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Coroners and Justice Bill

Volume 711: debated on Tuesday 9 June 2009

Committee (1st Day) (Continued)

Clause 5 : Matters to be ascertained

Amendment 7

Moved by

7: Clause 5, page 3, line 37, leave out paragraph (b) and insert—

“(b) when, where, by what means and in what circumstances the deceased came by his or her death;”

We come now to Clause 5 and my Amendment 7, which is grouped with other amendments. The amendment would replace the words,

“how, when and where the deceased came by his or her death”.

The purpose of the amendment is to bring Clause 5, and with it the statutory framework of the coroners system, into line with the recent jurisprudence of the Judicial Committee of your Lordships’ House. Under Article 2 of the European Convention on Human Rights, on the right to life, Governments are required to,

“establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life”.

The European Court of Human Rights has interpreted this as mandating independent official investigation of any death where public servants may be implicated.

In the landmark House of Lords case of R v Her Majesty’s Coroner for West Somerset ex parte Middleton, their Lordships ruled on 11 March 2004 that in cases where Article 2 of the European Convention on Human Rights is engaged, the outcome of the inquest as currently provided for in the England and Wales coroners rules by the phrase,

“how the deceased came by his death”,

should be interpreted as,

“in the broader sense previously rejected, namely as meaning not simply ‘by what means’ but by what means and in what circumstances”.

Those are the words that I tabled and that appear in the Marshalled List. Their Lordships were essentially seeking to imply a clearer, wider and more robust requirement upon the coroner’s investigation into a contentious or complex death to look at the circumstances around the death in addition to its factual cause. This amendment takes verbatim the very words contained in that judgment—“what means and what circumstances”—and places them into a statutory requirement upon the coroner.

Like Amendment 2, which I moved earlier, this amendment arises from a proposal put forward by Dame Janet Smith following her own experiences with the Shipman inquiry, which she chaired. It rests on Article 2 of the Human Rights Act, which imposes the duty I have mentioned to undertake a full investigation of the cause of death. In the case of Middleton, to which I referred, our courts have spelt out when Article 2 needs to be engaged and the way in which words such as “how” are to be construed. In meeting that requirement I have used the old rubric,

“by what means and in what circumstances”.

Those are the words that my amendment seeks to incorporate in the interests of clarity.

There are a couple of instances where the absence of this rubric might militate against the interests of the victim or their family. For example, a road traffic accident might initially appear straightforward, but what if the accident occurred because of negligence in maintaining the motorway or some other corporate failing? Detailing the circumstances in which a death occurred is manifestly important. What if a seemingly natural death in a hospital were in reality caused by dismal hygiene or neglect by the NHS? I cite the specific example of Stafford Hospital, which was highlighted in March. I quote from a BBC report entitled “Failing hospital ‘caused deaths’”. It said:

“A hospital’s ‘appalling’ emergency care resulted in patients dying needlessly, the NHS watchdog has said. About 400 more people died at Stafford Hospital between 2005 and 2008 than would be expected, the Healthcare Commission said. It said there were deficiencies at ‘virtually every stage’ of emergency care and managers pursued targets to the detriment of patient care”.

The then Secretary of State, Alan Johnson,

“said a review of Mid Staffordshire NHS Foundation Trust, which runs the hospital, would be carried out, focusing on the years 2002 to 2007”.

I deliberately mention the long period of time that the Secretary of State’s review is covering because clearly these were not instances that were picked up in coroners’ investigations carried out during that time, as I think we would all agree they should have been. I agree with Mr Johnson when he says,

“there was a complete failure of management to address serious problems and monitor performance. This led to a totally unacceptable failure to treat emergency patients safely and with dignity”.

Such failings will undoubtedly occur again. It is in the nature of the way that we run our hospitals and our public services that awful serial mistakes can sometimes be made with tragic consequences for all those involved. Part of what the Shipman inquiry tried to identify in the case of a doctor who had been taking the lives of his patients was that where a pattern emerges, it should be identified at a very early point. By not having in the Bill these words, which appear in the European Convention on Human Rights, we are perhaps failing to recognise a gap that needs to be plugged. That is why it would be good to incorporate these words in the Bill which Dame Janet Smith, who carried out the inquiry, believes to be necessary.

I hope that the Minister, who has sat patiently throughout our proceedings and listened to this speech, will think carefully about this and even if he cannot accept the terms of the amendment today, perhaps he will give it further thought between now and Report.

I have several amendments in this group. I should like to speak to Amendments 7 and 27 and then turn to Amendments 26 and 29.

The term “how” appears to be too simplistic for all the reasons outlined by my noble friend Lord Alton. I want to link this to coding, however; when a death has occurred, the narrative verdict goes to the Office for National Statistics, where coding has to be undertaken. I should like to give a shortened example to illustrate why “how” is too simplistic.

Let me give the example of a drowning. A deceased person who resigned from work appeared to become depressed and did not want to bother his GP. He felt guilty towards others at work that he had not been replaced. His partner came home to find an empty house. Thinking that he had gone for a walk along the cliffs, which was near their home, his partner went to search for him but the body was found in the water. The emergency services were called, the body was retrieved from the water by the coastguard, and the post-mortem revealed drowning. That is a shortened version. The problem facing the ONS in coding was whether this was an accidental or unintentional death, intentional self-harm, assault or an event whose intent cannot be determined.

We look at statistics to see what is happening in our society, particularly in the case of self-harm—we have talked a lot about suicides already—but without the accurate coding of a death we do not know. There is a problem when there is only a narrative verdict, but there is also a problem sometimes if there is not a narrative verdict because it does not set the context of the death. That was the thinking behind Amendment 27, which aims to make sure that whoever is involved in the hearing will put some thought into which category they felt would be most appropriate for the death to be classified as well as providing a narrative verdict.

There are other examples that I could give, but because of the time I will not go into them. I have a whole collection, however, and it is to the credit of the Office for National Statistics that it manages to provide coding on some of the very complex verdicts that emerge.

