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Coroners and Justice Bill

Volume 499: debated on Thursday 12 November 2009

Consideration of Lords message

Schedule 1

Duty or power to suspend or resume investigations

With this, it will be convenient to take the Government motion to agree with Lords amendment 1B.

When this matter was last before the House, there was an extensive debate about whether the Bill contained sufficient safeguards in respect of converting an inquest process, which would be open and with a jury, into an inquiry process, part of which might have to take place in secret to allow intercept evidence to be used. There has been a lengthy debate while the matter has gone through the House, but the Secretary of State and Lord Chancellor knows that there was widespread unease about the provisions, and the vote that was eventually held was extremely close.

At the outset, I want to say that I am grateful that the Secretary of State took on board the concerns that were being expressed. When the matter went back to the other place, he tabled an amendment that, although far from perfect, went a long way towards solving the problem that was causing concern. The amendment proposed that the Lord Chief Justice must indicate to the Lord Chancellor his approval for moving to an inquiry following the appointment of the judge who is to carry it out. My noble Friends in the other place took the view that the correct position was to abstain on the subsequent vote.

I shall outline the potential problems with that amendment. First, as the Secretary of State knows, the view that I have expressed consistently and which I have discussed with him is that, in an ideal world, it would be better if the process by which one moved from an inquest to an inquiry were subject to full judicial scrutiny. In addition, I believe that the Secretary of State should have to apply to the court for approval, as that would allow full scrutiny to take place. That has not happened, but I do not think that there is much point in going over old ground as to why. I spent part of yesterday evening looking for a way to get around the problem, such as tabling a provision that would enable a full application process to take place, but the advice that I received was that that would be impossible at this late stage of the Bill.

The hon. and learned Gentleman has come up with an interesting formulation, but does he agree that there are no safeguards on the face of the Bill? Last time, the debate was focused almost entirely on the question of intercept. Would it not have been better to include a provision in the Bill that secret inquiries could be held only when intercept was the only matter at issue?

The hon. Gentleman makes a powerful and important point. Given the problems, it could be that intercept might be the only possible trigger for such an inquiry, but I take his point. When I look back on the Bill’s passage through the House, there have been difficulties in focusing on the key ways to resolve this issue. As I have told the Secretary of State, I have always had some sympathy for the Government’s difficulty in this regard. We have at times been in danger of saying that we will never have anything other than an open inquest, but that would be to miss the Government’s difficulty, especially in light of the Chilcot report

The hon. Member for Hendon (Mr. Dismore) has raised a good point, but the beauty of the amendment that we are considering is that the Lord Chief Justice would be in a position to say that he would accept a transfer only when intercept evidence was involved.

The hon. Gentleman has anticipated me by a few sentences, and I shall deal with that point in a moment.

I wonder whether my hon. and learned Friend can give me an assurance about what would happen in the event of a Conservative Government taking office after the next election. At some point, the Chilcot inquiry will produce a proposal to allow intercept to be used in court. If it transpires that intercept is the only issue that causes the Government to require a secret inquiry of some sort or another, will he give me an undertaking that we would change the law to remove unnecessary secret inquiries?

My right hon. Friend and I have worked on this together, and he knows that the Opposition have long been consistent in our desire to see intercept evidence being available to prosecute prisoners and in other settings, including inquests. That remains our commitment, and that is why my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) sits on the Chilcot committee. I cannot predict what the outcome of that committee will be, but the Conservative party will retain its commitment to try and bring this desirable end about.

It is unfortunate in the extreme if people who could be prosecuted are not prosecuted because intercept evidence cannot be used. Equally, it is extremely unfortunate if intercept evidence that could help to clarify matters in an inquest cannot be used for the same reason. Therefore, I can give my right hon. Friend the Member for Haltemprice and Howden (David Davis) the assurance that our commitment in that regard remains as strong as ever, but obviously we will have to listen to what the Chilcot committee says.

Will my hon. and learned Friend explain, in light of his amendment, the grounds on which the Lord Chief Justice would exercise his discretion to indicate approval or not? The Bill does not seem to contain anything solid that might tell the Lord Chief Justice how to approach that.

My hon. Friend is right, and that is the next point that I want to address.

The Government came up with their amendment in the other place, but my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) is right that it proposes a full judicial scrutiny process, with a Minister making an application to a court in a hearing at which interested parties can make representations. I would have preferred that. As I said earlier, if I had had the opportunity to table an amendment to that effect yesterday evening, I would have done so, but I must accept that it is now impossible procedurally to achieve that desirable end. Indeed, that is what the Secretary of State told me, and I do not think that he was trying to pull the wool over my eyes.

