of a timetable. If the inquest is repeatedly delayed—for years on end, in some cases—there can be no closure for those families. The bereavement goes on, and they will never entirely get over the loss of a loved one, but at least the completion of a judicial process provides an element of closure that allows them to move on a little. Perhaps the Minister will help us a little on the question of timetables as well.
I have some understanding of why the House of Lords came up with this compromise. It is clearly far better than what was in the Bill before, in that it empowers a High Court judge to decide whether or not material is sensitive. Nevertheless, I am slightly nervous about the amendment. I feel that it is too easy for agents of the state, be they the armed forces, police, social service departments or the health service, to say, “Hang on. There’s something very peculiar and sensitive about this”, and to tell the judge that they would prefer the material not to be disclosed.
I hope that a judge would stand up for the public interest and the interests of the family, but I think the best way of enabling that to happen is to make it extremely difficult for any degree of secrecy to surround any death in custody. If we do not make that difficult now, as we pass the legislation, further down the line it could easily become routine for public bodies to say, “We want the hearing to take place in secret because it will be far too inconvenient for us if all this comes out.”
I assume that if the Government have got the legislation wrong, which is conceivable, article 2 of the European convention on human rights will form the basis of a case that could go to the European Court. Article 2 places a positive duty on the state to investigate a death in custody with an inquiry that is on the state’s own initiative, is independent both institutionally and in practice, is capable of leading to a determination of responsibility and the punishment of those responsible, is prompt, allows for sufficient public scrutiny to ensure accountability, and enables the next of kin to participate. Unless all those criteria are met, we will clearly fall foul of a European convention that we support. I hope that they will all be met, either in this Bill or in the new coroners Bill that we shall deal with in the next Session. The European convention does actually mean something, and it is quite an important mechanism of defence.
Time is of the essence. I was worried by the Minister’s reference to another body that, acting as an intermediary between the horrific event of a person’s death in custody and the opening of an inquest, would conduct some sort of investigation. That strikes me as a likely recipe for delay, for the creation of a fog around something that ought to be clearly visible, and for even more pain and stress for the families of those who lose their lives in the circumstances that we are discussing. It is up to us as a Parliament to ensure that agents of the state who cause a person’s death are brought to justice, and above all that the families of those who have lost their lives are fully aware of all the evidence and of what caused the deaths of their loved ones.
Before I deal with the tightly drafted new clause tabled in the other place, I want to build on what the hon. Member for Islington, North (Jeremy Corbyn) said. I entirely agree with his underlying belief that when the agents of the state have caused deaths, it is essential that the surrounding facts are made apparent, through inquests and to the families.
In Committee, I deeply opposed the provisions then incorporated in the Bill, because they enabled the Government to withhold whole classes of information from an inquest—for instance, information that would damage this country’s relationship with another power, and information that would be damaging for any other proper reason. I cited a specific example, which I shall repeat now.
Let us suppose that someone died in the course of extraordinary rendition—which is not impossible, given the nature of extraordinary rendition—and happened to be in an aircraft that touched down at Heathrow. I can envisage the Government intervening to prevent details of the death from being made public in order to protect their relations with the United States. That is but one example. I was deeply concerned when the Minister said that the new coroners Bill would incorporate most of the language of the Counter-Terrorism Bill as it was in Committee, and I would robustly oppose such wide powers being given. Therefore, I agree with much of what the hon. Member for Islington, North said.
I shall try to make my second point with some delicacy, as I do not want to do what I should not be doing in this context. I served in the Foreign Office for five years, in the course of which I saw a great deal of intelligence information because I had a responsibility, subject to the Foreign Secretary, for GCHQ. There are two areas that ought to concern the House, one rather more so than the other. The anxiety has always been the disclosure of techniques. I suspect that that is less of a problem than we think, but I agree that we none the less need to address it, and it is very good news that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) is sitting on the Chilcot committee. The other point, on which there is not sufficient focus, is whom we target for the purposes of intercept. As Members will appreciate, that is not always just individuals—it is sometimes institutions and others, and it may well not be in the public interest for the identity of some of the targets to be disclosed. That matter has to be seriously considered, and addressed in measures that come before this House.
There are defects with the proposed new clause, but I shall vote for it as it is an important step in the right direction, and if this House were to pass it, further safeguards could be built into it in the other place. Starting from the proposition that there are the problems with the disclosure of intercept information that I have identified, I go on to the next proposition, which I think most people will agree with, that it is very important that credible and relevant evidence should always be available to a court or inquest, unless there is some overwhelming reason to the contrary. That is the proposition that is reflected in the new clause. There is a difficulty—both the Minister and I have referred to the nature of the problems—and the other place sought to address it in two ways: first, to confine the coroner with the relevant powers to a judge of the High Court; and, secondly, to confine the circumstances in which the order-making power can be exercised to those set out in proposed new subsection (8B). There is a problem with that provision, because the High Court judge may direct a disclosure only if satisfied that the requirements of (8B) are satisfied in that disclosure is
“essential to enable the matters that are required to be ascertained by the inquest to be ascertained”—
in other words, we cannot ascertain the relevant facts unless we have the intercept material.
The problem is, however, what if that intercept material is itself injurious to the state? For instance, it might identify a body, person or institution as being targeted when it is undesirable for that target to be disclosed. From reading the language of (8B), it seems to me that if the judge concludes that disclosure of the material is essential for the proper ascertaining of facts, notwithstanding the injurious nature of the disclosure the judge may well be obliged to order the disclosure. What is not provided for in (8B) is the balancing exercise. My hon. Friend the Member for Ashford (Damian Green), for whom I have the greatest of respect, says, “Well, you can expect a High Court judge to exercise good sense.” Of course we can, but a High Court judge, or any old judge, has to exercise his powers in accordance with the criteria laid down by Parliament, and if Parliament does not say that respecting the national interest is a relevant criterion, I am by no means certain that, however sensible a High Court judge may be, he or she would be able to take steps to respect that.