There is another problem about how a death occurred. As well as the means by which the death occurred, there can be important cases involving public health and safety, where the Human Rights Act does not apply and there is need for a broader inquiry, such as deaths raising concern about transport or workplace safety; the death of a vulnerable old person in a nursing home; or the death of someone in a private workplace. There needs to be a lot more said than simply “how” their death came about.

On Amendment 26, the Bill appears to prevent verdicts of unlawful killing or neglect which appear to determine civil liability. As I understand it, there is a debate in the courts at present about whether an inquest can contain judgmental words such as “serious” or “unreasonable”. It seems that this dates back to 1984. Since then, however, processes of judicial review, regulatory law and professional accountability have increasingly been developed. I am grateful to Inquest for drawing to my attention the inconsistency between this legislation and the legislation in Scotland where, if there is a fatal accident inquiry, deaths are investigated and the sheriff is allowed to determine, among other things: where and when the death and any accident resulting in the death took place; the cause or causes of the death and any such accident; the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided; the defects, if any, in any system of working which contributed to the death, or any accident resulting in the death, and any other facts which are relevant to the circumstances of the death.

I understand from Inquest that it has long argued that the prohibition on verdicts appearing to determine an issue should be removed from coronial law altogether. The issue in an inquest is responsibility, not liability. There can be confusion, which is why these amendments have been put down. Indeed, I began to wonder, in the light of the recent judgment in Northern Ireland, whether this part of the legislation would now require a small amount of amending. I would leave that up to the Minister and the Bill team and not attempt to do that myself.

Amendment 29 links to this and is quite specific about whether precautions were taken to prevent or avoid the death; and that is linked again to the safety aspects and whether proceedings or questions should be raised immediately following the inquest to protect others who might be in a high-risk environment but are unaware of it. That relates particularly to employers. I hope that that explains, as briefly as I can, the thinking behind this group of amendments and why the word “how” seems grossly inadequate and really should be expanded on.

I will speak to a number of amendments in this group in my name and that of my noble friend Lord Thomas of Gresford and in the names of other noble Lords. There are two elements to the consideration of Clause 5. The first is what people—particularly the bereaved and the family affected—generally expect of a coroner and a coroners’ court. They expect that, in an experienced, thoughtful and wise non-adversarial investigation, someone with judicial qualities will be able to get to the bottom of what happened and explain that to them. Many of these issues are complex and highly unlikely to be fully described or properly conveyed with a narrow, diagnostic mandate. The second consideration is that we have been faced, as the noble Lord, Lord Alton, has pointed out, with decisions of your Lordships’ House in a judicial capacity that show that the human rights convention requires us to go much further than would have been the case in the past.

Those are two important components. What is somewhat disappointing about this clause is that it appears to be saying that, although we have to accommodate the human rights convention, we will do so as narrowly as we possibly can, rather than opening it up and giving as wide as possible opportunities for the coroner to explore things and to describe them for the benefit of the family and the community and of wider knowledge.

The noble Lord, Lord Alton, and the noble Baroness, Lady Finlay of Llandaff, have begun to try to open up the thinking and the possibilities that might be available to the coroner. In these amendments, we have tried to add to conformity with the human rights convention the interests of justice. We should be doing things not just because we are being forced into it—because we have signed up to the convention—but because it is the right thing to do and opens things up in the interests of justice.

What things could reasonably be considered? We have tried to enumerate a few, but the list is not exhaustive. For example, to what extent were systemic failings a factor in the death, or what appropriate precautions could have been taken? If a person takes their life, was the risk of their doing so not recognised, whether whole or in part, by people who were acting on behalf of the state? There are other factors of this kind, but I often find it useful in these circumstances to give an example. Here, I declare an interest as a consultant psychiatrist working in the National Health Service.

I shall go back to a fairly early experience of my own. A man was in hospital in an extremely distressed, depressed and psychotic state. He believed that he was responsible for all sorts of terrible things that had been happening. There had been a disco disaster in another country, with a terrible fire and a lot of people killed. He believed that his thoughts had contributed to this terrible business. He was not very forthcoming to the staff in general, but, as a young doctor, I spent some time with him and he was prepared to talk a bit more to me. I realised that this man was very disturbed and very likely to kill himself.

I explained the situation to my consultant boss. He said, “Well, I think we need to make sure that nobody allows this man out of the ward. This is very dangerous; he’s going to harm himself”. Rather foolishly, 100 years or so previously, those who had designed the hospital had put it not very far from a railway line, so we knew that there was a serious risk to this man. When the man said to one of the nursing staff, who was a very kind person, “Look, I’m very anxious; I’m in a terrible state and I just want to go over to the hospital shop to buy myself some cigarettes to help myself calm down”, the nurse felt that it was not a wholly unreasonable demand. But the man never returned to the ward. He went straight down to the railway line and threw himself on top of the next train.

To describe that simply as a man who was an in-patient in a hospital and committed suicide is not very helpful. It does not tell us what happened; it does not tell us what could have made sure that it did not happen; it does not tell us whether systemic failings or professional failings were to blame. We should know not because we are out to attribute blame and liability but because, if we understand what actually happened, that often helps the family and it could help hospital staff and others to deal more appropriately with things.

Unfortunately, Clause 5(3) gives a fairly robust indication that nobody should say anything except the least that they can say—the coroner and the jury if one is involved should be very careful about what they say—whereas in many ways we should try to encourage people to be as openly thoughtful as they can be. There are of course reasonable and proper, as well as professional, limits to what people should say and do.

The amendment suggests that, rather than simply saying that the human rights convention has forced us down a particular road, we should embrace it and ask whether we can open up our verdicts to be more narrative and explanatory in their design and approach, taking some responsibility to point up any of the systemic or other failures or problems that have arisen during an appropriate investigation. This is not an adversarial but an investigatory system of judgment, which can bring help and comfort to families and enable them to understand more of what has happened, as well as helping the system to develop and improve by learning from sometimes painful experience.