Essentially, amendment 1B is a fall-back position, and my hon. Friend the Member for North-East Hertfordshire is right that it raises questions. It seems to me that, in effect, it asks the Lord Chief Justice to take an administrative rather than a judicial decision—based, I suppose, on his independence and sagacity—because the Lord Chancellor has to get his agreement to a transfer from inquest to inquiry.

In the other place, Lord Mackay of Clashfern raised that concern specifically. He said:

“I assume—I hope this is correct—that the Government consulted the Lord Chief Justice when they put forward this proposal, so that he knows about it and is willing to undertake this extremely important judgment at the stage when it is supposed to be made.”—[Official Report, House of Lords, 11 November 2009; Vol. 714, c. 830.]

He also pointed out that if the Lord Chief Justice were to decline to move from inquest to inquiry it would be, he assumed, the end of the matter.

In reply, Lord Bach made it clear that the Lord Chief Justice was aware of the proposal and—I infer—has not expressed the view that he could not undertake that role. At the same time, it is also clear that he would have the final say in the matter. Quite a lot of the debate in the other place was taken up with Lord Bach seeking to provide reassurance to the noble Lords that the procedure being proposed genuinely involved giving the Lord Chief Justice an effective veto over whether the shift would take place.

For the reasons that I have already given, I hope that we are not putting on the Lord Chief Justice a burden that we should not place on him. I have a residual anxiety about that. Secondly, I had anxieties when the proposal went to the other place that the wording was such that the Government amendment could be construed as amounting to no more than an ability to say, “You can’t have such a judge”, and that another name would be put up automatically rather than giving the Lord Chief Justice a genuine veto over the process. Such was the extent of my anxiety that while the proposal was in the other place, I sought at the last minute to change the wording from “that judge” to “a judge”. The Government’s response was that that was not necessary. A series of assurances were given during the debate, which I am sure that the Secretary of State will repeat, to the effect that what was intended was a genuine judicial lock through the Lord Chief Justice.

I repeat that I am grateful that the Secretary of State has listened. Notwithstanding that, however, I hope that he will not take it amiss that I have tabled a further amendment. The reason for doing so was that if the Government’s intention is correct and their drafting is right, the further amendment cannot be regarded as anything other than affirming their amendment—it is innocuous in intention; it will not wreck or damage the Government’s proposal; and it will not cause the Government any further problem.

Our amendment (a) makes it clear that the approval is not just about the start of the judicial process for the inquiry and the appointment of the judge, but that the Lord Chief Justice also has to indicate approval for the Lord Chancellor to request the coroner to suspend the investigation. As the hon. Member for Somerton and Frome (Mr. Heath) rightly said a moment ago, that provides slightly wider discretion in the consideration of what the issues might be and—to pick up the point made by the hon. Member for Hendon (Mr. Dismore)—ensures that the grounds on which we move from inquest to inquiry are very narrow.

I am sorry that the amendment was tabled at such a late stage, but we are in this place to do our job right to the end. For the reasons that I have set out, I think the amendment is a real improvement that I hope the Government can accept.

Does my hon. and learned Friend think that the consequence of his amendment (a) would be that more information will have to be provided to the Lord Chief Justice than otherwise? Clearly, in deciding the identity and approving the judge, one set of criteria would be important—namely, that the appointment is suitable—but whether the suspension should occur is a slightly wider question. Does my hon. and learned Friend think his proposal would affect the material on which the decision would be made?

Again, my hon. Friend has made a good point. One of the deficiencies of the system that the Government have decided to adopt—although at this late stage, it is the best that we shall get—is that the nature of the communications that would take place between the Lord Chancellor and the Lord Chief Justice is not clear. Lord Bach tried to set out something of the procedure, but it is clear that to a degree it would be marked by exchange of letters and, possibly, a meeting. He made it clear that the exchange of letters is unlikely subsequently to be made public, which is something that I have to accept in view of the system that has been set up. It thus puts a considerable burden on the Lord Chief Justice. However, mindful of the fact that I have been given a very clear indication that he is willing to take that burden on board, I think that to provide the public with some degree of reassurance that the process will not be hijacked by politicians, we have to accept that it is the best we can get.

I agree with my hon. Friend on a move to a much more formalised application system. Indeed, were I ever to succeed in the private Member’s Bill ballot, that might be a fertile measure to bring forward, particularly in view of the Secretary of State’s agreement that such a system would be a more desirable way to proceed. On the face of it, the proposal appears to command approval across the House, which is the first precondition for getting a private Member’s Bill on to the statute book. My hon. Friend has made a very important point.