The right hon. and learned Gentleman is simultaneously right and wrong. He is right that the new clause does not contain the qualification requiring the coroner to take into account the interests of national security—I would be slightly more circumscribed, in that I would use that term rather than the “national interest”, which is the term he uses. He is wrong, however, in that that is to an extent covered in the previous provision—proposed new subsection (1)(d)(ii)—where the coroner has the discretion to determine whether the information that has been provided stays with him or her or is passed on to other persons or parties to the inquiry. There is a feeling that the current wording of the new clause gives no indication of how that discretion should be applied.
I always enjoy debating with the hon. Gentleman, and I very often agree with him, but he has a problem in criticising me on this issue, because it is the jury who are responsible for the ascertaining of facts, and under (8B) the coroner is entitled to make a disclosure where it is essential for the ascertaining of facts. As the jury is the only ascertainer of fact, he does not have much discretion, because in order for the facts to be ascertained they have to be disclosed to the jury.
The right hon. and learned Gentleman is right in the context of a jury and a coroner’s court. I may be wrong, but I assume that the new clause is intended to give the coroner the discretion to allow for a reduced version of the material in a form that does not prejudice national security to be passed to the finders of fact: the jury. I agree with the right hon. and learned Gentleman, however, that that is not clear within the terms of the new clause as worded and that further refinement is required, but that does not stop me supporting the new clause.
We are as of one in this sense: we see merit in the approach, but we recognise that the new clause is not perfect, and we think that the House should support it in the hope that it will be further amended in the other place.
Let me conclude by explaining how it could be improved further. A test that requires the balancing exercise in terms of national security considerations could be incorporated into (8B), so that it would be for a High Court judge to decide whether information, although essential, was too injurious to be disclosed. I see merit in taking that step. Another way forward would be to allow that decision on whether there should be disclosure to be treated at the preliminary point, which could go to the Court of Appeal. I think that I would be content for the Court of Appeal to be a final arbiter on the matter, as it would be very sensitive to the question of national security. I could see the decision of the trial judge—the High Court judge—being treated as a preliminary point, to enable the Court of Appeal to rule on it before the inquest proceeded further. There is another way of addressing the problem: the High Court judge sitting as the coroner could determine, in very special circumstances, that there should not be a jury at all. In other words, the judge could determine that the jury, if it is already sitting, should be removed and, if it is not, there could be a requirement for the judge to sit alone as the coroner. Additionally, of course, there is always the power to restrict publicity.
Any or all—probably all—of those measures could properly be incorporated into the new clause. If that happened, the measure would deal with most of the Minister’s anxieties. It would also address the feeling around the Chamber that intercept evidence should be used in appropriate cases, so that the families and everybody else can have as many facts as are available surrounding a death.
The interchange between my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. Member for Somerton and Frome (Mr. Heath) has been more illuminating than is often the case in debates of this sort. My right hon. and learned Friend has analysed not only what is wrong with the Bill and the Lords amendments, but how they can be improved. I was not a Minister, but I was on the edges of Government when he was in Government. I entirely accept what he says on the need, occasionally, for information to be kept out of the public domain. That is simply a matter of common sense, and I hope that none of us is naive enough to think that on every occasion, every piece of information in the hands of a state agency or the Government should be made public. Clearly, there are times when national security and the interests of criminal investigation require certain pieces of information to be kept out of the public’s sight.
Having said that, the implied, but not the express, position of a number of Members who have spoken in the debate, perhaps excluding the Minister, is that, by default, justice should be in public. When all things are equal—they rarely are—coroners’ courts, whether chaired by a High Court judge or other judicial officer, should be in open court, with all relevant evidence being adduced, either before the coroner, if he is sitting alone, or before the coroner and the jury; and there should be full disclosure of all evidence between the interested parties and the court.
The group of Lords amendments that we are briefly considering lead me to agree again with my right hon. and learned Friend, this time on how the kind of decisions that we are talking about should come to be made. As I understand it, at the moment, the Government want to place in the hands of the Secretary of State the power to issue certificates. That is unhealthy. It leads to secret government, let alone secret trials. Like my right hon. and learned Friend, I think that it would be much more sensible and, indeed, publicly more acceptable, for questions of that sort to be decided by the presiding coroner, be he a High Court judge or other judicial officer. In that way, the matter could be argued. It could be argued in chambers or in private, but it could none the less be argued.
Clearly, such procedures are not novel. For example, espionage cases are tried at the central criminal court; and cases involving matters of acute sensitivity often involve applications to the judge that certain parts of the evidence, or all of it, should not be disclosed in public, meaning that it should not be heard in the presence of people in the public gallery or members of the press. Such things do not happen every day, but they happen quite frequently, so I do not see why a similar procedure could not be drawn across into the system of coroners’ inquests. The Lords amendment mentions a High Court judge, but I have no doubt that any experienced coroner, circuit judge or whatever judicial officer is appointed to deal with any inquest, could make a decision on the grounds of national security, public safety or whatever, in a just and sensible way, case by case.
My second point is this: we were promised a coroners Bill in this Session’s draft legislative programme and in the last Queen’s Speech, and we are being promised one in the coming Queen’s Speech, and it strikes me that the issues we are discussing ought to be dealt with discretely, in the round, in a coroners Bill. However, measures are now being tacked on to a Counter-Terrorism Bill.
This brings into our discussions all sorts of interesting influences. Hon. Members will remember the problems that the Prime Minister got himself into with the Government of Iceland, who were deeply upset that Icelandic assets in this country had been frozen under counter-terrorism legislation. It so happened that the Act under which the Government froze those assets in London was the Anti-terrorism, Crime and Security Act 2001, and it was under the “Security” bit that the assets were frozen. However, the Act’s rather long title did not fit into the headline space of whatever the equivalent of The Sun is in Reykjavik, so Icelandic people saw only the “Anti-terrorism” bit. Unsurprisingly, they were upset.