I shall speak to Amendments 11 and 28, both of which are in this group. I welcome the fact that the Government are seeking to have these measures compliant with the Human Rights Act and the European Convention on Human Rights. Amendment 11 would allow a coroner to ascertain the circumstances of a death in cases where there could be a risk to public health and safety or where the coroner believed that it was in the public interest. There may be cases not necessarily subject to the application of the Human Rights Act or the protection of the convention where it would surely be appropriate for an investigation into the relevant circumstances of the death to take place. I might perhaps best illustrate this by giving a number of examples.

There might, for instance, be a death of a vulnerable person in a private care home. There might be a death in a private workplace. There might be a death involving British state agents in circumstances where the Human Rights Act does not apply because the date of death was before the Human Rights Act came into force, or because the location of death was abroad and outside the limited extraterritorial scope of the European Convention on Human Rights. It might be the death of a British national abroad, not involving British state agents but in circumstances where there was no prospect of adequate investigation by the host state. There might be deaths involving other circumstances that, if allowed to continue or recur, may result in the deaths of other members of the public. That is surely one of the key issues. If there is a problem that can be established, and doing so may save other people’s lives, I argue that it is appropriate that the Bill should cover that circumstance and give the coroner the power to investigate. That is the purpose of Amendment 11.

On Amendment 28, the problem is that there seems to be a possible conflict between two parts of the Bill. These are the general duty on coroners outlined in Clause 5 and what is said in Clause 10, particularly subsection (2), to the effect that a determination from a coroner may not be worded in a way that appears to declare a person guilty of a criminal offence or to determine a civil liability. On the face of it, that may not seem improper, but a coroner might interpret it as a constraint on the more general investigation of a death. The purpose of the amendment is to ensure that this constraint will not be a limiting factor on how the coroner approaches his responsibilities. The dilemma is a simple one. I hope that Amendment 28 is a way around that dilemma, in enabling the coroner to investigate a death without being constrained by the fear that he or she might be close to determining civil or criminal liability. It is a worthwhile amendment and I hope that the Minister will be sympathetic in his approach to it.

I support the amendments that have been spoken to. On the question of civil liability, it should be realised that, in practice, when dealing with an accident case, the very first thing that a solicitor or counsel will look for is the inquest transcript and findings. If certain facts emerge in the course of the inquest, or if certain witnesses give evidence and the coroner comes to a particular view, it is very powerful material that will encourage an insurance company to settle the case so that no litigation follows. Of course, if there is litigation, the fact that the inquest has come to a particular view is, in civil cases, of no consequence. The court will decide on the evidence that is produced before it. However, the inquest is the starting point for the solicitor in looking at how to approach an insurance company to settle a claim.

In the case of criminal liability, the old rule used to be that a coroner’s jury could commit a defendant or named person to the assizes. I recall having just such a case as a young solicitor. A baby had died at the age of six or 10 weeks and there was a great deal of controversy over how that death had occurred. The coroner’s jury committed the case to the assizes, but the practice was that the Director of Public Prosecutions would then hold ordinary committal proceedings in a magistrates’ court. I appeared as a solicitor for the father of the baby in the magistrates’ court and secured his acquittal at that point. When I was about 23 or 24, I regarded that as a great victory, but 15 years later I was told by the paediatrician whom I had cross-examined that my client had killed his second child and then confessed to having killed his first child. That has coloured my view of acquittals ever since.

However, that is not the system that operates at the moment. Clearly, no coroner’s verdict, or a jury’s verdict, can determine either criminal or civil liability. However, it has its place in determining whether civil liability can be established to the satisfaction of an insurance company that will settle the claim. For that reason I support the amendments tabled by the noble Baroness, Lady Finlay, and consider that the Bill as drafted is far too narrowly confined as regards the purpose and significance of a jury’s verdict.

I am grateful to all noble Lords who have taken part in this very important debate. The noble Lord, Lord Thomas of Gresford, criticises the narrowness of this part of the Bill. Why are the matters to be ascertained so narrowly? I suggest that it is because the nature of coroners’ investigations is different from other forms of legal proceeding. The purpose is to establish facts; it is not to apportion blame or establish legal liability. That is an important principle. Of course, modern law has altered. The European Convention on Human Rights has had an effect and I shall say something about that.

Clause 5 needs to be read in conjunction with Clause 10—that was referred to by my noble friend Lord Dubs—and paragraph 6 of Schedule 4. Clause 5 merely outlines what the legal purpose of the investigation is, and the information that such an investigation has to ascertain. Clause 10 clarifies that any determination or findings are framed in a way that does not determine any question of criminal or civil liability because that is not the function of an inquest; that is the function of a criminal or civil trial. Coroners retain the ability to give a narrative verdict. Paragraph 6 of Schedule 4 gives the coroner the power to make a report on actions to be taken to prevent other deaths. These powers combined give a very wide ambit for coroners to make whatever comments they deem necessary.

It seems to us that Amendment 7 in the names of the noble Lord, Lord Alton, and the noble Baroness, Lady Finlay, seeks to extend the remit of the matters to be ascertained as part of a coroner’s investigation to an unnecessary extent. We fear it would mean that all cases are investigated to an extent that ascertains not only the immediate factual details of the case—in other words, the identity of the deceased person concerned and how, when and where they died—but the broader circumstances leading up to and surrounding the death.

As the law stands, and in the Bill as drafted, such an extensive investigation is required only in cases where Article 2 of the European Convention on Human Rights is engaged. As the noble Lord, Lord Alderdice, gave his helpful, graphic example, I thought that that case seemed to me to be, prima facie at least, an Article 2 case. Such an approach would lead to a significant drain on resources and to delays in holding inquests and in most cases add little to the totality of knowledge about a death. I stress that coroners already have, and under the Bill will continue to have, the ability to conduct a wider investigation into any deaths that they have a duty to investigate.

Clause 5(2) merely reinforces the fact that in cases where Article 2 is engaged, coroners must—I emphasise “must”—ascertain the wider circumstances leading up to and surrounding the death as part of the investigation. In cases where Article 2 is not engaged—and there are many of them—coroners may still examine the wider circumstances leading up to and surrounding the death if they consider it appropriate to do so.