The proposal is not perfect—at the end of the day there is no perfection in any of these things—and I sympathise with the Government, because I recognise that they have a real and not a manufactured problem. I am sorry that we have reached this stage of the Bill without doing better, but at this stage I believe that the Government amendment, which was offered and passed in the other place, is a considerable improvement. I further believe that my amendment to that amendment is just an additional safeguard and reassurance. For that reason, I very much hope that the Secretary of State will accept it. We could then finish the Bill on a note of consensus, which we have frequently striven to achieve.

I am a little surprised to be called ahead of the Lord Chancellor, but I am grateful for the opportunity to say a few words.

At this stage of a Bill, it worries me that expediency and pragmatism often take over from principle and legal accuracy, and we end up with statutes that are often a process of negotiation rather than what any party to the negotiation would like in the Bill. I am concerned that that is precisely what is happening with this Bill. Later we shall reach a point where the Government, having marched their troops to the top of the hill, will proceed to march them down again—yet again, which I regret. However, despite the fact that in a moment I shall be supporting the hon. and learned Member for Beaconsfield (Mr. Grieve) to indicate that I think that, at least in this House, he is doing something valuable, I have to say that I regret entirely the fact that after a very close vote in this House on the key issue, on the basis of the words in lieu moved by the hon. Member for Hendon (Mr. Dismore), the hon. and learned Gentleman’s colleagues in the other place felt that they could contribute nothing whatsoever to the debate. Indeed, Lord Henley said:

“For us, to oppose it at this stage or to support it would not be the right way”.—[Official Report, House of Lords, 11 November 2009; Vol. 714, c. 829.]

What sort of loyal Opposition cannot even decide whether they support or oppose a key part of a Bill on which there was a close Division in this Chamber?

As the hon. Gentleman is pleading—improbably—the consistency of the Liberal Democrat party, can he explain how last week in the other place, Baroness Miller managed to get through a comprehensive set of proposals that would have allowed intercept evidence to be adduced in coroners’ inquests? That was far more significant than the amendment proposed by my hon. Friend the Member for Hendon (Mr. Dismore). In the event, that amendment would have been of little significance although it would have made for defective legislation. The Liberal Democrats marched their troops up the hill in the other place to get those proposals through, yet in this place they sat on their hands and by doing so agreed to the Government’s position, and that of the Opposition, that the amendments were barking mad and should not go through. Can he explain that inconsistency?

To say that we sat on our hands when we supported in a very close Division the proposals of the hon. Member for Hendon seems a most extraordinary position for the Lord Chancellor to take, but rather than pursue an utterly sterile argument—

And I am perfectly happy to continue to raise it, except that it is not the matter before us today, but if we had secured a majority in the House that we so nearly secured in support of the proposal of the hon. Member for Hendon, I would have considered that a satisfactory outcome. If we had succeeded in having the support of the Conservative party in another place for the amendments that my noble Friend tabled yesterday, we might have had a more satisfactory outcome. Neither circumstance applied because of the pragmatism and expediency that so often characterises the latter stages of a Bill.

I do not wish to get involved in a spat with the hon. Gentleman, but when we debated the matter on the last occasion, I could not have made clearer my reservations about the amendments that we were to vote on. I made it clear that the reason why we would support those amendments was that we wanted to prolong the debate to try to resolve the issue, although I recognise that those amendments raised as many questions as they solved.

Very well, let us accept what the hon. and learned Gentleman has said, and let us move on to the substance of the current proposal. I do not think that Lords amendment 1B quite counts as Government plan B—it is probably plan C or D at this stage—but it is the alternative formulation that was presented to another place. Notwithstanding my reservations about the whole process, we must consider the proposal’s merits. It will introduce a lock of sorts, but it is a very deficient lock, as it will provide only one circumstance in which the Lord Chief Justice can intervene, which is in the choice of the judge who will officiate. That lock seems inadequate, because it does not allow for the circumstances in which the Executive have chosen to put this matter into the hands of a secret inquiry to be considered by the judiciary. If that route were followed, like the hon. and learned Gentleman, I would prefer a proper process of application. That is not what is proposed, but nor is it proposed that the Lord Chief Justice will have at his disposal any of the reasoning behind the transfer in any case. His decision will be based simply on, as was described earlier, an administrative matter of whom the officiating judicial official should be.

Does the hon. Gentleman think that there will be a full lock in the sense that the Lord Chief Justice could continue to refuse to accept the appointment of any judge—in effect, refusing one after another—thus dealing with the point made by my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve)?