Here, we are dealing with matters to do with inquests in a Counter-Terrorism Bill. Of course there is sometimes a connection between terrorist activity and inquests. For goodness’ sake, the tube and bus bombings of July 2005 made that only too clear. However, if the Government are to be taken at their word on this occasion—I do take them at their word from time to time—why will they not lift part 6 out of the Bill and put it into the new coroners Bill, which they should introduce early in the next Session? That might lower the temperature.
I should like to say, in parenthesis, that my hon. Friend the Member for Ashford (Damian Green) was entirely right to express concern about the application of article 2 of the European convention, as was the hon. Member for Islington, North (Jeremy Corbyn), who also brought that point to the fore. A further point that I want to draw out from what the hon. Gentleman said earlier relates to the nature of the deaths that we are talking about. The provisions will deal with deaths in police custody and possibly even deaths in prison custody, depending on the character and antecedents of the deceased and on the geography of the location of the death. The hon. Gentleman will remember that—in the last Parliament, before the 2005 general election, I think—we passed the Corporate Manslaughter and Corporate Homicide Act. I might have got the chronology wrong, but as I recall it, the deal was that deaths in custody, in the Prison Service and in police cells, were not immediately to be brought under the remit of the Act. There was to be a delay of two or three years—
I am making a suggestion; I have no power over those who work behind the Chair. However, I dare say that somebody with a bit of initiative, such as the Minister, could find out the answer.
The point is that there will come a time when deaths in custody, involving those either in the care of the police or in the care of the Prison Service, might also have to be considered under the terms of the Corporate Manslaughter and Corporate Homicide Act. When we come to consider these provisions—I suggest that we do so under a coroners Bill, not under this legislation—the House will need advice from Home Office Ministers on the marriage of that Act and inquests into deaths in lawful custody. I urge the Minister to bear that in mind, because I can see all sorts of problems coming down the track. Trials under the corporate manslaughter legislation will be heard in the Crown court. Is it being suggested that, if someone has allegedly been killed by the police under the provisions relating to corporate manslaughter, the trial should be heard in secret, and only by a High Court judge, subject to the provisions of the Counter-Terrorism Bill?
It is not only members of the public, be they British or foreign nationals, who will be drawn into the inquest system. Military deaths have been mentioned. We all know of the huge delays in the timetable for inquests into those killed in action or on active service in Iraq. Their bodies are brought back to the UK through Brize Norton, and the coroner for Oxfordshire is therefore responsible. One particular deputy coroner has done most of the work. However, because there is such a dearth of qualified coroners to do the work, there are long delays, which leads to emotional and other problems for the families, as other hon. Members have said.
Yes, the legislation is designed to provide an effective coroners’ system, but effective for whom? I suspect that it is designed to be effective for the Government, because they do not want any embarrassment. They do not want coroners to say disobliging things about how the Ministry of Defence, or some other agency of the state, has acted.
The issue is even more complicated because while there are people who are killed in action or on active service in open battle—we are all too sadly used to seeing television reports of such incidents nowadays—there are people killed whom the Government would rather we did not know were on active service. We cannot be naïve about the need to keep some matters out of the public domain, but the families of those who serve in the special forces or the secret services have as much of a right to know how and why their loved ones were killed or died as those who are grieving the loss of someone killed in a motor accident or a train crash—a more ordinary, but none the less terrible, death.
We cannot just assume that we are talking here about cases of terrorists or suspected terrorists dying in prison or police cells. We may be dealing with the deaths of people who are seeking to protect us from terrorists, and their families being prevented from having full access to information about those deaths. There are two ends to the spectrum and plenty of grey territory in between. If we are to pass this Bill as it stands—and we are doing this in the wrong order, because we should have a coroners’ Bill in the new Session—we must come as close as we can to article 2 compliance; otherwise we will be misbehaving.
My final point is about the current use of public interest immunity applications and certificates. My right hon. and learned Friend the Member for Sleaford and North Hykeham is an experienced practitioner in the criminal courts and he will be well aware of the use that those acting on behalf of the Government—and I use the word “Government” in its widest sense to include the police, the secret services and so on—make of applications for PIIs, so that sensitive information does not reach the public domain. Again, that is not an unusual procedure, and we should learn from it when we consider the Lords amendments and the Government’s response to them. There are practical solutions that enable us to comply as best we can with article 2 and to allow the bereaved to have the necessary information to understand why their loved ones were killed or died. There is sufficient good will across this House and between the two Chambers of Parliament to enable us to arrive at a sensible solution. I am not sure that the Government’s solution can be classified as sensible at the moment.
Of course, I accept that Lords amendment No. 106 is not ideal. It is not perfect. However, as others have said, we can build on it. I suggest that we do so.
The debate has been unusually thoughtful. Every Member who has spoken has expressed not uncritical sympathy with and support for Lords amendment No. 106 without endorsing it wholly. From the thrust of what the House did not say, it is that it is clear that it is unhappy with the level of secrecy that could and will arise unless we do something about it.
The House is in the debt of the Minister, who thoughtfully allowed the debate to range widely in his opening remarks. He invited the House to speculate and to think about both the present situation and the future. That was the right thing to do and was very helpful. Whatever we decide, the coroners Bill is coming up and it would be a great mistake if we then reverted to all the things that we are frightened of and worried about tonight.
I know that the Minister has been listening. He made it clear that he is acutely aware of the balance that is needed and the pain that is caused to the relatives and families of people who have died. He sees the tension and the paradox between the two. I do not think that he needs convincing, but I hope that the Government will understand that fact and will ensure when they draft the coroners Bill that the balance is pitched rather differently. Our job, as a House of Parliament, is to ensure that people and their relatives are properly protected and, if we have to balance it one way or another, to ensure that there is greater rather than less disclosure.
I take a slightly more generous view than the hon. and learned Member for Harborough (Mr. Garnier) about the Government’s original intention. There was concern that there had been unreasonable delay in the case of few inquests that were held up by reason of the fact that material could not be provided under the present system, in the Government’s view, that would enable the facts to be properly ascertained.