With regard to looking at the wider circumstances of any death caused by suicide, I understand fully the point made by the noble Lord, Lord Alderdice, at Second Reading that there may need to be some distinction between the means of death—that is, by what method the deceased person concerned killed themselves—and the circumstances in which they came by their death—that is, what triggered within them the desire to take their own life. However, our view is that this issue can more properly be addressed by guidance from the Chief Coroner specially tailored to those deaths rather than placing a blanket requirement in the Bill.

Turning to Amendments 8 and 11, I agree that deaths may occur in certain circumstances where Article 2 rights are not engaged and where therefore the requirement to hold a wider-ranging investigation under Clause 5(2) does not arise but where there would nevertheless be benefit in the broader circumstances of the death being investigated—the type of case to which my noble friend Lord Dubs referred. This may be for the reasons stated in the amendments before us today or for other reasons. I repeat that the discretion to carry out a wider-ranging investigation already exists and will continue to exist under the reformed coroner regime. The coroner has the discretion to set the scope of an inquest and may decide to investigate the broad circumstances that caused or contributed to any death, even if Article 2 is not formally engaged.

Given that broad discretion—and I should add that this is a matter on which the new Chief Coroner may decide to issue guidance—we do not believe that it is necessary to list in the Bill the circumstances contained in the amendments. In addition, the Bill was strengthened in the other place in respect of following up recommendations to prevent future deaths. That is why Schedule 4 and Clause 29 provide for the Chief Coroner to receive all reports from senior coroners on the matter of preventing deaths, together with the responses of the recipients of those reports, and for the Chief Coroner to then summarise them every year in his or her annual report to the Lord Chancellor.

I move on to Amendments 9, 10 and 29. We are concerned that these amendments would take the coroner system back to the days to which the noble Lord, Lord Thomas of Gresford, referred, when coroners had a role in the detection of crime and would routinely attribute blame and assign civil or criminal liability. During the previous century, coroners’ duties in these respects were gradually reduced. For example, the Coroners (Amendment) Act 1926—I do not suggest that the matters that the noble Lord, Lord Thomas of Gresford, was talking about occurred prior to 1926—introduced the requirement for the adjournment of an inquest until the completion of indictable criminal proceedings. Concern over coroners’ possible encroachment into areas of criminal justice were renewed in 1975, as some of us will remember well, when a coroner’s jury named the missing Lord Lucan—my officials asked whether I should refer to him as the noble Lord, Lord Lucan—as guilty of the murder of his children’s nanny. This anachronism was removed by the Criminal Law Act 1977, which excluded the question of criminal liability from the purposes of the inquest.

The matters listed in the amendments that I refer to are, in our view, matters that are far more suited to coroners’ reports to prevent future deaths. A coroner could, quite properly and legitimately, give his or her view on such matters in any report to prevent future deaths. The Government place great store on these reports that are currently made under rule 43 of the existing Coroners Rules 1984, and will in future, as I have said, be made under paragraph 6 of Schedule 4 to this Bill.

Similarly, Amendment 12, which seeks to remove subsection (3) of Clause 5, would remove the obligation not to express an opinion with respect to the matters to be ascertained under Clause 5(1) and (2). This obligation is there because the matters to be ascertained under these clauses are matters of fact. There should not be room for additional opinion in determining these matters. I shall point out that subsection (3) of Clause 5 contains the proviso that it is subject to paragraph 4 of Schedule 6, which I have just referred to. There will also be scope, within the underpinning rules, for narrative verdicts, which coroners and juries, when directed to do so, make use of when it seems a more appropriate format than a so-called short-form verdict—such as “death by misadventure” or “death by suicide”—in order to reflect the circumstances of the death. Those provisions give enough scope for coroners and juries to make known matters that they believe ought to be made known. As I understand it, they do not have to relate to Article 2 cases.

I turn to Amendments 26 and 28. I want to assure my noble friend Lord Dubs and the noble Baroness, Lady Finlay, that Clause 10(2) is not intended to prevent a coroner or jury considering facts bearing on civil or criminal liability in order to reach a determination. A determination pointing to responsibility for a death will not offend subsection (2) of Clause 10, provided that it is framed in such a way so as not to appear to determine any question of criminal liability on the part of a named person or any question of civil liability. Again, I do not believe it is necessary to state this on the face of the legislation.

We would be particularly concerned by any changes to the law that allowed the determinations and statements made by coroners or juries to be framed in a manner that could lead to comments on matters of criminal and legal liability, as Amendment 26 would appear to ask to allow. We have doubts that simply stating on the face of the Bill that any determinations made under Clause 10(1)(a) should not be construed in that way, as Amendment 26 suggests, would be sufficient to prevent this from actually happening. Coronial determinations or findings that can be construed as apportioning blame could well have an influence on later proceedings when matters of civil or criminal liability are being dealt with in the courts. We want to avoid the situation in particular where a possible murder or manslaughter trial is prejudiced because the jury are aware of determinations and findings made at an inquest that appear to have already indicated a person’s guilt.

I turn finally, but not at all least, to Amendment 27, in the name of the noble Baroness, Lady Finlay, which would require every coroner verdict to use an,

“internationally agreed code for the cause of death”,

and include a narrative description. As we understand it, the first part of her amendment would, in practice, mean classifying each cause of death into a category recognised by the World Health Organisation. I accept that, on the face of it, that amendment may make it easier to compile statistics on the causes of death, so that deaths can be centrally collated to reveal trends and clusters. That is her case, I think. We fear that, in practice, it could mean that coroners would feel compelled to apply a classification that did not accurately reflect how someone died. Why is this? This is because not every death investigated by a coroner will be caused by a disease or health problem listed in the International Classification of Diseases. Having said that, we recognise the importance of statistics to inform future public policy but we believe that coroners need discretion in order to give a verdict that reflects the particulars of the individual case. The amendment would also require a narrative verdict in every inquest. We do not consider such a requirement to be necessary or appropriate. Coroners are already aware of the option of a narrative verdict, but in most cases short-form verdicts are perfectly adequate to convey the cause of death accurately to the satisfaction of all parties and interested persons.