Order. The hon. Member for Somerton and Frome (Mr. Heath) has been extremely brief so far in his remarks—this is in no way a criticism—but I am conscious that some Back-Bench Members want not merely to intervene but perhaps to make speeches, if there is time. We have until 1 o’clock to consider this matter. The Lord Chancellor’s views will be sought shortly, and I hope that Front-Bench Members can bear in mind that consideration.

I certainly will, Mr. Speaker. I often accept interventions in order to allow colleagues to get their points on record.

Let me be very brief in response to the hon. Gentleman’s intervention. Hypothetically, what he suggests is possible. [Interruption] The Lord Chancellor says from a sedentary position that it is what would happen, but it is a very unsatisfactory position. If the Lord Chief Justice objects in principle to the transfer, to do so by means of effectively vetoing the judge proposed as the supervising judge does not seem a satisfactory mechanism. That is why the hon. and learned Gentleman’s proposal is a good one, because it would provide not entirely for an application to the Lord Chief Justice, but at least for an explanation to be made to him. In effect, the Lord Chief Justice would be given residuary power to intervene, if he believed that the Executive were abusing their position. The key issue is whether it is right for the Executive to determine that matters in respect of a death of a person as the result of the agents of the Executive should be heard not in a coroner’s court but in an inquiry system held in secret. We must not forget that basic principle while considering the complexities of process.

The hon. and learned Gentleman’s proposal would at least provide an additional safeguard. That is why I will support it today, and I hope that the Lord Chancellor will accept amendment (a) to finish the job. The proposals have been developed quite rapidly. I note that Lord Bach said that the Lord Chancellor was on the phone or communicating in some way with the Lord Chief Justice yesterday morning before the debate in another place. I hope that the Lord Chancellor will accept amendment (a), that it will be passed by the House and that it will be accepted by his colleagues in the other place, and therefore no further time need be lost.

I will attempt to be as brief as I can, Mr. Speaker, because other hon. Members want to take part not only in this debate but in the following one.

I am grateful to the hon. and learned Member for Beaconsfield (Mr. Grieve) for what he said about trying to adopt a constructive approach—I am at risk of complimenting him—and I accept that he has tried to do so, too. Most hon. Members accepted that we had a problem that had to be dealt with, and I assumed from the fact that the Liberal Democrats agreed with every other party in the House that they in this House also accepted that we had a problem that could not be dealt with by a normal inquest with a jury; otherwise, they would have voted for Baroness Miller’s amendments, but they did not—they agreed to them, as did the rest of the House. It is very important that no myths are developed.

On the hon. and learned Gentleman’s central point, yes, in my judgment as well as his, it would have been better if we could have developed a bespoke process by which the Secretary of State had to make an initial decision and go to court to get approval for it. There would have been hearings by both parties. Not only is that my position, but I developed it and it appeared in clause 11—this has been a bit like a frustration dream in which we think that we have an answer, but someone comes up with another objection—and I thought that that squared the circle. The objection, which I understand, was that that would compromise the integrity of inquests and therefore that we should go down the inquiry route. Frankly, it would not be possible in the context of the Inquiries Act 2005 to deliver in the same time the same kind of bespoke process.

The hon. Member for Somerton and Frome (Mr. Heath) might, however, wish to take note of the fact that there are two ways—one is inherent in the administration of justice, the second is embedded in the Bill—in which the courts will be able to have what amounts to the final say over the Secretary of State’s decision to make use of an inquiry under the 2005 Act for the purpose of an investigation into a death that requires an article 2 complaint investigation.

The first way is by judicial review. The Secretary of State’s decision would be judicially reviewable. We have discussed that before under clause 11. It would not be as satisfactory as if we had a bespoke process whereby the Secretary of State had to go to court, but judicial review is widely used and would be available. During a judicial review, the Secretary of State would have to show the administrative court why he or she thought it necessary to exercise his or her discretion to go down the inquiry route, rather than the accepted and normal route of an inquest with a jury. I am happy to put that on the record, so that it can be used in any future judicial review. I understand the suspicions—of course I do—and I have made it clear that I am no more comfortable with the principle than are others. The fact of the matter is that the whole system, including the Secretary of State, is doing its very best to lean over backwards to ensure that a normal inquest with a jury is held in every possible circumstance. That was why one was held in the de Menezes case, notwithstanding the earlier concerns that it might not be possible to do so.