My argument was not with the Government’s intention—if I am not being naive in taking such a generous view—but with what they proposed as a solution. In the Bill passed by the Commons, the solution proposed by the Government was entirely unacceptable. As we have said on a number of occasions, it was unacceptable because the Executive were taking the decision in cases where the problem was the death of an individual at the hands of agents of the state. Let us remember that. The state was going to determine how those facts were to be ascertained and, indeed, whether they would ever see the light of day at all. In principle, that was unacceptable.
It was unacceptable for the Government to determine, effectively by order, that a jury would not sit in such an inquest. It was unacceptable for a Minister in effect to determine that an inquest should be held in secret, behind closed doors, with the result that the public and even people with a legitimate interest in the case were not admitted. That is quite inconsistent with how we have always historically held inquests in this country. It was also entirely unacceptable that hand-picked coroners, chosen and appointed by Ministers, should be the persons who would inquire into the circumstances of a death at the hands of agents of the state. That proposal was so extraordinary that it was common ground among many hon. Members that it was unacceptable.
There is a further difficulty with the Government’s original proposals, which I raised with the Minister in an intervention and which was picked up by the right hon. and learned Gentleman whose constituency I can never quite determine—
I am referring to the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg)—I think that I have got it right. My point was that, even if everyone accepted the arguments that Ministers adduced to support their contention that the provision was necessary for national security, they were not going to be content with that. Instead, in clause 77’s proposed new section 8A to the Coroners Act 1988, they were determined that inquests should be held in secret
“(a) in the interests of national security,
(b) in the interests of the relationship between the United Kingdom and another country, or
(c) otherwise in the public interest”,
however that “public interest” would be defined outside of national security. In other words, things could be secret simply because Ministers certified that they needed to be in the interest of avoiding embarrassment, or for some other reason.
I am already distressed by the extent to which relations with other countries seem to have a bearing on the conduct of court proceedings in this country, which I had always thought were immune from that sort of political pressure. For it to be written into new statute that a coroner’s inquest would depend on whether another country or its rulers would be offended is to me abhorrent. I will not have coroners’ inquests in this country determined and dominated by the mood or interests of some princeling in the Arab world, or wherever else.
May I reinforce the hon. Gentleman’s point? If a British subject died in Guantanamo Bay as a result of the treatment that he or she had received there, and the body was repatriated to the UK, I anticipate that there would be an inquest into the circumstances of the death. However, I expect that the Government would be extremely embarrassed about having conditions at Guantanamo Bay revealed to the public, and that they would therefore utilise the clause to which he is referring.
We do not have to use a hypothetical example, as we know from friendly fire incidents in Iraq that the US was extremely reluctant to allow evidence about what its forces were doing to be used in the inquests into the deaths of our service men and women. We already have the book; we just need to read it.
Precisely so, and we now know perfectly well that a fraud investigation can be stopped at the request of a potentate of another state. If an ally were to ask us not to proceed with an inquest because it might be embarrassing or cause problems domestically or internationally, we know that that request would be acceded to. That is what is so unacceptable.
I was surprised and dismayed by what the Minister said in response to my challenge on this matter during his opening remarks. He seems to take the Bourbonist view that the Government will learn and forget nothing as a result of their experiences in the discussion of this Bill so far. Apparently, they will come back in the coroners Bill with precisely the same form of words that they are abandoning here. We are moving nowhere towards finding a satisfactory system. The Government will face exactly the same arguments against their proposals in the context of the coroners Bill, and eventually those proposals will be defeated in another place and we will be back to square one. We will not have moved forward one inch in providing for a quick, open and proper inquest for those who need one.
There are strong reasons for not waiting for the coroners Bill and for trying to find a proper solution even at this stage. Those in another place who proposed the amendment have done a good job in pointing us towards a solution. If I were in the Minister’s place I would be grasping that solution to try to find a workable way, in the Government’s terms, to accept it. Some of the Government’s arguments against the proposal are nonsense—for example, the idea that it is a lottery as to whether a High Court judge might be appointed to sit in a particular inquest. It is not a lottery; it is a matter of design. If the case required the appointment of a High Court judge as coroner, that is what would happen so that the inquest could go ahead. The Government need have no worries about that.
The advantage of appointing a High Court judge is that it would give comfort to the Government that there would be a sufficiently high level of judicial consideration of the arguments that would inevitably be in their submission to ensure that they were properly taken into account. The High Court judge provision is a sop and a comfort to the Government, so they can have no argument against it.
A great advantage of the proposal is that proceedings would be open—there would be a normal inquest in that sense. Another advantage is that there would be no delay. I heard what the hon. Member for Islington, North (Jeremy Corbyn) said—indeed I have some reason to agree that we must make sure that such cases are dealt with expeditiously—but there is nothing inherent in the proposal that would cause further delay. The right to an inquest jury is preserved, as is absolutely correct.
The most important thing is the presumption that the material necessary for finding the circumstances of death will be provided unless there are good reasons why not. If there were good reasons why not, the coroner would have the opportunity to discover them and would make available to the jury as much material as possible under the criteria.
The one difficulty is the problem that was the subject of an interchange between the right hon. and learned Member for Sleaford and North Hykeham and me about the criteria that the High Court judge would use to determine the submissions before him. We could refine the proposal to cope with that problem, although that does not for one moment suggest that the solution is imperfect. Indeed, as the hon. and learned Member for Harborough said, it is regularly done in criminal courts. All we need is accompanying protocols to make the amendment function satisfactorily.
Even at this late stage, I hope the Government will realise that the proposal is a prospective solution to their dilemma. I strongly support it and I hope other Members will do so, too. It has flaws that need further attention, but if Ministers really think that in the next Session they can present us with a coroners Bill that contains the same clauses that we are knocking out today because they are so unsatisfactory from the point of view of many Members of the House and the majority in another place, they have another thing coming.
With the leave of the House, I shall briefly respond.