It has been a fascinating debate, and I feel that we may return to this later in our discussions, but I have tried to explain to the Committee tonight why we are not immediately attracted to the amendments.

Let me pursue the point that I was making. Let us suppose for a moment that a young soldier has been killed as a result of being sent on patrol in a Land Rover that is not adequately protected against landmines. Let us suppose that that fact emerges in the course of an inquest. Do the provisions of the Bill prevent the coroner or a jury from making that absolutely clear in the verdict or decision that they make as a result of the inquest? That is the problem. It may very well inhibit a jury or a coroner to be told: “You cannot determine civil liability in this case”, when they are faced with the clearest evidence that inadequate provision has been made for the safety of the young soldier.

I give that only as an example; I could follow it through with factory cases and many other instances, as the noble Lord will appreciate. I would be grateful for his assurance that a jury or a coroner can properly comment and come to a conclusion where there is clear evidence of failure of system or process—the provision of adequate equipment or something of that kind.

As I understand it—I want to be very careful to answer the noble Lord as accurately as I can—the answer to his question is yes, they can do that. They have to be very careful not to frame any comment or decision that would name a particular person as being necessarily guilty of a criminal offence or liable for a civil suit.

As I am advised, coroners could refer to such matters as the noble Lord raises—inadequate provision for the safety of a soldier, for example—in a report to prevent further deaths, and include that finding in the determination of the inquest.

Does the Minister thereby recognise that, in many cases, a full and accurate statement of the facts will inevitably expose responsibility? It is a complete fallacy to proceed on the basis that the facts are one package over here and responsibility is a separate package over there. The Minister is nodding as if I have got the point right.

Not for the first time, I agree with the noble Lord. It would be a fallacy to divide those two things. Coroners are now advised to tread very carefully indeed in matters as simple as naming people who may be guilty of criminal offences as a consequence of the facts that have been found. If they concentrate in their findings on the facts themselves, they may speak volumes, and that may affect what happens in a criminal or civil court later. The coroner's role, and the coroner's jury's role, is more limited than that.

Criminal liability may involve other factors such as guilty mind, but from the point of view of the civil law, the proposition which I put, which the Minister has accepted, is the general truth that, often, the accurate and full finding of the facts will point the way for responsibility for civil liability.

In precisely the terms that the Minister himself used, coroners have to tread very carefully. That is the concern that led us to raise questions about subsection (3), because it seemed to us that it was precisely that urging toward caution which would lead people to say as little as they reasonably could, rather than to expand as fully as possible. I am very grateful to the noble Lord for generously exploring this issue. As he rightly said, I am sure that we will return to it.

I thank the Minister for his explanation and for correctly interpreting the intention behind all of this. In summing up, he spoke about guidance. I shall push a little bit further on whether there is an intention to include in guidance that best practice would record the broader context of the how, not the narrow. We could, perhaps, seek in guidance that best practice by the coroner would, wherever possible, give a steer to the Office for National Statistics over which coding might be appropriate, without necessarily making that the definitive coding. The narrative verdict would then provide a backdrop, if you like, to the coding.

Rather than coding cold and blind, however, the ONS would have some guidance from the person who had actually been there and heard all the information that came forward so that the facts could be appropriately classified. Those facts have a long-standing implication—in fact, for the rest of the lives of the bereaved. They live with whatever was found at that time, so I should like to push the noble Lord a little further on guidance and on good and best practice.

I can say only a little about guidance, but I should have thought that what the noble Baroness has said on the guidance that may be issued once the Bill becomes an Act is sensible and we are putting that into operation. Whether it should be in the Bill is a different issue.

What is the impact of Schedule 4(6) on page 127, to which reference is made in the clauses we are discussing, on the discussion that we have just had? As I read it, it seems to be making the precise points that the Minister seeks to deny.

If we look together at paragraph 6 of Schedule 4, it reads:

“Where … a senior coroner has been conducting an investigation … anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and … in the coroner’s opinion, action should be taken to prevent”—

a crucial word—

“the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances, the coroner may report the matter to a person who the coroner believes may have power to take such action”.

It then proceeds to say what will happen next.

The point that I was trying to get across in responding to this debate was that this was a power that coroners would be given under the Bill. The power already exists, as I understand it, under current rules and I should have thought that those who have spoken in this debate would welcome that power. In other words, if there were potential deaths to be prevented in future, the coroner should have a statutory way of getting that message across to the appropriate parties.

I thank everyone who has taken part in the debate on this group of amendments, and not least the noble Lord, Lord Bach, who has shown great patience in dealing with these complex questions. Ten amendments have been grouped together and we have heard some very perceptive contributions during the debate, not least from my noble friend Lady Finlay and from the noble Lords, Lord Alderdice and Lord Thomas of Gresford, who through the powerful story he used caused us all to pause and consider what it is that we are trying to achieve. Although the noble Lord, Lord Bach, has been generous in making commitments to the Committee about guidance that may be given and that he will reflect on some of the direct questions raised, I should like to go back for a moment to the issue that principally divides us.

The issue is whether or not we should incorporate the words set out in Article 2 of the European Convention on Human Rights. In my own amendment I sought to remove the word “how” and replace it with the rubric,

“in what circumstances the deceased came by his or her death”.

That gives us a wider canvas on which to paint the circumstances. When the noble Lord, Lord Alderdice, said that the present wording in the Bill is a narrow interpretation of the convention and that there is an opportunity here to be rather more generous in how we set out the legislation, he got the point right. He was also right to remind us that the purpose of any coroner’s inquiry is to get to the bottom of what occurred. He said that we had to do this in the interests of justice and to expose systemic failings. I strongly agree with that.