The second safeguard is what has been written into the Bill. I hope that the hon. and learned Gentleman will not mind me disclosing the fact that, when we discussed the matter on Monday, he proposed an amendment that would have required the consent of the Lord Chief Justice. I accepted its purpose. I asked for it to be put in a proper form, and it duly was. That comes down to exactly the same point. It was put before the other place, and agreed there, that the third limb of the trigger sub-paragraph should be that the Lord Chief Justice must indicate

“approval to the Lord Chancellor, for the purposes of this paragraph, of the appointment of that judge.”

I ask the hon. and learned Gentleman not to press amendment (a) to a Division, and point out that the amendment is unnecessary. I say this in the politest possible way: we would be wasting the time of this House and the other place if he pressed it to a Division and it was agreed to. His purpose is entirely covered by proposed new sub-paragraph (1)(c).

I was asked whether I had consulted the Lord Chief Justice on the subject; I have done so. It is a very important part of the relationship between the Lord Chancellor and the senior judiciary that further details are not given; it is for the Lord Chancellor to speak for himself. However, I have consulted the Lord Chief Justice, and it would have been extraordinary if I had not done so.

Let me help the hon. Member for North-East Hertfordshire (Mr. Heald). Proposed new sub-paragraph (1)(c) says

“the appointment of that judge”.

In the context of this debate, that means any judge. I have to go to the Lord Chief Justice on quite a regular basis to suggest the appointment of judges for particular purposes, sometimes judicial, sometimes quasi-judicial. If he disapproves of the purpose, he simply says, “You can’t have this judge and, Lord Chancellor, you can’t have any judge,” and that is the end of the matter. The Lord Chief Justice has a complete and absolute veto in that regard, and that is how I want it to be.

It would be useful if the Lord Chancellor put on record what I understood him to say earlier from a sedentary position—that the Lord Chief Justice could go on exercising that veto, should he so desire.

I am happy to put that on the record. The Lord Chief Justice could, and would, go on exercising that veto. In the real world, the way it works is that he would say, “Lord Chancellor, I do not accept that this is a proper purpose for a High Court judge, so I won’t nominate anybody.” If he says that, that is the end of the matter; I need to make that absolutely clear.

I plead with the hon. and learned Gentleman not to press his amendment, because if we agree to amendment (a), the matter would go to the other place, where another amendment would be passed, but that frankly detains the House and the other place quite unnecessarily. Proposed sub-paragraph (1)(c) in amendment 1B, moved by the noble Lord Bach in the other place, says that the Lord Chief Justice—[Interruption.] Might I have the attention of the hon. and learned Gentleman? The sub-paragraph says:

“the Lord Chief Justice has indicated approval to the Lord Chancellor, for the purposes of this paragraph, of the appointment of that judge.”

The paragraph in question is paragraph 3 of schedule 1. The paragraph is about suspensions pending inquiry under the 2005 Act. The hon. and learned Gentleman’s point is covered by the drafting in that paragraph, so there is absolutely a belt-and-braces approach.

In the other place, my noble Friend Lord Bach referred to the fact that I intended to consult the Lord Chief Justice on the promulgation of a protocol about the exercise of discretion—the Lord Chancellor’s discretion to ask for a judge, and the Lord Chief Justice’s discretion to agree, or otherwise, to the appointment of a judge. It might also be appropriate for such a protocol to consider the circumstances in which the Home Secretary or Defence Secretary of the day would wish to trigger an inquiry in the first place.

I should like to put on record a point relating to an issue that has not been discussed at any length in this place. Under the 2005 Act, there is provision for a Secretary of State, having appointed an inquiry, to issue directions to it, once it is running. That is because certain inquiries of a quasi-judicial nature may—without going into any detail—get out of hand, take too long, spend too much money, and end up not producing a product, and directions could be needed. An inquiry under the Bill would be not a quasi-judicial inquiry, but a judicial inquiry. I therefore accept that the issue of directions by the Secretary of State, after an appointment has been made and an inquiry established, would be inappropriate. It would be interference in a judicial process. I am happy to put that on the record. The Lord Chief Justice would, in any case, wish to take those matters into account when coming to a decision on whether to appoint a particular judge, or any other judge.

I am grateful to the Secretary of State for having put on the record so clearly the issues surrounding the protocol and the protections that he intends to put in the Bill, but he may agree that amendment (a) does no harm. Its merit is that it focuses on the issue of the suspension of the coroner’s inquiry. For that reason, I again press him to agree that there is a really good reason for agreeing to the amendment. It provides reassurance that the Lord Chief Justice will consider the full panoply of issues, and not just one discrete area. I make that point notwithstanding what I accept of the argument with which the Secretary of State is trying to reassure the House.