I thank my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher) for his remarks. My initial remarks were deliberately wide and I hope that has helped our discussions and debates. The hon. Member for Somerton and Frome (Mr. Heath) and I have, in the past couple of years, debated a number of Bills in various Committees. I cannot always promise to deliver what he wants, but I hope his experience is that when I have said that the Government will listen to what is said, even if that does not mean that we introduce measures with which he is totally happy, there is evidence that some listening has taken place. That is the commitment that I have made and will make to various Members in private and in public as we take forward this measure.
Will the legislation that is to be introduced in the next Session appear in the form of a Bill, or will there be a period of genuine consultation, when the views—the very serious views—that have been expressed here today, for example, can be exchanged with the Minister?
Is this not an ideal example of the importance of not rushing straight into a Bill but engaging in wider consultation—not necessarily taking a huge amount of time? The views that have been expressed in the Chamber this afternoon reflect the views of other experts in the judiciary and the court system. Surely the Government would benefit from taking a few weeks before publishing their Bill in the next Session to listen and consult those who will be most involved? We have an ideal opportunity. We may not have to go back to the Green Paper and White Paper stage, but too many Bills are rushed into draft too quickly. Surely this is an example of a measure that needs consultation before being put into parliamentary draft?
I am sure that my hon. Friend’s comments have been heard. Sometimes, it is a matter not of how long the process takes, but of whether some change is made to what is proposed. Hopefully, some of what has been said here today will be taken on board. I think that I have answered the points made by my hon. Friends about the new legislation: a Bill will be introduced in the next Session, and it will be a Ministry of Justice Bill.
The fundamental difficulty with amendment No. 106, and the point of disagreement, is that inquests must be held with a jury in certain circumstances and juries are finders of fact. Accepting the Lords amendment without the provisions in part 6 would mean that for the inquest to proceed, sensitive material would have to be disclosed to the jury, which would risk its then being disclosed further. We have all tried to find a way to balance national security with the needs of families and the need for a proper system that allows those who have suffered the death of a loved one to have a sense of closure, as far as that is possible.
I have the answer to the questions put to me by the hon. and learned Member for Harborough (Mr. Garnier), which I will give him—
Now that I have found the answer, here we go. The hon. and learned Member for Harborough asked me a specific question, which no one but he understood, but it was a good point. It is not that the question was wrong, but our provision relates to inquests—a very few inquests—and does not extend to trials for any offence. Trials will proceed in accordance with the procedures for such proceedings. And that answers that question. [Laughter.]
Question put, That this House disagrees with the Lords in the said amendment:—
Lords amendment disagreed to.
Lords amendment No. 133 disagreed to.
Before Clause 22
Lords amendment: No. 3.
With this it will be convenient to discuss Lords amendment No. 15 and the Government motion to disagree thereto, the Government motion to transfer clause 33, Government amendments (a) and (b) in lieu of Lords amendment No. 15, Lords amendments Nos. 4 to 14, and Lords amendment No. 115 and Government consequential amendment (a) thereto.
I am sure that several hon. Members will wish to speak on this group of amendments, and I do not want to spend a great deal of time going through a whole series of debating points that have been well rehearsed. Suffice it to say that we disagree with Lords amendment No. 3.
As my right hon. Friend the Home Secretary said in her statement to the House on 13 October, the provisions in the Bill for 42 days’ detention were always, in our view,
“about protecting the British people…from the serious threat that we face from terrorism.”—[Official Report, 13 October 2008; Vol. 480, c. 620.]
The Government’s approach has always been to try to strike the right balance between protecting national security and safeguarding the liberty of the individual. We believe that the proposals that we put forward in the Bill are consistent with our human rights obligations. We know that when it comes to national security, our primary duty is to protect the public. Therefore, following the decision of the other place to remove from the Bill the protections that we believed should be in place to allow for the detention of terrorist suspects beyond 28 days in case of need, which we accepted, we prepared a new Bill to enable the police and prosecutors to do their work should the worst happen—should a terrorist plot overtake us and threaten our current investigatory capabilities.
Two of my constituents have been detained, allegedly on terrorist matters. I believe them to be innocent, but I will not name them for legal reasons. Would my constituents be entitled to feel reassured by what the Minister is saying, in terms of their civil liberties, or would they be right to be concerned, like me, that the changes that the Government are trying to make at this stage will make it more likely that people like them could be detained without charge for a lengthy period whether or not they are ultimately found to be innocent?
The changes that we have made have been generally welcomed. Our acceptance of the amendments made in the Lords has been widely appreciated, whatever people’s initial views. In trying to ensure that we have the capacity and capability to deal with an emergency, should it arise, the Government have introduced this short Bill. The hon. Gentleman’s constituents would be protected by the law as it stands; for their purposes, nothing that I have said should make a significant difference.
The Minister has referred to a new Bill, which I gather is being drafted in anticipation of some form of crisis. There is no particular reason why we should not debate it in draft at some stage; perhaps the Home Affairs Committee would like to do so. In any event, would it not be sensible to publish it when it has been drafted so that we can all consider it and be well prepared should it be introduced for enactment?
I will pass the right hon. and learned Gentleman my own copy when we have finished this debate. The Counter-Terrorism (Temporary Provisions) Bill is available in the Library. [Interruption.] Presumably it is in the Vote Office as well. My understanding is that it is definitely in the Library, and I will ensure that it is also in the Vote Office.
I am grateful to my hon. Friend for allowing me to intervene. I have had exchanges with other Ministers on this topic, but I think that this is my first one with him. In order that there should be no doubt about the issue, the Lords amendment says that
“nothing in this Act allows the Secretary of State to extend the maximum period of pre-charge detention beyond 28 days.”
Is not that the Government’s position? If they come to the view that they want to try again for 42 days, will they not use the new Bill that has been published, as he just stated?
My understanding is that that amendment was tabled to generate debate, not in the belief that it would be passed. It would ensure that nothing in the Bill allows the Secretary of State to extend the maximum period of pre-charge detention when there is nothing in the Bill that allows the Secretary of State to do that. That is why we published this new Bill, which we would seek to use should it be necessary and appropriate to do so.