One of the problems is that our failure to interpret a duty that has been imposed on us not just by the convention but also by jurisprudence in our country—I referred to the Middleton case earlier—may lead to some practical consequences. I hope that between now and the Report stage the Minister and the Bill team will reflect again on how we would make retrospective the commitment the noble Lord gave us when he said that during the course of a coroner’s inquiry the coroner himself could invoke, as it were, the terms of Article 2. How could we know retrospectively whether it would have been right to invoke Article 2 at, for instance, the beginning of the proceedings and what would that do to the proceedings themselves if this was only belatedly referred to as they went on? That is a recipe for confusion and would prevent us bringing about the kind of justice we want to see and the rooting out of systemic failure that I referred to in my opening remarks and which was referred to by other noble Lords.

We have a lot to reflect on when we read the Official Report tomorrow and consider what the Minister has said. For the time being, however, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Amendments 8 to 12 not moved.

Clause 5 agreed.

Clause 6 : Duty to hold inquest

Amendments 12A and 13 not moved.

Amendment 13A

Moved by

13A: Clause 6, page 4, line 14, at end insert—

“( ) The senior coroner shall maintain a record of all deaths that were notified to him, but where an inquest was held, as a result of the decision to discontinue an investigation.”

This amendment has a typographical error in it that I should like to draw to the attention of the Committee. It should read:

“The senior coroner shall maintain a record of all deaths that were notified to him, but where no inquest was held”.

At the moment the amendment states “an” inquest. The amendment simply seeks to make sure that decisions become consistent across the whole of the country. If a coroner is holding far fewer inquests into a certain type of death than another, that would be revealed. The amendment would ensure consistency of standards right across the country as the Chief Coroner would have access to a register that collates and compares different coronial areas. That is all I want to say in explanation of that amendment, because at the moment, although such a record might be held somewhere locally, there is no way that the person who will become the Chief Coroner will be able to access that. As far as I understand, it would need to be held in a consistent format.

I wish briefly to support my noble friend Lady Finlay in moving this amendment. In the previous group of amendments, the noble Lord, Lord Bach, welcomed what my noble friend mentioned about the importance of collating information, not least for the World Health Organisation to be able to use those statistics in future. The importance of accuracy in the records that we collect is a point which was extremely well made and which is pursued further in Amendment 13A. I hope it will commend itself to the Minister.

I acknowledge that accurate recordkeeping is a vital part of the coroner’s role and can help to identify trends. My noble friend referred to these issues a few moments ago. This amendment places in the Bill a requirement to record discontinued investigations. I reassure the noble Baroness, Lady Finlay, that coroners do keep this information. It is recorded in the annual statistics about the operation of the system, which are published by the Lord Chancellor. The most recent publication was submitted on 7 May. For example, in 2008 approximately 235,000 deaths were referred to the coroner. There were around 31,000 inquests. This shows, if I do my sums right, that the vast majority of investigations—204,000—did not proceed to an inquest.

Under our proposed reforms, this type of recording will continue and will be included with any enhancements that the chief coroner requires, or thinks advisable, in the annual report on the coroner system, which the chief coroner will make under Clause 29. In view of this assurance, I hope the noble Baroness will feel able to withdraw her amendment.

I am grateful to the Minister for that assurance. My amendment was intended to probe and to make sure that the system would continue and be improved consistently. I beg leave to withdraw the amendment.

Amendment 13A withdrawn.

Clause 6 agreed.

Clause 7: Whether jury required

Amendment 14

Moved by Lord Bach

14: Clause 7, page 4, leave out line 18

Following the announcement on 15 May by my right honourable friend the Lord Chancellor, the government amendments in this group, of which Amendment 14 is the first, intend to remove from the Bill the provisions in respect of certified coroners’ investigations. I take some comfort from the fact that, while there has not yet been a meeting of minds on the solution, there is a general recognition that, under the law as it currently stands, there is a real practical problem. There will be very rare cases where a coroner is obliged to summon a jury, but where there is sensitive material which is relevant to ascertaining the circumstances of the death but which cannot be disclosed publicly, including to the members of a coroner’s jury or to the family of the deceased. If the sensitive matters are central to the determination of the issues it may therefore be impossible for an Article 2-compliant inquest to proceed. This includes those cases where the material concerned is intercept material, the use of which in legal proceedings of any kind is strictly limited, as the Committee knows, by the provisions of the Regulation of Investigatory Powers Act 2000.

That, in a nutshell, is the problem that the Government have tried to address and which Clauses 11 and 12 were intended to deal with. However, the problem remains with us, with or without Clauses 11 and 12. Existing safeguards such as public interest immunity certificates, anonymity for witnesses, heavily redacted and other material may be appropriate for some inquests, such as the inquest into the death of Jean Charles de Menezes, but there will continue to be very rare and exceptional cases where even these measures will not be sufficient to enable an inquest which must be held with a jury to satisfy the requirements of Article 2 while, at the same time, ensuring that protected material is not made public or unlawfully disclosed.

We have acted in good faith in seeking to find an acceptable and workable solution within the framework of both the current coroner system and our reform model. We responded positively with further amendments of our own when concerns were expressed about these provisions, both in the other place and by those outside Parliament who share everyone’s commitment to ensuring that families get the fullest answers to questions they have about the death of a loved one. However, it is clear that none of these amendments has commanded the level of confidence and cross-party support that we wished for.

In the light of this we need to find an alternative way forward. In future, for those rare investigations into deaths when an Article 2-compliant inquest cannot take place because the inquest must be held with a jury and there is sensitive material which is central to the investigation but cannot be publicly disclosed, the Government will consider establishing an inquiry held under the Inquiries Act 2005. So the death will be investigated in that way rather than by way of a coroner’s inquest.

The Committee will be anxious to know what the terms of reference of such an inquiry would be. Indeed, the noble Lord, Lord Kingsland, spoke on this in the Second Reading debate. As those who have read the provisions of the Inquiries Act will know better than I, this is a matter to be agreed between the Secretary of State establishing the inquiry and the chairman appointed to lead it. However, when an inquiry is held instead of an inquest, the terms of reference are almost certain to include the matters to be ascertained by a coroner set out in Clause 5, which we have just debated.

Inquiries are not a lesser form of inquest and a death will be investigated just as thoroughly at an inquiry as at an inquest. Most campaigners would regard the kind of detail it can delve into as being at the very top end of an investigation into a death, an event or a series of events. It is not unusual for inquiries to be sought after an inquest has been held in order that further and wider matters can be considered. This proposal is not a second best for families but a genuine alternative.