We all agree that the Lord Chief Justice, when deciding whether to appoint a particular judge, any other judge or no judge, will want to take into account whether he is satisfied that the normal inquest should be suspended. How else could he make a decision? My plea to the House is to bear in mind that there is no substantive difference between the two sides of the Chamber on the issue. We would waste time if amendment (a) were agreed to, because the matter would have to go to the other place and come back again. The hon. and learned Gentleman’s point is covered by amendment 1B, with which we agree—let me just make that clear. There is no point in legislating unnecessarily. That amendment already says:

“has indicated approval to the Lord Chancellor, for the purposes of this paragraph”.

The purposes of that paragraph—paragraph 3 to schedule 1 —is as clear as a pikestaff, because its heading is “Suspension pending inquiry under Inquiries Act 2005”.

I think that I have made my point. I urge the hon. and learned Gentleman to recognise that I have given him 100 per cent. reassurance about the purpose of paragraph 3. I hope that we can make the rest of this debate very short, and get on to the next issue.

The Secretary of State for Justice and Lord Chancellor has made a strong case for his view that the Lords amendment already goes far enough, but I am sorry to tell him that I still have doubts about that. The crucial thing about a coroner is that he is an independent judge who investigates and decides who a person was, whether they died, and if they did, why they died, or what they died of. That role goes back in our history to a time when this country was very troubled, and important people felt that they might be able to take the law into their own hands. It has been an important protection for our people, going back centuries.

It is clear from schedule 1 that we suspend coroners’ investigations only in rare and important circumstances. If somebody is charged with murder, the coroner’s investigation will be suspended so that there can be a fair criminal trial. There are also other limited circumstances in which that would happen. It has been a principle for a very long time that one does not suspend a coroner’s investigation except in very important circumstances. We are facing threats of terrorism, which can lead to deaths, and a war in Afghanistan, which can lead to deaths, and sometimes the circumstances of those deaths may be of embarrassment to the Government and to the powers that be. From the very beginning, therefore, the worry with the Bill has been that in those circumstances, there might be a desire for a secret process that is not as open as a coroner’s inquest. It is therefore good that we have been able to debate the issue over a period to try to reach the point where a coroner’s investigation cannot be stopped by ministerial fiat.

That concern has boiled down to the situation before us, where it is accepted that there might be an inquiry—rather than an inquest—and, therefore, a suspension, whereby the investigation might need to be taken in private. The only example that I can think of is when something like intercept evidence is involved, and I think that the hon. Member for Hendon (Mr. Dismore) takes the same view.

That brings us to the amendments. The lock, which the Lord Chancellor has proposed, is that it would be for the Lord Chancellor to decide whether to suspend the inquest and have an inquiry; a senior judge would then be appointed as chairman of the inquiry; but the Lord Chief Justice would be able to indicate that he did not want to approve the appointment of that judge. As the Justice Secretary and Lord Chancellor has said, that could mean any judge, but the solution that my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) suggests in amendment (a) is a far less cumbersome mechanism. Proposed new paragraph 1(1)(d) of schedule 1 would make it clear from the outset that the Lord Chief Justice had to give approval not just to the appointment of that judge, but to the suspension of the inquest. That is a different question.

I have said this about 15 times, but the Lord Chief Justice would not appoint that judge or any judge unless he were satisfied about the case for suspending the inquest. Why would he? He would have an absolute right to a veto under the amendment already agreed to in the other place.

The Lord Chancellor and I may have to disagree on that point, but I believe that the decision about whether to suspend the inquest is different from the decision about whether to appoint a judge. The Lord Chancellor might take the view that the suspension is proper and the Lord Chief Justice might not agree, but he might none the less agree to the appointment of the judge if he feels that that is a broadly acceptable decision.

This issue is really important, because Lords amendment 1B would amend paragraph 3(1) of schedule 1 so that it stated:

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

(b) a senior judge has been appointed under that Act”—

the Inquiries Act 2005—

“as chairman of the inquiry.”

The senior judge could not be appointed unless the Lord Chief Justice had consented. He would have an absolute lock on that, under the Lords amendment, and I promise the hon. Gentleman that that is the case.

I do not disagree with that, but what is the material on which the Lord Chief Justice will make his decision, and what will be the grounds for it? If he has to decide whether to appoint a judge to an inquiry, his view about the criteria, the material that he wants to see and so on may be different from his view if he has to second-guess and decide whether to suspend an inquest. They are not the same question. The Lord Chancellor assures me that they are the same question and all the same thing, but it does not say that anywhere. The criteria for the Lord Chief Justice to make his decision about the appointment of the judge are not set down anywhere, but the extra lock, which my hon. and learned Friend proposes, makes the matter absolutely clear.