This matter is an important consideration for us all. Will the Minister assure the House that the prospective Bill will be brought before the House at the earliest possible opportunity so that we can examine it legislatively to see whether it meets the tests that the current Bill failed in the Lords?
All I can say to the hon. Gentleman is that the proposed Bill is available for him to scrutinise. He will be able to raise questions about it and provoke debate in the normal way. The Bill is there should the Government believe it necessary to introduce it—[Interruption.] I understand the hon. Gentleman’s points, but if I could just finish. The Bill would allow the Director of Public Prosecutions to apply to the courts to do certain things. The hon. Gentleman wants a debate in Parliament on that Bill, but we will not have that debate until it is necessary to do so.
Order. I am anxious not to stifle debate, and I can see how closely these matters are linked, but we ought to deal with one Bill at a time.
The point made by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) was made by my hon. Friend the Member for Walsall, North (Mr. Winnick) when the Home Secretary came before the Select Committee recently, and it concerns the exact moment when the new Bill would be triggered. My hon. Friend asked the Home Secretary whether that would be in the middle of a terrorist outrage. At what time are the provisions of the new Bill likely to be triggered? That is the only issue I am concerned about.
Order. I trust that the Minister heard my earlier remarks and will bear them in mind.
To try to be fair to my right hon. Friend the Member for Leicester, East (Keith Vaz), the Chair of the Select Committee on Home Affairs, we would introduce the new Bill in an emergency, at a time when it may be considered appropriate. Of course, it would be a matter for this House and the other place to pass it, if they deemed it appropriate to do so.
The new Bill is a short, one-off Bill that would enable the Director of Public Prosecutions to apply to the courts to detain a suspected terrorist for up to a maximum of 42 days, in place of the current 28 days. We cannot say categorically when it will be needed—a point that hon. Members have asked about—as whatever the plot, we will always try to bring charges within 28 days. However, if there is a major bomb plot next week, or a dirty bomb, or another 9/11 is planned or executed, and more than 28 days is needed to investigate that matter with a view to bringing those responsible to justice, we will bring the Bill before the House. It will then be a matter for the House to decide upon.
The Minister clearly knows that Sir Ken Macdonald, the out-going Director of Public Prosecutions, has gone on record as believing that the administration of the threshold test and the successful conviction rate for terrorist offences meant that any extension of pre-charge detention was unnecessary. Is not it bizarre for the Government to place in the Library a Bill that proposes powers for the Director of Public Prosecutions that he has publicly said that he does not want?
I feel as if I cannot win. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) asked where the Bill was that we might introduce, and is happy that it is in the Vote Office and in the Library. The hon. Member for Eastleigh (Chris Huhne) has criticised me for preparing a Bill that we might use.
No. Before the right hon. Gentleman attempts to come to my rescue, let me say that I stand here because sometimes one makes judgments. I believe that the best way forward is to have a draft Bill, which hon. Members can scrutinise in the Library and the Vote Office, and to introduce it when appropriate.
As someone who has always opposed an extension beyond 28 days and was pretty unhappy about 28 days, I commend the Government for preparing a Bill. However, would not it be valuable for the Government to hear the House’s views about the measure in the quietude outside the time when it might have to be used, so that they could ensure that it dealt with the concerns of the majority of hon. Members?
When things have calmed down and the Bill that we are considering has passed through all its stages, we might, perhaps three or four months down the road, need to think about how we discuss the other measure.
Instead of reintroducing the proposals for a reserve power in this House, the Government have taken action to have those protections ready to be presented to Parliament should they be needed. I therefore ask the House to agree to Lords amendments Nos. 4 to 14.
I ask hon. Members to agree to amendment No. 115 and note the minor consequential amendment that is required to tidy up the Bill after the removal of schedule 2.
The Minister invites us to disagree to amendment No. 3 because it is unnecessary. I have examined the Bill and I cannot see any residual power that would enable the Government to extend pre-charge detention beyond 28 days. However, will he give us an undertaking that no power is concealed in the Bill, which can be exercised by statutory instrument, that would enable the Government to extend pre-charge detention beyond 28 days?
There is no provision in the Bill for extending the maximum period of pre-charge detention beyond 28 days. That is why we disagree with amendment No. 3. I hope that that reassures the right hon. and learned Gentleman. If he has looked through the measure and found no such provision, it is not there. I hope that that puts in Hansard the reassurance that he would like.
Amendment No. 15 was clause 33 when the Bill left this House. The provision was added during the Commons Committee stage and contained minor Government amendments to the pre-charge detention scheme in schedule 8 to the Terrorism Act 2000 that were unrelated to the reserve power. However, it was inadvertently removed during a debate in the other place, despite agreement that it should remain in the Bill. The Government amendments made minor changes to schedule 8 to the 2000 Act, correcting an earlier omission of a consequential amendment and removing the requirement for the Lord Chief Justice to consult the Lord Chancellor before designating a magistrate to hear pre-charge detention extension applications for terrorist suspects for up to 14 days. I therefore ask the House to disagree to the Lords amendment, but offer amendments in lieu, which will place the clause in a more appropriate place and add a minor consequential amendment to that part of the measure.
As I have said, amendment No. 3 was an Opposition amendment to facilitate the debate on pre-charge detention. I hope that, with those reassurances, hon. Members will agree to disagree to the amendment.
The Minister has ended up facing both ways, in that he assured my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) that the Government had no intention in this Bill of bringing back detention for longer than 28 days. However, the Minister also said that he had produced a Bill—I am happy to confirm for my right hon. and learned Friend that it exists in physical form and is also available online and in the Library—which thus tells us that the Government have every intention of bringing the proposal back, if they can get away with it. That is puzzling, frankly, as well as disturbing.