It is in that context that I move Amendment 14, which is consequential on the eventual removal of Clauses 11 and 12. It is appropriate that I should stop there and allow the other amendments in the group to be spoken to, and then come back and try to answer some of the points that are raised.

My Amendments 33 to 36 are grouped with the government amendments. The Minister is right, there is a practicable problem. We debated it at length during our discussions on the Counter-Terrorism Bill and again when that Bill came back from the other place. We left it as unfinished business.

There was a great deal of unhappiness at the idea of secret inquests, so we are very pleased that the Government have withdrawn that idea, at least. I am not going to address the RIPA provisions right now, because I have Amendment 30 to deal specifically with those more technical issues later, but it is impossible to address this issue without referring to RIPA. As the Minister said, every time we come to address this issue, we seem to be dealing with the one case—the unfinished inquest of Azelle Rodney—because this RIPA evidence is so sensitive. However, when we considered the anti-terrorism Bill, we were talking about two cases, because there was a second case, that of Terry Nicholas. In the intervening time, the Terry Nicholas case has, interestingly, been settled entirely by a coroner, redacting much of the evidence, with no problem at all. She made a series of judgments that enabled the inquest to go forward, be heard and be resolved. What the Government felt at that time was insoluble has since been solved, so we are looking at putting on to the statute book a whole different method of holding inquests simply to solve one case. I wonder whether that is a good way to do legislation.

I see the downsides of an inquiry and I am not at all resolved that the Government have got the right solution to the problem. An inquiry, under the Inquiries Act, does not really fulfil any of the requirements that we are looking for with an open inquest. To begin with, the Secretary of State controls the appointment and the remit of the panel. There is also the big question as to whether it will cover the same ground as the statutory requirements of an inquest. As we discussed earlier in relation to the circumstances, it would be for the Minister to define all that. Therefore, whereas the coroner would control an inquest, it is likely that there would be strong ministerial control, as the Inquiries Act is drafted. There would be no jury asking questions, deciding facts and meeting public concerns. There would be private sittings, which would tend to be much less open and accessible to the public—obviously, because they are private. There is none of the purported scrutiny of the decision to keep evidence secret that the judicial review provisions would have provided for and there may not be sufficient funding made available to the parties to challenge any of this.

The only possible advantage is that, following the Counter-Terrorism Act 2008 amendments to RIPA, at least such inquiries can now receive RIPA material. That obviously gets around the issue of this one inquest that cannot be held at the moment and, in fairness to the family, they would very much welcome a resolution to the fact that their inquest cannot be heard. However, I think that, to resolve that one issue, we are in danger of putting on to the statute book a system of holding inquests that runs completely counter to the tone of all the discussion and debate that we have had this evening about having as full disclosure and discovery as possible, not only in the interests of the family, but in the wider interests of society. When we debated the Counter-Terrorism Bill, we cast our minds back to the “Death on the Rock” shootings—I expect that that would now be held as an inquiry and very little would come out.

I am deeply unhappy at the Government’s suggestion that anything held under the Inquiries Act 2005 would substitute for an inquest. I understand why the Government have put this forward, because they are in a very difficult position with the Azelle Rodney case, but I hope that all Members of this Committee will view this proposition with a good degree of scepticism and that, during this debate, we might find a different way forward.

I have considerable sympathy with the amendments tabled by the noble Baroness, Lady Miller, but tonight is certainly not the time to make a final decision about these matters.

I have tabled Amendment 46, which sets out what we require as the minimum amendments necessary to the Inquiries Act to make it a viable vehicle for the purpose that the Government appear at the moment to intend. I am uneasy about using the Inquiries Act for this purpose because its procedures are initiated by an executive act by the Secretary of State, and the investigation flows from that act. By contrast, coroners are centuries-old, well established public figures who are independent of the Executive; and, as a matter of principle, one would wish that all inquests were conducted through the coronial system.

If the Inquiries Act is to play some role in future, however, then in my submission at least four amendments to it are needed, to Sections 3, 5, 13 and 19. The amendment to Section 3, in our submission, requires that where an inquiry is to be used as an inquest, it will always be chaired by either a High Court judge or a more senior judge.

Section 5 permits the Minister, believe it or not, to change the terms of reference of an inquiry in the course of the inquiry. I remember that, at the time when the Inquiries Act was before your Lordships’ House in the form of a Bill, that power was much fought over. Surely, whatever value it might give to some inquiries in future, it cannot possibly have a role in an inquiry that, in effect, is performing a coronial function. It would be outrageous if the Secretary of State attempted, in the course of an inquiry looking into the death of someone under Clause 5 to seek to change the terms of reference of that inquiry.

Section 13, which gives the Secretary of State the power to suspend an inquiry at any point, ought to be amended in the case of inquiries investigating deaths that fall into the category of Clause 5. Any attempt to seek to suspend the inquiry should have the consent of the judge who is chairing it.

Section 19 gives wide powers to the Secretary of State to restrict public access to the documentation of the inquiry. We believe that any restrictions placed on such documentation should be placed on it only with the consent of the chairman of the inquiry, the High Court judge or more senior judge.

From our point of view, those would be the minimum changes necessary if the issue of an inquiry under the Inquiries Act should be pursued any further.

I, too, support the amendments that have been proposed by the noble Baroness, Lady Miller, and the noble Lord, Lord Kingsland. The problem is that the sensitive cases which cause understandable concern to the Minister are precisely the ones where it is most important that the proceedings to determine the circumstances of death, whether it is an inquest or inquiry, are transparent, independent and are seen to have those qualities.

Schedule 1(3), the subject of Amendment 33, requires the senior coroner to suspend his investigation if the cause of death is to be “adequately investigated” under the Inquiries Act. That is the Government’s proposed solution. Yet Schedule 1(3) begs the essential question because the Inquiries Act procedure is simply not adequate in this context. It has serious defects, as the noble Lord, Lord Kingsland, suggested, by reason of the powers that it confers on the Minister to both institute and intervene in the work of the inquiry.