Amendment (a) says that the Lord Chief Justice would have to approve not only the appointment of the judge, but the investigation’s suspension. They are different questions, but that amendment would cover them completely and mean that, in future, an unsatisfactory decision could not be made.

My main concern throughout this long-running debate, going right back to the counter-terrorism legislation, has been whether we will have an article 2-compliant process. I am still not entirely convinced—even with the Lords amendment and, indeed, amendment (a) from the Opposition Front-Bench team—that we will end up with an article 2-compliant process. However, I shall not go into that in more detail, because we have debated it at great length.

My first point, which I put to the hon. and learned Member for Beaconsfield (Mr. Grieve) in my intervention, is about the lack of a trigger mechanism. It would be very helpful if my right hon. Friend the Justice Secretary said that the only circumstance in which he can envisage the power being used is if an intercept question has to be resolved. That would go a long way to providing satisfaction.

The real issue is about the lack of safeguards, and, if I compare the original proposals for civil inquests with today’s proposals on judicial oversight, I am not sure that we have moved a great deal further on. My right hon. Friend says that the decision to request that a coroner suspend an inquest would be subject to judicial review, but that is a narrow test—certainly narrower than the Opposition’s proposal for, effectively, the suspension’s approval by the Lord Chief Justice.

I follow my right hon. Friend’s argument about whether proposed new paragraph 1(1)(c) of schedule 1 cross-refers with the original process, but my main concern is that we could end up in limbo: on the one hand, the Lord Chancellor would say, “We want a secret inquest”; and on the other, the Lord Chief Justice would say, “You can’t have a judge for it”. We would be left in limbo, because there would be no way of resolving that issue. The beauty of the proposal from the hon. and learned Member for Beaconsfield, however, is that it would resolve the issue, by stating that the inquest could not be suspended unless the Lord Chief Justice had approved the decision. That would represent a much broader test than the judicial review test, because the Lord Chief Justice would be able to look at all the evidence—including the secret evidence that might not be admissible in a judicial review application.

The point is that the situation would arise only when a view was taken that there could not be an article 2-compliant inquest with a jury, because of the existence of information that could not go before a jury for reasons that we have all discussed, such as the Regulation of Investigatory Powers Act 2000. There might be other circumstances in which the issue of seeking an inquiry under the Inquiries Act 2005 will arise, although, to provide a qualified assurance, I cannot completely anticipate them. The effect of the hon. and learned Gentleman’s amendment (a) would be no different from the effect of the Lords amendment. I have already explained why amendment (a) is not necessary.

I am not sure that that is right. Can my right hon. Friend absolutely assure us that if the Lord Chief Justice turns down a judge, the secret inquiry will not take place and the inquest will? If he can, that will go a long way to resolving the issue.

There will have to be an inquest. If the request is turned down and there is, therefore, no suspension, the inquest will continue in any event. There is a separate issue about whether that inquest would then be article 2-compliant, which sort of begs the original question. Of course, if the Lord Chief Justice says, “I’m not giving you a judge,” paragraph 1, as amended already, means that there will not be a suspension of the inquest—full stop. There cannot be.

Well, that is my concern, because I am not entirely convinced that the wording under the Lords amendment would achieve that. We would end up in limbo: on the one hand, the Lord Chancellor would say, “Secret inquiry”; on the other hand, the Lord Chief Justice would say, “You can’t have a judge.” We would end up exactly where we are with the Azelle Rodney case—four years on and no inquiry into it.

My right hon. Friend knows that when we last debated the issue, he won the Division by eight votes. It was probably closer than he thinks, however, because several people said to me afterwards, “We went into the wrong Lobby by mistake.” That demonstrates the strength of feeling on the Labour Benches. There is nothing to be lost in accepting the Opposition’s formulation, because it would strengthen the wording and achieve, beyond peradventure, what my right hon. Friend says he wants to achieve through the Lords amendment.

I am broadly in the same camp as my hon. Friend the Member for Hendon (Mr. Dismore), because I feel that I voted the wrong way on Monday. However, I am a serial loyalist, and sometimes that overwhelms me.

My right hon. Friend the Secretary of State and Lord Chancellor is probably the greatest circle-squarer whom Whitehall has seen in recent years. I tend to follow him, but I remember that when we worked together at the Foreign Office he would come to me and say, “We may be going in this direction, Denis, but it is about-turn time and swallow-humble-pie time, and I am afraid that is the political reality.” On this cause, he may not have the votes of the House, so I ask him to consider whether that moment has arrived.