The draft Bill is extremely relevant to the motion to disagree with the Lords in their amendment No. 3, which the Minister rightly said was a declaratory amendment designed simply to facilitate the House of Lords and make it clear what it was debating. I had hoped that all the amendments in the group with which the Government will move to agree would mean the last appearance of one of the Government’s great failures of this Parliament. The attempt to persuade Parliament to damage essential liberties managed to inspire an enormously wide coalition, which included all Opposition parties, many Labour Members who care about freedom, senior police officers, both serving and retired, the Director of Public Prosecutions, as the hon. Member for Eastleigh (Chris Huhne) mentioned, the former head of the security services, the former Labour Lord Chancellor and many more.
All those people considered the issue and did what we all need to do in such circumstances, which is to weigh up the security argument as well as the argument about basic freedoms. The reason we are discussing the very desirable Lords amendments in the group today is that the Government’s proposal to extend pre-charge detention from 28 to 42 days failed on three significant grounds: practicability, necessity and desirability. The proposal failed on all three, in that it was unnecessary, undesirable and, in both its original form and the form in which it has returned in the draft Bill, unworkable.
My hon. Friend admitted that he was confused about why we are in this position. Is he also confused about why the Government will not agree to have a gentle debate on the draft Bill in a tranquil moment, so that we can at least ensure that if that Bill were to be introduced in an emergency, it would be the best Bill that could be produced in those circumstances?
My right hon. Friend makes an extremely good point, and one that I was about to come to. The key point in this group of amendments is how they intersect with the draft Bill and what we should do about it. As we decide whether to remove the stark, declaratory new clause proposed by Lords amendment No. 3, it is important for us to consider both the fact that the Government have produced the draft temporary provisions Bill and the way they wish Parliament to address it—or, as it would seem, not to address it—in the current period of calm.
Like many in all parts of the House, we on the Conservative Benches have made it clear all along that we would look at any evidence that supported any extension of pre-charge detention. Everything that we have said and argued throughout this long process has been predicated on the basis that if Ministers came forward with any credible evidence that persuaded us there should be an extension of pre-charge detention, we would look at it seriously and take a view on it. I am sure that that is true of the Home Affairs Committee and all the other bodies that have been weighing up that difficult balance.
As we stand here today at the last stage of this Bill’s legislative scrutiny, the truth is that at no stage has any credible evidence been produced to support the Home Secretary’s contention that extending the 28-day limit was necessary. The fact that such a wide coalition—of experts as well as Opposition parties—has assembled against the Government is very clear evidence that they never had a case for extending beyond 28 days. It is a tribute to their lordships that they not only defeated the proposal, but did so with the largest majority on a whipped vote that anyone in the other place can remember. It was not just defeated, but knocked out of court altogether.
Those who are in favour of reforming the House of Lords should acknowledge that, in this instance, it did its job superbly and could not have done it better—not least because the size of its majority has dominated the terms of the debate in this House, too. The majority in the other place was so big that even this Government did not have the nerve to try to ram the proposal through under the Parliament Act.
On the substantial issue, there should be no difference between Front Benchers because, wherever possible, we strive for agreement on security matters. The Home Secretary has said all along that she wants a consensual solution, and so do we, as it goes without saying that there is no division on fighting terrorism; it is the method of doing so that has divided us during the Bill’s passage, as this group of amendments shows.
Let me move on to the temporary provisions Bill. The Minister will already have been made aware from comments on both sides of the House that we regard this as a deeply unsatisfactory process. As he said, the Bill is in the Library, we can all read it, we can all think about and discuss it, but the one thing we cannot do is to undertake any of that in an organised way. When pre-legislative scrutiny was introduced into our procedures, it was a very good and useful reform. Surely if formal pre-legislative scrutiny should be used at all, it should be in respect of a Bill that is already published and that the Government know they would dream of introducing only in an extreme emergency—at a point when people’s emotions would be running extremely high. As it happens, we have the chance to discuss the Bill at the moment in a calm and reflective atmosphere. I cannot think of conditions in which pre-legislative scrutiny would be more appropriate.
Order. I am in some difficulty, as the hon. Gentleman’s suggestions would be more appropriate for another day. Reference to the Bill is appropriate, but if the hon. Gentleman continues to pursue this line of argument much further, I shall have to stop him. Does the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) wish to intervene?
I do not think that my comment will offend against what you said, Mr. Deputy Speaker. I simply wanted to make the point that if the Bill is introduced in an emergency, the probability is that it will be done in one day and the House will not have a chance to amend it.
Order. I do not want to keep intervening, but that matter would also be more appropriate for another occasion.
The Government’s motion to disagree with their lordships needs to be seen from the perspective of their ultimate intention. The Minister has assured us that there are no powers in the Bill to bring back pre-charge detention beyond 28 days, yet we know from the draft Bill that the Government wish to keep that power in reserve. I hope that the House will take that into account when it hears the Minister asking us to agree to disagree with their lordships on this matter. His case is materially weakened by the existence and content of the draft Bill and by the fact that we are not allowed to scrutinise it properly. I am sure that all Members will bear that in mind when deciding whether to give the Government the benefit of the doubt on this group of amendments.
I hope that there will not be a vote on Lords amendment No. 3, but if there is, I will not vote with the Opposition. I may not vote with the Government either, just in case that is used in evidence against me at some later stage. I had to be very careful about how I voted in the Home Affairs Committee. As my right hon. Friend the Member for Leicester, East (Keith Vaz) is aware, I voted against the measure. Had I not done so, that would certainly have been used as evidence against my point of view on Second Reading.
In the end, as we know, the 42-day proposal was defeated in the House of Lords and carried by a majority of nine in the House of Commons. I am sure it was simply a coincidence that nine happened to be the number of Democratic Unionists who were present and voted on that occasion, but in any event the majority was just nine. Obviously a fair number of members of my own party took the same view that it was necessary to detain people for 42 days before charging them.
There is no doubt that the Government have not abandoned their wish to introduce the 42 days’ provision. They have made absolutely no secret of that. The Home Secretary was quite frank when she came along on 13 October, after the defeat of the measure in the House of Lords. She did not suggest for a moment that the Government had changed their mind.