Amendment 46 identifies some of those defects, in particular the power to suspend the inquiry and the power to restrict public access. Would the noble Lord, Lord Kingsland, and the Minister reflect on further provisions in the Inquiries Act which also need amendment if that Act is to be used in Clause 5 cases? Under Section 14 of the Inquiries Act, the Minister has a power to bring an inquiry to an end at any time he so wishes. Under Section 25, the Minister has power to withhold the publication of any part of the report if he considers it to be in the public interest to do so. Those powers, as well as those in Sections 5, 13 and 19 which Amendment 46 addresses, are quite impossible to reconcile with a judicial procedure which is independent, seen to be independent, and commands public confidence in these sensitive cases.

I hope the Minister will be able to tell us tonight that the Government will reflect on this important matter.

I intend to be fairly brief in my response. As the noble Lord, Lord Kingsland, indicated, these are not matters to be decided tonight. We need to come back to them, but it is a useful first exchange across the Dispatch Box and around the Committee on this particular topic. I am grateful to all noble Lords who have spoken: the noble Baroness for her amendments and the noble Lord, Lord Pannick, too.

My comment tonight is that I welcome the fact that Amendment 46, which the noble Lord, Lord Kingsland, spoke to, appears to accept that establishing an inquiry to investigate the circumstances of a particular death may be an appropriate way of proceeding. Maybe we read that wrong, but his amendment proposes a number of significant changes to the Inquiries Act in such cases.

The Government have made it clear that we will do everything we can in any particular case not to go down this avenue if there is a way in the coronial system of hearing a sensitive inquest. If we could, we would. This is not our first choice, which is to use the coroners system in every case. If we cannot, we feel we have to find an alternative. The alternative we have found is the Inquiries Act 2005.

As to the details of the noble Lord’s amendment, I should like to say this about the various changes he wants to see. To be fair to him, he says that that is a prerequisite before he could consider supporting what we are doing. On the chairmanship of an inquiry established for these purposes, I assure the Committee that we fully expect to appoint a senior judge, in much the same way that Clause 11 provided for a High Court judge to preside at a certified inquest.

As to the other changes the noble Lord has proposed, we remain to be persuaded that they are necessary. Removing the ability to amend the terms of reference of an inquiry into the circumstances of a person’s death might be detrimental to the interests of the bereaved family given that information could come to light which suggests that the terms of reference should be revised. That said—I repeat what I said when I spoke to my amendment—we would expect the terms of reference for any inquiry to reflect the matters to be ascertained by a coroner set out in Clause 5 and it is unlikely that, once set, they will need to be changed.

As to the powers vested in the responsible Minister to suspend an inquiry and restrict public access—something that has exercised the noble Lord, Lord Pannick—we cannot see why different arrangements should apply in the case of an inquiry examining the circumstances of a person’s death compared with any other inquiry which, by its nature, is also likely to be considering issues of considerable public importance. We believe that the decision whether to restrict public access to safeguard national security or international relations should properly rest with Ministers which is what, as I understand it, occurs at the moment.

We would expect the greater part of any inquiry to be held in public. While legal aid is not available, the chairman of such an inquiry may award an amount in respect of legal representation for interested parties. Decisions made by the chairman of an inquiry—for example, to exclude the public from certain parts of it—are open to judicial review. That is all I want to say on this issue tonight. The noble Lord, Lord Pannick, asked whether we will consider what has been said. Of course we will. I want to make it absolutely clear that our position is as it is at present.

Amendments 32 to 36 deal with the relationship between a coroner’s investigation and a public inquiry into the same death. It is entirely appropriate that where an inquiry is established into the circumstances of a death, the coroner’s investigation should be suspended and resumed only if the coroner considers that there are exceptional reasons to do so.

The Bill also provides that an investigation may not be resumed after the completion of an inquiry unless, but must be resumed if, the senior coroner believes there is sufficient reason for resuming it. However, these provisions are intended to cover situations in which the terms of reference of an inquiry will not, or have not, achieved an inquest’s statutory purposes. As I have said, an inquiry held in these circumstances is very likely to have within its terms of reference the coroner’s statutory purposes; accordingly, a coroner would be expected to suspend and not resume his or her investigation in such cases.

Indeed, if the circumstances of the death had been fully investigated by an inquiry, I would have to question the value of resuming the inquest in such a situation, particularly if the coroner did not have access to sensitive material, such as intercept evidence, which had been available to the inquiry.

I recognise that there is no perfect solution to the issue that Clauses 11 and 12 sought to address, and we accept that the approach set out in these clauses does not command the necessary cross-party support. On that basis, I would ask for support across the Committee for the government amendments. I also invite the Committee to think carefully about whether, in the absence of Clauses 11 and 12, it is not right to accept that the only assured way of ensuring that an Article 2-compliant investigation can proceed, while also protecting highly sensitive material that may be relevant to a determination on the circumstances of a death, is to proceed in those very exceptional cases by way of an inquiry rather than a coroners’ inquest. Indeed, the noble Baroness will forgive me if I do not—I should not—refer to any individual case, outstanding or not.

Baroness Miller of Chilthorne Domer: At this hour, I do not want to detain the Committee for long. However, I want to ask a question so that we may think harder about the matter between now and Report. When the Minister introduced the amendment he spoke of circumstances in which an inquest “cannot” be held. Who makes the judgment on that “cannot”? On whose say-so is it that there cannot be an inquest? Is it the same person who orders the inquiry and sets the remit? One of the big difficulties is that somebody is deciding that there cannot be an inquest, and pretty much the same person—I presume it is the Home Secretary, who may say that the inquest cannot be held for reasons of national security—will be setting the remit. That does not seem very satisfactory.

I think that the answer to the noble Baroness’s question is that it would be the relevant Minister. Under our system, matters of national security and other highly sensitive matters of that kind are the responsibility of Ministers. I know that we will come back to this issue.

Amendment 14 agreed.

House resumed.

House adjourned at 10.08 pm.