My thinking stems, first, from a fundamental principle that is enshrined in the term habeas corpus. It translates as “produce the body”, and it applies as much to the dead as to the living. A core human right is to know how and under what conditions somebody died. If we do not have that right, we do not have full democracy. Families cannot grieve and injustices cannot be put right. That is why the coroners’ jury surveillance system is of the most profound democratic importance. I wish there were far more of it in Africa, Latin America and Asia, and I am very reluctant to see any watering-down of it in our own country.

Of course, I fully accept my right hon. Friend’s sincerity, but I well recall our great right hon. Friend, Michael Foot, saying in the 1970s that if the freedoms and liberties of Britain had been left in the hands of judges, we would have precious few. He got terrible stick from the learned QC profession about that—the Thomas Leggs and others were out there bashing him about the head—but I actually think he was right. When I hear, “The Executive will talk to a senior judge and, er, that’s all right”, I am afraid I start to become more and more of a Footite and less and less of a Strawite. These things can happen.

I have some direct experience of the matter, because some 19 years ago I became involved tangentially, through a friend, in the case of eight British fusiliers who were killed by friendly fire in the first Iraq conflict. They were brought home, but they could not be buried until there had been a coroner’s inquest, because a person cannot be buried in the UK without the coroner’s say-so. We found the most constant lying, deceit, obfuscation, dishonesty and cover-up on the part of the Conservative party, which was in power.

One of the millionaires on the Opposition Front Bench says, “What?” I will send him my book, and if he can say to me that the letters sent by the Ministry of Defence or the then Prime Minister to the families were acceptable, I will give him even more money to add to his millions.

By using the Freedom of Information Act in the United States and by talking directly to American officers, we got to the truth. We were able to bring to a coroner’s court at Oxford an American officer who, under the cloak of anonymity, gave vital evidence that disproved the position of the then Government, and a verdict of unlawful killing was rightly returned. The grieving families of those dead fusiliers felt that they had justice, because no part of the Executive or the judicial system could remove their right to the coroner’s court.

I see that I am upsetting the Opposition; good. That does cheer me up. [Interruption.] Oh, the millionaire says I am boring them. Prepare to be bored.

Mr. Deputy Speaker, if I am insulted and cat-called from a sedentary position, Members will get as good as they give.

Along with my hon. Friend the Member for Hendon and others, I am worried, if there is a change of Government, about handing to the state and the judiciary new powers that in that case would have denied the right of British citizens to know how their loved ones died. We should therefore resist it, so I say with affection and respect to my right hon. Friend the Secretary of State that I cannot follow him into the Lobby on this proposal.

I am grateful to all the hon. Members who have participated in the debate and to the Secretary of State for the way in which he has responded, but I remain of the view that our amendment is useful. I hate to think that if we did not press it to the vote, I would regret it at a later date in the realisation that it would have helped in the interpretation of a difficult clause. I therefore wish to press it.

Question put, That amendment (a) to Lords amendment 1B be made.

Proceedings interrupted (Programme Order, 9 November).

The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83G).

Lords amendment 1B agreed to.


That this House does not insist on its disagreement with the Lords in their amendments 59, 119, 121, 236 and 239—(Mr. Straw.)

On a point of order, Mr. Deputy Speaker. It would be useful if the Secretary of State could make a statement on the fact that the Government appear to have run up the white flag on Lord Waddington’s amendment. This is a great victory for free speech, and we should know more about it.

On a point of order, Mr. Deputy Speaker. I have given you prior notice of this point of order. On 14 May 1977, Captain Robert Nairac of 3 Company, 1st Battalion Grenadier Guards, was captured by the IRA on operations in Northern Ireland. Yesterday, the press reported that someone has been arrested for his murder. The officer is still technically missing in action, and I wonder whether a Minister will come to the House and explain what is happening and what information can be given to his family and regiment.

While I appreciate that that is a matter of enduring and deep concern, I am afraid that the Chair has no means of requiring a Minister to come to the House on that matter; nor has the Chair had any notice that that might happen. The hon. Gentleman has made his point and there may be an opportunity before long for more to be said on that subject.

Policing and crime Bill (Programme) (No.3)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Policing and Crime Bill for the purpose of supplementing the Orders of 19 January and 19 May 2009 (Policing and Crime Bill (Programme) and Policing and Crime Bill (Programme) (No. 2)):

Consideration of Lords Amendments

1. Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion two hours after their commencement at this day’s sitting.

Subsequent stages

2. Any further Message from the Lords may be considered forthwith without any Question being put.

3. The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—(Mr. Hanson.)

Question agreed to.