The Government are, of course, perfectly entitled to change their mind, but the fact that I strongly disagree with them on this issue does not mean that they have to do so. They have stuck to their opinion: they still believe that detaining people for 42 days before charging them is justified. That is the difference of opinion between the Government and those of us who take quite another point of view.
Many people, including the outgoing Director of Public Prosecutions, have said that they see no necessity for people to be detained for more than 28 days. I reminded the Home Secretary in the Home Affairs Committee last week that not one but two former directors general of MI5 were opposed to it. She was a bit surprised, and asked me to name the second; I replied that it was Stella Rimington. It is obvious that quite a large body of people who know all about the dangers of terrorism are not persuaded by any means that it is necessary—at least at this stage—to detain people for longer than 28 days. It should also be borne in mind that three years ago the House doubled the period of pre-charge detention from 14 days to 28.
The hon. Gentleman is advancing a powerful argument. Given the Government’s determination to see this through and try to secure the 42-day measure, and given the total opposition to which the hon. Gentleman rightly refers, would it not provide added security for the measure to be included in the Bill, at least to ensure that it is stopped in its tracks?
Obviously the hon. Gentleman and I do not disagree on the issue of pre-charge detention, but my hon. Friend the Minister made it perfectly clear in response to an intervention that the measure we are discussing cannot be used to extend pre-charge detention beyond 28 days. If there were some mechanism allowing it to be so used, I would be inclined to vote, and indeed to press for a vote; but as the Minister has said what he has said and it is in Hansard, I see no need to put to the vote an amendment that would without doubt be defeated. Indeed, I wonder from a tactical point of view whether voting for it would serve the interests of those of us who see no justification for an extension beyond 28 days. However, this is not my amendment, and it is up to the Opposition to decide what to do.
I do not want to go against your wishes with regard to the other Bill, Mr. Deputy Speaker. It has been published, as we know. Last Thursday, along with other members of the Home Affairs Committee, I pressed the Home Secretary on the issue. Whether we want it to be debated at some stage is another matter, although I should like to see it completely dropped.
I do not believe that 28 days should be set in concrete. I have said before, and I repeat today, that if there is compelling evidence that it is absolutely essential for the security of our country that we should go beyond 28 days, I will vote for it—others may not, but I will. However, there is no such evidence, and all the authorities that have been mentioned have also made it clear that there is no justification for it. I would like the extension provision to be dropped, but as there is no mechanism in the measure before us for extending the period, I urge that the amendment not be pressed to a Division.
The Liberal Democrats are very pleased that the Government have decided not at this time to press for any further extension of the period of detention without charge. We are not in any way being softer on terrorism or less enthusiastic about bringing terrorists to justice than any other party, but there is a fundamental disagreement about the correct and most effective way of tackling this situation. As the hon. Member for Walsall, North (Mr. Winnick) pointed out, this House passed this measure by only nine votes and nearly rumbled the Government in their arguments on the extension of the period of detention without charge, and the House of Lords then comprehensively did so, with a substantial majority voting against. There is no doubt that over the whole period that we have been considering this matter the arguments of the Government—of Ministers and the Prime Minister—have been comprehensively lost. I wish now to summarise why it is appropriate to press these amendments withdrawing the relevant provisions in the Bill to a vote.
This country already has a period of detention without charge of 28 days. Ministers have in the past suggested that international comparisons are always difficult, but international comparisons between our country as a common law jurisdiction and other common law jurisdictions are not difficult. We have a longer period of detention without charge than any other common law jurisdiction. It is, in fact, more than double the length of the next longest period of detention without charge of such a country, which is Australia’s period of 12 days. Even in Australia, the provisions for extending the period to 12 days specifically introduce periods of cooling off in between the interviewing of suspects.
As I have pointed out, Sir Ken Macdonald, the outgoing Director of Public Prosecutions, clearly said that he did not need these powers precisely because conviction rates on terrorism are running substantially ahead of the Crown Prosecution Service’s general success rate in serious crime. That shows that there is the necessary flexibility for the CPS to bring charges; it can bring charges against people, and it is unnecessary to hold them for prolonged periods.
What is, perhaps, most important is that this country has always attempted to respect the principle of people being innocent until proven guilty, and the people who are most likely to be caught up in a prolonged period of detention without charge are the innocent, precisely because they are likely to resist and to fail to give any evidence. As a result, we have discovered that the majority of those who have been held right up to, or very near, the end of the period of 28 days have been totally innocent—innocent in the sense that there has been no desire to conduct further investigations or, as we know from what the Home Office has said, to take any further action taken against them of the sort that would be available under other provisions.
There is a real risk that if we were to go down the road of extending detention without charge from 28 days in the draft Bill that the Home Secretary has placed in the Library, we would alienate a very substantial section of the ethnic minorities whom we need for our intelligence leads to find terrorists. Indeed, we also need them to come to court to give evidence as witnesses. As we know, the parallels are not exact, but there is no doubt that when the House went over the top and introduced disproportionate powers to tackle Irish terrorism in Ulster—internment—it had a dramatically counter-productive effect on the minority Catholic community’s willingness to give evidence and come forward as witnesses.
I entirely agree that 90 days would have been even worse. I must say that I have never understood exactly where the figure of 42 came from. Why was it 42 and not 40 or 44? I suspect that a secret fan of the “The Hitchhiker’s Guide to the Galaxy” in the Home Office realised that the answer to life, the universe and everything is always 42. There does not seem to be any other basis for proceeding on 42 days.
It worries us that there is a Bill in the Library that could be introduced when the Government think that our rational faculties, as a Chamber, were completely suspended. The Government have made it clear that they would proceed with the Bill only in the wake of another terrorist outrage, when, understandably, there would be considerable moral panic in the newspapers, including some of the tabloids.
We know from history that some of the worst legislation that we have ever committed to the statute book was passed on precisely such occasions, when there was moral panic—for example, the Dangerous Dogs Act 1991 and the Official Secrets Act 1920, which was passed following a moral panic under the coalition Government in the first world war.